The “heckler’s veto” is a legal term for allowing a hostile crowd to shout down a speaker or, by threatening violence, cause authorities to shut down a speaker to keep the peace. It has no place in a free society, because both majorities and minorities have a God-given right to speak and be heard.
The heckler’s veto happened in Chicago in 1946. Father Arthur Terminiello gave an inflammatory speech to about 800 Christian Veterans of America, while a hostile crowd of about 1,000 demonstrated outside. Fearing violence, the Chicago police ordered him to stop speaking. When he refused, he was cited for breaching the peace. The case, Terminiello v. Chicago (1949), went before the Supreme Court, which held that, before stopping Terminiello’s speech, the police had a duty to control the crowd if possible. Otherwise, a majority could silence an unpopular speaker simply by threatening violence. This became known as the “heckler’s veto.”
This happened again in Skokie, Ill., in 1977 when the city denied the Nazis permission to march, claiming it might incite the Jewish population to violence. InNational Socialist Party of America v. Village of Skokie (1977) the Court ruled that Skokie must first attempt crowd control, noting that the city had plenty of advance notice to prepare for the event. Again, no heckler’s veto.
The Court didn’t say Chicago and Skokie could never shut down a speaker to avoid a bloodbath. Rather, the Court said free speech is a right of the highest order, and before a city may infringe upon that right, it must first consider the possibility of crowd control. The city may infringe upon the free speech rights of a speaker only if crowd control is impossible.
And now the heckler’s veto has happened in Montevallo, Ala. 1819 News founder Bryan Dawson was scheduled to speak for an event sponsored by the University of Montevallo and Turning Point USA on Feb. 12, but the university indefinitely postponed the event, citing security concerns, including plans for a campus walkout and threats against Dawson’s safety.
Whether Dawson and Turning Point are popular or notorious is irrelevant. TPUSA has a right to hold a meeting on the campus of a public university, they have a right to invite Dawson to be their speaker, and Dawson has a First Amendment free speech right to come and speak, just as Terminiello in Chicago and, yes, even the Nazis in Skokie. The university’s act of indefinitely postponing the event is just as egregious a constitutional violation as that of Chicago and of Skokie – in fact, much more so, for several reasons.
First, the university had the benefit of the Terminiello and Skokie precedents. Any first-year law student could have told them their actions were unconstitutional.
Second, Alabamians passed the Alabama Religious Freedom Amendment in 1998 which provides that the state may not abridge free exercise of religion unless it has a compelling interest that cannot be achieved by less restrictive means. Assuming Dawson and TPUSA were motivated by religious conviction, they have added constitutional protection for their expression.
Third, Alabama enacted the Free Speech on College Campuses Act in 2019, protecting the free speech rights of students and faculty, prohibiting so-called free speech zones, and providing that any restrictions on speech must be narrowly tailored to serve significant institutional interests.
Finally, Montevallo is a state university, and as the Supreme Court said in Shelton v. Tucker(1960), “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” because schools are the bastions of freedom in which ideas are freely exchanged. Rather than suppressing speech because students may become violent, the university has a duty to teach students to respect the rights of others and to restrain them if they do not.
I haven’t talked with Dawson about this, but for all these reasons, I believe he and TPUSA could have an even better lawsuit against the university than Terminiello had against Chicago and the Nazis against Skokie. I hope they sue to protect everyone’s First Amendment rights.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation of Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He and his wife Marleen live in rural Pike Road, Alabama. He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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