Ask a Lawyer Archive

What Is A Heckler's Veto?

Q. What is the definition of a "Heckler's Veto"? I have looked everywhere. Thanks! -- Matthew Rineer A. Isn't that a great term? The classic discussion of the concept of "heckler's veto" appears in "The Negro and the First Amendment" (1965), by Harry Kalven, Jr., pp. 140-60. "Heckler's veto" refers to a tricky attempt to limit unpopular speech. Say a very unpopular group wants to hold a parade and asks for a permit. The government isn't allowed to refuse the permit based upon the beliefs of the applicants. But the government denys the permit, saying (and maybe really believing) that it isn't because the government disapproves of the group's message, it's just afraid that so many people will be outraged that there might be violent protests. Can the government deny the permit? Nope. Under the Free Speech Clause of the First Amendment, the government may not silence speech based on the reaction (or anticipated reaction) of a hostile audience, unless there is a "clear and present danger" of grave and imminent harm, which isn't easy to prove. Otherwise, a vocal minority (or for that matter, the majority) could always prevent the expression of ideas it does not like. Not only may government may not shut down a speaker out of fear of others' reactions, it cannot punish or disadvantage a person on the basis of his views out of concern that others may be offended or angered by them. Thus, the doctrine has been applied beyond the free speech context to such matters as the rights of gays in the military (saying that the mere fact that some heterosexual soldiers may be offended by homosexuality cannot justify discrimination against homosexual soldiers) and abortion rights (saying that the fear that violent people will create disturbances around clinics does not justify banning clinics). As the Supreme Court put it in Brown v. Louisiana, 383 U.S. 131, 133 n. 1 (1966),"Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence." Makes sense, doesn't it? Without the doctrine of the "Heckler's Veto" (or, more accurately, the doctrine of not allowing heckler's vetos), we would be handing the power to control speech over to the most violent and obnoxious people, and soon we would hear only the views they like. Yikes! -- Susan Gellman