National attention has recently been directed to the boisterous protest by Stanford Law School (SLS) students at a Federalist Society Event featuring Judge Kyle Duncan, a conservative Trump-appointed judge on the United States Court of Appeals for the Fifth Circuit. In response to the disruption of Judge Duncan’s remarks, Jenny Martinez, Dean of Stanford Law School, penned a 10-page letter to the SLS community explaining why what some students did ran afoul of Stanford’s free-speech policy, why the actions by those students were not protected by the First Amendment (assuming that Stanford, a private university, should respect First Amendment rights the same way a public university would have to, either as a matter of policy or by virtue of a California statute known as the Leonard Law), and what next steps SLS was taking to prevent recurrence of similar episodes.
Dean Martinez’s letter is quite excellent and adopts (what we think is ordinarily) the right approach to avoiding future replays: better education—rather than punishment—of the offending students. As Dean Martinez points out, punishing those students who crossed what is a “sometimes uncertain boundary line between permissible audience reaction and impermissible disruptions at an event” might be particularly difficult in the Duncan episode because a Stanford administrator present at the event sent, at best, “conflicting signals about whether what was happening was acceptable or not.”
A centerpiece of Dean Martinez’s plan to better educate students (as well as, perhaps, staff) about “freedom of speech [at Stanford] and the norms of the legal profession” is a mandatory half-day educational programming before the end of the current academic year. Dean Martinez’s letter says that she and her SLS faculty colleagues are (rightly) still figuring out the precise contours of this training and will offer more details as they emerge.
In the meantime, in a true spirit of institutional friendship, we thought we would offer our own thoughts about five topics that would be worthwhile to explore in some depth at this training session—or at comparable sessions other law schools might be inspired to hold. In this column and the next one, we itemize and preliminarily explore each of these five questions:
1. What, precisely is “shouting down” of a speaker, and why can such activity be prohibited and punished?
For present purposes, we define shouting down” not simply as booing, hissing, or otherwise expressing displeasure after a particular statement in a speaker’s address, but yelling at the very same moment at which the speaker is speaking—and at which some listeners are trying to listen—with the effect (and likely intent) of preventing members of the audience from actually hearing what the speaker is saying. We think interesting and somewhat open constitutional questions would be raised if government insisted in a public setting that audience members utter no voluntary noises whatsoever—via a rule that sought to punish laughing, cheering, hissing, or even talking—in between the speaker’s sentences. But most all rules we have ever seen—especially in public address settings—do not go that far; they simply prevent “disruption” the way Stanford Law School’s own rules apparently do. And in our view, while the government may have no obligation to regulate or prohibit such interference with speech (with an important caveat discussed below), a properly crafted rule (of the kind most universities have) to prevent it would certainly be constitutionally permissible, and a good idea.
This is a particularly important and foundational topic for the SLS educational program to explore, in part because some really smart people sometimes suggest otherwise. For example, in a posting a few years back, our friend and respected colleague Mark Tushnet of the Harvard Law School wrote:
[W]hen a raucous crowd shouts down the speaker. . . . As far as I’m concerned—and, I think, as far as the First Amendment is concerned—it is okay. The jeerers are simply people attending the rally, no different from the supporters who cheer the speaker. It just so happens that the opponents vastly outnumber, or at least outshout, the supporters. The opponents aren’t the government, so even if they prevent the speaker from getting his message across, that’s just too bad—or it’s speech countering speech.. . . .[M]aybe universities should have unenforceable “civility” guidelines counseling against it. The First Amendment, though, doesn’t say anything either way about heckling.
We find Professor Tushnet’s analysis here unconvincing, and unsupported by anything in Supreme Court case law. First, although we do recognize a First Amendment right to express discontent with what a speaker is saying, when jeering and heckling occurs not just in between the speaker’s utterances, but during each of them, such jeering and heckling seem to us different in kind from speech expressing the heckler’s contrarian point of view, and to cross over into interference with, indeed the silencing of, another speaker’s expression. (That’s what Dean Martinez’s letter means when it says, “the First Amendment does not give protestors a ‘heckler’s veto.’”) When jeerers become obstructers, they are different from “supporters who cheer the speaker,” because (presumably) the supporters are not cheering so loudly precisely when the speaker is speaking that the speaker cannot be heard, and therefore are not interfering with the speaker’s ability to communicate her message and be heard by willing listeners. And, of course, supporters who cheer the speaker typically will respond to requests by the speaker to quiet down to allow a talk to continue. Obstructers, by definition, refuse to do so. A line between interfering with and expressing a negative reaction to speech is not viewpoint based, but (as discussed below) is at worst a content-neutral regulation of the time, place, and manner of speech.
One fundamental reason that disruption can be prohibited is that disruption is not intended to and does not persuade anyone of the merits of the disruptor’s position. Disruption is employed to coerce individuals (that is, the disrupted speakers) to change behaviors (that is, stop speaking), not minds. As such, disruption is actually antithetical to, rather than in furtherance of, the values on which freedom of speech and (at universities) academic freedom are grounded — a commitment to the power of ideas rather than the use of force to change the way that people behave.
In this regard, imagine a hypothetical policy or ordinance that says:
At speeches and lectures on public property for which a permit or reservation is required and has been issued, no individual may obstruct the ability of the featured speaker or speakers to speak in a way that may be heard by the audience. For these purposes, obstruction includes: (1) physically impeding a speaker’s route to the stage or platform from which the address is scheduled to take place; (2) physically interfering with the microphones or other amplification systems used by the event’s organizers to increase the speaker’s volume so that the speech may be heard by the audience; and (3) repeatedly making so much noise, through any means, at the precise moments the speaker is speaking such that the speaker’s words may not be heard by the audience.
Thus, the regulation would prohibit, among other things, physical blockades, tampering with loudspeakers or other sound systems, the use of air horns, sirens, and other devices designed to emit very loud and disruptive noises, as well as “shouting down.” Surely the first three activities can be prohibited. What about the fourth?
As a starting point, consider the following plainspoken language from the California Supreme Court in In re: Kay (a case on which Dean Martinez’s letter also draws):
[The government] retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizens’ rights of free association and discussion. … Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.
That common-sense instinct is quite helpful, but it doesn’t really address how—doctrinally speaking—a law such as our hypothetical regulation should be evaluated. One possibility is to view our anti-obstruction law as a regulation of the time, place, and manner of speech: a city or university would be regulating the time (the precise moments when a speaker at an event for which there is a permit or reservation is trying to speak), the place (the event’s venue), and the manner (yelling so loudly that a speaker cannot be heard) of the jeerers’ shouts. If we were to view it this way, the law would survive, according to cases such as Ward v. Rock Against Racism, so long as it is justified without reference to the content of the regulated speech, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication of the information.
A second approach would characterize the policy not even as a regulation of speech per se, but rather as a general regulation of non-speech conduct (obstruction) that in an instant case may be engaged in to express a message, that is, when the person shouting down the speaker is expressing the shouter’s own critical message. In cases involving the use of conventionally non-expressive conduct to communicate a message, including O’Brien v. United States (the draft card burning case) the test is slightly different: the law must further an important or substantial governmental interest unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedom must be no greater than is essential to that interest.
How do these two standards compare, which should be used, and what should the outcomes under each be?
As applied by the United States Supreme Court, the test employed to review time, place, and manner regulations of conventionally expressive conduct such as delivering a speech, distributing a leaflet, or marching in a parade is somewhat more rigorous than the test employed to evaluate general laws that are directed at conventionally non-expressive conduct but that incidentally interfere with an individual’s ability to engage in such conduct for expressive purposes.
Laws subject to the first of these two tests are arguably more problematic for at least three reasons. First, courts are more suspicious of laws that target speech. Second, courts are more concerned about the impact on speech opportunities of laws that have their primary effect on speech-related activities. And third, meaningful judicial scrutiny in this context does not unduly empower courts insofar as government might be able to recraft laws that target speech to be more general, making judicial scrutiny of the speech-specific laws less threatening.
Thus, for example, if a law bans leafletting in a public park to reduce litter, courts recognize the impact such a law imposes on an important means of communication. And they also understand that the state’s ostensible goal—anti-pollution—could be more precisely accomplished by a law that is more directly tailored to the state’s purpose, a ban on littering (as the Court reasoned in Schneider v. New Jersey).
A general law that is not directed at conventionally expressive conduct is, by contrast, less suspicious. Because the law is not directed at speech, courts are justifiably less skeptical that the law is motivated by a desire to restrict expression. Similarly, if the subject of the law is conduct rarely engaged in for expressive purposes, the impact of the law on the amount of speech that occurs is likely modest or even negligible. Finally, because an individual might claim that he is engaged in virtually any kind of illegal conduct “for expressive purposes,” requiring rigorous review of all such claims would dramatically expand the scope of judicial review.
Thus, for example, when demonstrators challenge a law regulating camping in a public park because they intend to camp in the park as part of a political demonstration, the court evaluates the camping restrictions under very lenient review. As long as some legitimate state interest is furthered by the camping regulation and would be undermined by granting an exemption from it, the law will be upheld (as in Clark v. Community for Creative Nonviolence).
Which standard of review should apply to the anti-obstruction law we described above? Hecklers shouting down a speaker might argue that, unlike draft card burning or camping in a public park, the shouting in which they are engaged is conventional expressive conduct. Speech is still speech even if it is shouted loudly. Thus, the anti-obstruction statute could be reviewed as a time, place, and manner regulation of speech.
But we recognize that the mere fact that a general law is applied to conventionally expressive conduct does not always justify increasing the standard of review. An environmental law limiting pollution will not be reviewed as a time, place, and manner regulation of speech even if it is applied to a smoke-belching plant publishing newspapers. And the delivery truck distributing newspapers has to obey the same traffic laws as every other truck driving on the city’s street. This analogy suggests the anti-obstruction law should receive the lenient standard of review applied in O’Brien—even if the law is applied to conventionally expressive conduct like shouting slogans.
It may be that which standard of review applies depends on additional factors. For the purpose of deciding the proper standard of review to apply, all general laws may not be alike. For example, some laws that as a formal matter are general in scope and not explicitly directed at speech might, in practical terms, apply more often to expressive conduct than non-expressive conduct. Thus, an anti-obstruction regulation applied to lecture halls at a university might more often than not be applied to shouting objections to a speaker’s message and other conventionally expressive conduct, while an anti-obstruction ordinance directed at maintaining safe access to clinics providing abortion services might, in application, limit protestors physically blocking the entrance to the facility. The former law arguably deserves more rigorous review.
However, we need not dispositively answer this question of standard of review to resolve whether government has authority to prevent the shouting down and silencing of speakers, because even under the more rigorous time, place, and manner standard, we think it is clear that the anti-obstruction regulation we described earlier would satisfy constitutional review.
The goal of protecting the ability of speakers to be heard is easily an important state interest. To the extent that anti-obstruction laws limit speech, they do so in the service of promoting free speech values. It is also clear that individuals objecting to a speaker’s message will almost certainly have a range of alternative avenues of communication available to them to voice their protests, without having to shout down the speech they oppose. (More on this in Part Two of this series, but the counter-speakers’ ability to hold a protest of their own—including one in which they air a recorded version of the speaker’s speech and shout over every word of it—will often be a sufficient alternative.) Finally, it is difficult to identify a less restrictive means to achieve the goal of ensuring speakers are able to communicate to the audience that wants to hear them than prohibiting the obstruction of their speech.
As we noted earlier, the constitutional permissibility of anti-obstruction regulations does not, of course, mean that government is required to adopt such policies. Adoption of time, place, and manner regulations is discretionary. For example, it is certainly constitutional, and it may make a lot of sense, for a public library to prohibit loud talking by patrons. But nothing in the Constitution requires librarians to make public libraries a quiet place for study and contemplation.
Yet there is an important caveat here (that we flagged in the introduction). While government may choose not to adopt or enforce time, place, and manner regulations, if and when it adopts such measures it cannot discriminate on the basis of viewpoint. Some government entities might condemn the speech of particular speakers and sympathize with protestors who attempt to disrupt their speech. If disruption and obstruction of some such speakers is permitted, however, government cannot impose more rigorous time, place, and manner regulations to protect speech that it applauds and supports against interference by different protestors. Constitutionally mandated neutrality requirements may well indirectly pressure a city or university to prohibit the obstruction of any speaker. The price of protecting favored speakers against obstruction is the obligation to protect disfavored speakers against obstruction as well.
2. What About the Venerable Tradition of “Civil Disobedience”?
We understand that in any society, individuals may feel compelled to engage in civil disobedience. This respected form of protest does not, however, support a “right” to obstruct, disrupt or shout down, or the related idea that people who do these things should be immunized from the consequences of their conduct. Indeed, we think there are at least three prominent distinctions between the SLS episode and civil disobedience of the kind that has been lauded at various points in U.S. history.
First, civil disobedience in, say, the 1960s involved the deliberate decision to disobey an unjust and unconstitutional set of laws. Students challenged segregated facilities in the Jim Crow South by sitting in at lunch counters and bus stations in violation of the race-based laws in question because those very segregation laws were themselves unjust and unconstitutional. In this respect, the Civil Rights protestors were no different from anyone else who violates an unconstitutional law and later defends on the grounds that the law, because it is unconstitutional, cannot be the basis of punishment. Laws regulating the time, place, and manner of activities in race-neutral, content-neutral, viewpoint-neutral ways that leave open ample other opportunities for expression (and the campus’s regulations have to and do satisfy these standards to be permissible) are themselves (for the reasons we discussed above) neither unjust nor unconstitutional laws.
Second, the communicative power of civil disobedience has often been magnified by the willingness of the protestors to be arrested and (if their legal attack on the laws they violated is rejected) sanctioned for violating the law. The Stanford Law students did not seem willing to accept the consequences of their disobedience, even though the rules they were violating (as distinguished from the speaker they disliked) were themselves unobjectionable.
Third, and relatedly, law students need to appreciate that violation of rules—whether statutes, ordinances, or university regulations—can factor into character and fitness evaluations by state bar authorities. Law students who flout legitimate rules and prevent others from being able to speak may have a great deal of explaining to do to bar admission decisionmakers about why such students can be trusted to be custodians of a legal system and a rule of law that the students don’t seem to respect.
Our next column will take up three additional topics we recommend for a training session on principles of free speech.
