Heckler’s Veto Problem in Free Speech

2012-07-10 20:06:20

Heckling, along with picketing, booing, and other similar forms of expression, often arise when individuals disagree with a speaker’s message. Although the First Amendment protects the right of the speaker to convey an unpopular message free from government intervention, so long as the speech does not contain unprotected fighting words, the government may nevertheless be tempted to regulate the speech out of fear that listeners hostile to the message will be disorderly if the speaker is allowed to continue. Harry Kalven Jr. first described this situation as the ‘‘heckler’s veto’’ because police action which silences a speaker based on fear that the message may offend listeners essentially allows the listener to ‘‘veto’’ the protected but unwelcome speech.

Although the Supreme Court endorsed the heckler’s veto in Feiner v. New York (1951), the Supreme Court later held that charging variable parade fees based on the potential presence of crowds hostile to parade participants violated the First Amendment in Forsyth County v. The Nationalist Movement (1992). In so holding, the Supreme Court stated that ‘‘[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it may offend a hostile mob.’’ In Christian Knights of the Ku Klux Klan v. District of Columbia (1992), the Court resolved the tension between the police’s mandate to protect the public and the Ku Klux Klan’s First Amendment rights by finding that the threat of violence was not beyond the police’s reasonable control so as to justify restricting speech.


References and Further Reading

  • Kalven, Harry Jr. The Negro and the First Amendment. Chicago: University of Chicago Press, 1965.
  • Kalven, Harry Jr., and Kalven, Jamie, eds. A Worthy Tradition. New York: Harper & Row, 1988.

Cases and Statues Cited

  • Christian Knights of the Ku Klux Klan v. District of Columbia, 972 F.2d 365 (D.C. Cir. 1992)
  • Feiner v. New York, 340 U.S. 315 (1951)
  • Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992)

See also Feiner v. New York, 340 U.S. 315 (1951); Fighting Words and Free Speech