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Heckler’s Veto Hits Minnesota Law School

By November 5, 2015

In the latest stateside skirmish in the unending Israeli-Palestinian conflict, students at the University of Minnesota (UMN) decided to engage in some vigilante censorship on Tuesday when they disrupted a speech by Israeli academic and New York University professor Moshe Halbertal, who is also a professor of Jewish thought and philosophy at Hebrew University.

Professor Dale Carpenter, who attended the speech, shared his view of the events for The Volokh Conspiracy:

The lecture, which I attended, was delayed half an hour as one by one the protesters stood up to shout denunciations of Israel and were escorted from the hall by university police. One young woman came screaming back into the lecture after having been ejected. Outside the hall, the protesters chanted so loudly that it was difficult to hear Halbertal, much less to concentrate on what he was saying, until 45 minutes after the lecture was to have begun.

Inside Higher Ed has a similar report about the incident, also noting that “[t]he group that organized the protest, called the Anti-War Committee, posted repeatedly to Twitter that the arrests of the protesters were a denial of free speech.” From the reports, though, that doesn’t appear to have been the case. Schools are well within their rights to remove disruptive protestors from speeches like Halbertal’s, and UMN ultimately did so. While a university campus should leave breathing room when possible for non-disruptive audience responses to a speech (for instance, clapping, boos, brief interjections, and silent protests), there’s no question that 45 minutes of constant disruption at the beginning of a speech goes way beyond what speakers, audiences, or venues must tolerate.

In fact, the refusal to remove people who are preventing a speaker from being heard would constitute a “heckler’s veto,” in which the actions (or inaction) of the authorities effectively give hecklers the power to silence a speaker. Different duties for the authorities can arise depending on the situation, but in a case like Halbertal’s, in order to avoid creating a heckler’s veto, UMN had to act to remove the protestors and allow the scheduled speaker to have a chance to be heard.

Disrupting a speech is not, properly understood, an exercise of the right to free speech. (It may be a form of civil disobedience, but engaging in civil disobedience does not relieve someone of legal responsibility for their actions.) While the protesters’ actions may have an expressive purpose, the disruption is ultimately conduct with the primary goal of silencing an opposing viewpoint. Thus, the authorities both can and should act to end the disruption. In the same way that “an eye for an eye makes the whole world blind,” vigilante censorship of one another makes us all deaf.

It’s always unfortunate to see students, or anyone else, succumb to the temptation to take censorship into their own hands. This week’s incident at Minnesota brings to mind the much better-known incident involving former NYPD police commissioner Ray Kelly, who in October 2013 was shouted down at Brown University when he attempted to give a speech on campus. Kelly spoke for about 60 seconds before the disruptive protests began, and left after 27 minutes of being unable to speak. As FIRE’s Will Creeley wrote at the time:

To be clear: Silencing another’s message by sheer volume and force is an exercise in censorship. There is no First Amendment right to shout down a viewpoint with which one disagrees, no matter how deeply felt one’s opposition. As the Supreme Court of the United States has made plain, the “right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted). Justice Thurgood Marshall eloquently explained that “[t]he freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.” Kleindienst v. Mandel, 408 U.S. 753, 775 (1972) (Marshall, J., dissenting). To deem oneself the arbiter of what speech may and may not be heard by others is a breathtakingly arrogant act.

While Halbertal—unlike Kelly—was ultimately able to give his speech, the same principles apply to this week’s sad episode.

To its credit, Brown commissioned two reports in the wake of the Kelly incident, concluding that the protesters’ actions were not in accord with Brown’s commitment to free speech and open dialogue. Likewise, the dean of UMN Law School released a commendable statement saying that it was unacceptable for protesters to “seek to deny other students and community members their own opportunity to hear an invited guest speak. Values of free speech and academic freedom are central to the University’s mission; we disregard them at our peril.” We couldn’t agree more, and we invite the University of Minnesota, a “yellow light” school for free speech, to work with FIRE to eliminate all of its remaining constitutionally questionable speech codes so that it may live up to this lofty statement.

Schools: University of Minnesota