Free Speech’s Shrinking Circle of Friends

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Liberals and even some conservatives embrace the ‘heckler’s veto’ threat to the First Amendment

Barry A. Fisher writes: An essential freedom-of-speech paradigm was established in 1949 by the Supreme Court in Terminiello v. Chicago. In that case a vitriolic, racist speaker spoke to an auditorium packed with supporters. Outside the auditorium was what was described as “ ‘a surging, howling mob hurling epithets’ at those who would enter and ‘tried to tear their clothes off.’ ” The police blamed the mob’s action on the speaker, Arthur Terminiello, a Catholic priest under suspension by his bishop. He was convicted of disturbing the peace and fined.

“University of Chicago law professor Harry Kalven Jr. would later coin the term “heckler’s veto” to describe what would have happened had the court decided otherwise. First Amendment rights could be “vetoed” by others who create a public disturbance that forces the silencing of the speaker.”

The Supreme Court, in a 5-4 decision, reversed the conviction and ruled that Terminiello’s speech was protected by the First Amendment. The court said that the police, instead of taking action against the speaker, should have protected him and controlled the crowd, including making arrests if necessary. University of Chicago law professor Harry Kalven Jr. would later coin the term “heckler’s veto” to describe what would have happened had the court decided otherwise. First Amendment rights could be “vetoed” by others who create a public disturbance that forces the silencing of the speaker.

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Sony ’s recent crisis over the film “The Interview”—along with the domestic political correctness and anti-hate speech movements, various international agreements and globalization itself—is leading the country precisely toward a heckler’s veto.

There is growing support, including among academics and racial and religious advocacy groups, that what they define as hate speech…Law professors have concocted influential concepts like ‘outsider jurisprudence,’ ‘critical race theory,’ ‘critical feminist theory’, and ‘storytelling’ theory to define some kinds of politically incorrect speech as not speech at all, but ‘mechanisms of subordination.'”

Protesters have silenced speakers on several occasions this year, sometimes with the law’s support. In February a panel of the Ninth Circuit Court of Appeals upheld a California high school’s decision to prohibit students from wearing American-flag T-shirts on Cinco de Mayo “to avert violence.” In August a panel of the Sixth Circuit Court of Appeals upheld the ejection of an anti-Islam Christian group from an Arab festival in Dearborn, Mich., on the theory that the group’s speech would incite festivalgoers to violence. (In October the full court agreed to reconsider the decision.)

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In December protesters against the non-indictment of a police officer in Ferguson, Mo., stormed into an auditorium at the University of California, Berkeley, and shut down a speech by Internet entrepreneur Peter Thiel . And during the past academic year, protesters caused the cancellation of commencement addresses by former U.S. Secretary of State Condoleezza Rice at Rutgers University, and International Monetary Fund Director Christine Lagarde at Smith College.

The International Covenant on Civil and Political Rights (which the U.S. Senate ratified, but with several “reservations” that may have rendered it toothless for now) nominally protects free expression, but requires state parties to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination.” The Organization of the Islamic Conference has repeatedly sponsored resolutions in the U.N. Human Rights Commission against the “defamation of religion.”

Meanwhile, globalization itself poses challenges….(read more)

WSJ

Mr. Fisher is a partner in the Los Angeles law firm of Fleishman & Fisher. He has litigated free-speech cases in state and federal courts including the Supreme Court, and has served as vice chairman of the American Bar Association First Amendment Committee.


One Comment on “Free Speech’s Shrinking Circle of Friends”

  1. Centinel2012 says:

    Reblogged this on Centinel2012 and commented:
    Free Speech is exactly that the constitutional right in the United States to say what is on your mind. There must not be ANY limits placed on that right! If others don’t like what is said they can leave and they have the right to speak their mind about what they don’t like. Hidden emotions are much worse than those that are in the open and released!


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