The Heckler's Veto: Alive And Well

Last week the Supreme Court declined to hear Dariano v. Morgan Hill Unified School District, a Ninth Circuit case that held that a school district could stop high school students from wearing American flag t-shirts because other students celebrating Cinco de Mayo had reacted to them violently. I wrote about the case when the incident happened in 2010.

The Supreme Court's refusal to hear the case is not necessarily a bad thing for free speech. The Court, in recent years, has reliably upheld high schools' power to censor, and there's good reason to fear that it would have done so again here.

The Ninth Circuit said it wouldn't second-guess the leadership of Live Oak High School, which concluded that some students wearing American flags on Cinco de Mayo might provoke violence from other students. The record supports that fear, and I don't dispute the school administrators' concerns. What I dispute is the notion that it's acceptable to suppress core protected speech because some bad actors may or may not react violently to it. That's the classic "heckler's veto" — the idea that miscreants can govern whether or not I get to speak through their reactions to me. When possible the rule of law should protect the speaker, not indulge the bad actor, or else the law is nothing but an incentive to act badly.

Dariano is not an anomaly. Particularly in the security-obsessed wake of 9/11, courts have been deferential to the state's fears of violence. A more recent Ninth Circuit case illustrates the point. In Seattle Mideast Awareness Campaign v. King County, the Ninth Circuit upheld King County Metro's decision to decline advertisements about the Isreali-Palestinian conflict. Metro had initially accepted this advertisement:


This is America, and we're outraged by people expressing opinions we don't like. That's fine, as far as I'm concerned, if we express our outrage through contrary opinions. But too many of think that bad opinions justify bad behavior. So instead of debate we get threats:

Before the ad ran, a local television station broadcast a news story about the ad’s approval, which provoked an unprecedented, hostile response. Metro’s Call Center, accustomed to managing an average of 50 to 80 emails per day, received 6,000 emails over the span of ten days, almost all of them urging the County to pull the ad. The messages varied in tenor, but several expressed an intent to vandalize buses or disrupt service. For example, one message said: “AN ATTY WHO SAYS THE SIGNS ARE PERMITTED UNDER THE FIRST AMENDMENT IS FORCING ME TO CONDUCT VIOLENCE JUST TO PROVE THAT I AM REALLY UPSET AT THESE HORRIBLE WORLD WAR2 KINDS OF HATRED SIGNS.” Another stated, “I think I will organize a group to ‘riot’ at your bus stops.” Metro’s Call Center also received a deluge of angry telephone calls. One repeat caller promised to block a tunnel to stop buses from running, while another said that “Jews would take physical action” to prevent the ads from going up.

. . .

As the uproar mounted, Metro employees became unable to read or listen to each message, much less respond to all of them. Metro officials tried to identify the most disturbing emails and phone calls for purposes of investigation by law enforcement. This process brought Metro’s internal operations to a halt.

Note that, in this particular instance, the message provoking the outrage was "liberal" and the violent threats "conservative."

Metro reacted by re-interpreting its regulations to exclude all political or ideological advertisements. That ban applied not only to the advertisement described above, but to other pending ads from the other side like this:


The district court rejected the advertisers' First Amendment lawsuit, and last month the Ninth Circuit — in an opinion written by Paul Watford, a former colleague and one of the smartest people I know — upheld that decision and endorsed Metro's new policy.

The Ninth Circuit's decision turns on the distinction between a public forum and a limited public forum. The First Amendment makes it very difficult to limit speech in the former, but easy in the later.

The Supreme Court has classified forums into three categories: traditional public forums, designated public forums, and limited public
forums. Int’l Soc’y for Krishna Consciousness, Inc. v. Lee (ISKCON), 505 U.S. 672, 678–79 (1992). In traditional and designated public forums, content-based restrictions on speech are prohibited, unless they satisfy strict scrutiny. Pleasant Grove, 555 U.S. at 469–70. In limited public
forums, content-based restrictions are permissible, as long as they are reasonable and viewpoint neutral. See id. at 470.

That's why the government can prevent people from annoying you in the airport, but not in (for instance) the park.

The Ninth Circuit decided that Metro's bus advertisements were only a limited public forum, which effectively determined the result. In doing so the court dissented from decisions by other Circuits. Noting that Metro's rule prohibits content that "is so objectionable under contemporary community standards as to be reasonably foreseeable that it
will result in harm to, disruption of, or interference with the transportation system," the court — by explicit analogy to school free speech cases — found that standard content-neutral and sufficiently definite and objective. The court also found that the record supported applying the ban in this instance:

The County identified three types of potential disruption, each of which is supported by the record: (1) vandalism, violence, or other acts
endangering passengers and preventing the buses from running; (2) reduced ridership because of public fear of such endangerment; and (3) substantial resource diversion from Metro’s day-to-day operations.

The court also rejected the concept that Metro should have responded to threats through law enforcement action, saying that under the lenient standard applicable to limited public fora the government need not apply the least restrictive means of achieving the goal of safety.

Finally, the court rejected the argument that Metro's policy effectively granted a heckler's veto. The court's logic is odd: it suggests that the heckler's veto is not a concern because although the ban is not content-neutral (because it singles out speech about the Israeli-Palestinian conflict), it's viewpoint-neutral because it bans all points of view on that subject.

The “heckler’s veto” concerns raised by the dissent would be troubling in a traditional or designated public forum, but
they do not carry the same weight in a limited public forum. Excluding speech based on “an anticipated disorderly or violent reaction of the audience” is a form of content discrimination, generally forbidden in a traditional or designated public forum. Rosenbaum, 484 F.3d at 1158. In
a limited public forum, however, what’s forbidden is viewpoint discrimination, not content discrimination. That does not mean “heckler’s veto” concerns have no relevance in a limited public forum: A claimed fear of hostile audience reaction could be used as a mere pretext for suppressing
expression because public officials oppose the speaker’s point of view. That might be the case, for example, where the
asserted fears of a hostile audience reaction are speculative and lack substance, or where speech on only one side of a contentious debate is suppressed.

That strikes me as a serious misreading of the danger of a heckler's veto. A heckler's veto is not just harmful when it prohibits discussion of one viewpoint; it's also insidious when it drives a particular subject from a forum entirely. Here I agree with Judge Christen, who dissented in this case:

The court’s opinion suggests the government may open and shut a forum, willy-nilly, in response to public uproar—a particularly dangerous precedent in light of modern technology. Emails, text messages, and tweets can zing through the airwaves to and from countless devices in a matter of seconds, generating scores of impetuous responses just as fast. Given today’s modern and often anonymous communication technology, public outcry can be frequent and
fleeting. Granting the government license to close a forum it previously made open in response to such outcry confers broad power on hecklers to stamp out protected speech they find objectionable.

That's exactly right. Anonymous threats are an increasingly common and popular response to controversial speech. Technology makes them minimal-cost and nearly without risk, except for the lazy or sloppy. Decisions like this make them effective. Moreover, this decision implies that even a non-threatening angry response can be effective — if Shouty McAngrypants, talk show host, encourages a barrage of listener telephone calls to a public agency, this decision seems to endorse the decision to yank the subject from a limited public forum rather than endure the calls.

Dariano's message might be taken as "if you don't like the message on your high school classmate's t-shirt, start a rumor that someone's going to kick the shit out of him." This decision's message is "if you don't like the message in a limited public forum, send anonymous threats or orchestrate a mass response." These are the wrong incentives. Certainly government can strive to protect citizens from harm, and can try to preserve its own functions. But stopping expression to indulge angry people should be the last resort, not the first. Americans need too little incentive to act badly in the face of speech they don't like.

Last 5 posts by Ken White


  1. Mercury says

    This is a weak case to try and bring to SCOTUS in the first place because it doesn't demonstrate the double standard that is almost certainly being applied here.

    It's probably a safe bet that the school district wouldn't ban Cinco de Mayo T-shirts no matter how much of a 'violent reaction' they provoked.

  2. Mikee says

    Cinco de Mayo is such an interesting holiday. Most Mexicans in Mexico let the day come and go without much fanfare at all, it's no longer a national holiday, but just a state holiday in the states of Puebla and Veracruz. Japan uses it as a celebration of all of the Americas, not just Mexico. It's almost akin to Mexico celebrating on July 3rd to commemorate the Battle of Gettysburg, even though few people in the USA celebrate the day.

  3. says

    @Mercury: I can't speak for Morgan Hill, but I find it very easy to believe that a school district would ban Cinco de Mayo T-shirts in my home state of Arizona.

  4. says

    Walker v. Texas Division, Sons of Confederate Veterans may end up saying something relevant to these arguments, in the way of discussing what restrictions are possible in an open specialty-plate program. Texas's first argument is that specialty plates are government speech, and I'll be astonished if it succeeds. Assuming that fails, Texas's program is some sort of designated or limited public forum where viewpoint neutrality would apply. In their fallback position, they claim that excluding pro-Confederate flag plates is viewpoint-neutral because they haven't allowed an anti-Confederate flag as well, which seems pretty relevant to the questions raised by the transit-ad program. (And about as ridiculous as the government-speech argument, but at least not as circular.)

    (I went to argument in the Texas SCV case, so every free speech case these days seems to be affected by that case. :-) Ride that hobbyhorse!)

    Also, you ought to be ashamed that you mis-linked annoying you in an airport.

  5. cecil says

    Anti-confederate flag would be a US flag? That's the decendant of the union is it not?

  6. Castaigne says

    @Ken White:

    That's fine, as far as I'm concerned, if we express our outrage through contrary opinions. But too many of think that bad opinions justify bad behavior. So instead of debate we get threats

    This is honestly where you always confuse me. Why are people supposed to debate instead of make threats? What's wrong with threats? I dunno, maybe it's because I'm not a libertarian and I consider force to be a valid method of doing things, but to me speech is speech – why not support the threats, since they're speech and thus the equivalent of all other speech? Isn't all speech value-neutral? (Morally/ethically speaking, not legally speaking.)

  7. says

    Yeah, "anti-Confederate flag" isn't very good wording. What I meant was that Texas also hadn't approved designs disparaging the Confederate flag or Texas SCV's views, so Texas argued Texas SCV couldn't say their viewpoint had been discriminated against, in comparison. The quote in the OP from Judge Christen almost exactly applies to Texas as well (possibly excepting the "previously made open" bit, as Texas's rules predated the uproar).

  8. Grifter says

    Wait though. …the school wasn't being viewpoint neutral were they? Didn't they allow the Cinco De Mayo shirts?

  9. AlphaCentauri says

    This is why a lot of districts have gone to uniforms. The only thing different at that school is that the US and Mexican flags were effectively being treated as "gang colors" by ethnic gangs. If they can't be allowed nice things, they ought to have to wear uniform polo shirts in a prescribed color. And if there's still trouble, the uniform shirt can be modeled after the retro-McDonalds shirt until they learn to behave.

  10. says

    While I abhor all the decisions mentioned in this article, there are some unique issues with the bus ad case. Printing an ad on the side of buses is different from merely allowing the speech of an individual in a public forum. With the bus ad, the governmemt accepts payment from the speaker and without a doubt passes some muster over the nature of the speech (even if political speech is allowed obscenity would not be). The government than prints the speakers message for them on the buses.

    My point is that in the bus scenario the government is not allowing speech but speaking on anothers behalf. Its not unreasonable for someone seeing such an ad to, knowing the government owns and operates the buses, interpret the ads as speech the government aproves of and encourages. Imagine am advertisement for a local church, synagogue or mosque.

    So long as the buses are owned and operated by the government it is IMO limited by the constitution in the forms of speech it could print on the sides of the bus. Again, the ad is not merely the speech of a pqrty, but speech the government engages in at the behest of that party.

    Its worth pointing out that these issues could be entirely corcumvented through the privatization of the bus system in question.

  11. Lee says

    Isn't this just an example of 'fighting words', which is a well understood exception to free speech rights?

  12. says


    No. The "fighting words" doctrine is very limited. It applies to in-person face-to-face insults likely to provoke an immediate violent reaction.

  13. GuestPoster says

    Hmmm, school speech I find to be an interesting, less straight forward topic than many. In an ideal world, yes, you'd just take the offended people aside and deal with them separately. But this isn't an ideal world – we have neither time nor money to take such an approach. As such, we come down to: what is the purpose of the school? That's to teach/educate/lecture/pick your word of choice. What sort of atmosphere does that work best in? A reasonably calm one.

    So, if somebody is wearing an outfit (in this case) which, for whatever reason, creates an atmosphere which is difficult to impart instruction in – why should the school NOT be allowed to take the quickest, most cost effective remedy to restoring order and ability to educate? Yes, the student has a right to free speech (theoretically. Goodness knows we treat children as sub-human when it comes to rights all the time). But the OTHER students have a right to an education. When the two come into conflict, as they seem to have here – which one trumps the other?

    Frankly, I think I look at this much like singing a song during class. Yeah, you have the right to speech – but that doesn't mean you have the right to make that speech here and now. I guess that's the public form-type issue. School isn't really a place for making speech happen – it's a place for absorbing knowledge. And in a perfect world, the two would go together. But this isn't a perfect world, and it's not even a near-perfect world in this situation.

    So we tell the student to put on a different shirt, and get back to learning. Because the rights are in conflict, and a call has to be made.

  14. Richard says

    @cecil, @Jeff Walden:

    An anti-confederate flag would just be a confederate flag with a big X on it. Make it blue, because red is so cliché, and put a few stars to highlight the X. That'll indicate your distaste for said flag.

  15. David Schwartz says

    @GuestPoster: Because that kind of system is easy to manipulate by people who want to control what is said and heard. Don't want ads that disagree with your viewpoint? No problem, just threaten to riot. Don't want students to wear shirts that oppose your favorite policy? No problem, just start a rumor that there will be a fight.