The Heckler's Veto

Great Debates
1

In legal parlance, the “Heckler’s Veto,” occurs when the government stops activity that would otherwise be protected by the First Amendment – not because of a disagreement with the content, but out of concern for public safety. For example, we might imagine the KKK gearing up to hold a “white pride” rally, a perfectly constitutional activity. But the town, which had granted them a permit, sees a growing crowd of angry anti-Klan demonstrators massing outside the rally grounds, fears that disorder is imminent, and cancels the event.

The term is also used more loosely to describe non-government action; a speaker who cannot continue his speech because protesters storm the auditorium and shout him down might be said to suffer a heckler’s veto, even though no government action occurred.

I have this same feeling when I read Boyo Jim’s ode to Jacob Isom, a young man who snatched the lighter-fluid soaked Koran away from some idiot who was about to torch it.

I can’t say I disagree with Isom. His simple solution deserves applause. “Yoink!” and the Koran is gone, protected from a truly repulsive act.

But I wonder how many of us would cheer if Isom were a crew-cut National Guardsman, yanking a flag away from a protester wanting to burn it. I would hazard a guess that more than one person here might express outrage, and point out that the act is theft: the flag burner presumably owned that flag and had every right to burn it.

My own reaction in that case would have been: flag burner, you’re right. Go find a cop and swear out a complaint. But while I’ll acknowledge the illegal act by the Guardsman, I won’t berate him for doing it.

Same thing here. I’ll admit Isom committed theft. And if the would-be burner wishes to pursue his remedies, go ahead. But I won’t condemn Isom for his actions.
This thread isn’t about Isom (after all, Boyo Jim laready has a thread for that! This thread is about the quasi-heckler’s veto, the aspect of private actors shutting down the speech of others, and about the actual legal heckler’s veto issue, where private actors’ conduct forces the government to shut down speech for reasons of safety.

There are no good answers here, but I thought discussing some of the ideals placed in tension by these competing goals would make a good debate.

2

The Fox sponsored shouting down of the health care town halls is another example, though not at all noble as is stopping the burning of a flag or a Koran.

3

It seems like it’s a slippery slope to vigilantism.

4

Sure. Any “exercise of free speech,” that is intended to simply make it impossible for your opponent to exercise HIS free speech is, I think, suspect.

5

Well, this gets into some gray areas of the law pretty quickly. The Koran or flag burner could be charged with creating a nuisance or disturbance pretty easily most places - even without referencing specific flag burning or Koran burning ordinances. Similarly, the people accosting the troublemakers can be charged as well for essentially the same thing.

I don’t regard this as a big deal in practice - IRL a good cop will try to neutralize disturbances and a prosecutor and the courts should be guided by discretion and de minimis.

6

Sooooo…sitting on the Guardsman’s jury are you saying that you could understand jury nullification?:wink:

7

I am amused by Isom’s act (and phraseology) but I agree with your point here: he totally stole that dude’s Koran (assuming it was that dude’s Koran to begin with). My firm opinion on the burning of flags and books is that you’ve got the right to do it (fire and other public safety ordinances permitting) and I’ve got the right to call you a dumbass for doing it.

I agree with you again. Excuse me while I go check the weather report for the city of Dis.

8

Not sure I see a huge problem here.

As mentioned the person who had whatever snatched from them can press charges.

We can sit on the sidelines and applaud or condemn the person who did the snatching as we like.

As for the guardsman I’d say there is a different issue there. If he is there as a guardsman he is there as a representative of the government…in a way.Maybe he acted under orders or maybe he just did it but either way there is more of an issue than just some dude walking by and grabbing the flag.

Also I think the Town Meeting upsets were a little different. At least in scale. Nabbing my flag or Koran is one thing. Upsetting me in an expensive auditorium I rented to discuss issues and having that shut down by someone yelling is more harmful. Still, I figure it is then my right to bounce the person out of the auditorium and/or sue them. I imagine an auditorium rental fee being levied at someone would cool their heels versus the cost of a flag or Koran.

9

No, no. Sadly, I’d have to vote to convict him.

10

We can make him a former Guardsman. The point of my hypo was to select a sympathetic character who might be prone to defend the flag.

11

This thread is an outrage! I want it shut down NOW!
:mad:

12

OK, gotta hand it to you, you’re consistent.

13

Why would this get a jury trial? Wouldn’t most prosecutors just drop the case or accept a plea?

I understand that to illustrate a legal principle it might be nice to imagine the Guardsman at trial, but doing so requires ignoring certain other principles, right?

14

I’ve always thought something like a fine under a general statute prohibiting illegal burning is the way to go for would-be book or flag burners. It turns Mr./Ms. I’m Gonna Make A Statement into just another low-rent public nuisance. Disrespect whatever symbols you want, just don’t foul the air, create litter or other sanitary problem.

15

Of course it’s unlikely, but since he’s a hypothetical Guardsman, we can certainly grant him a hypothetical trial.

16

Do you know how crowded the hypothetical courts are? Hypothetically, would it be possible for prosecutors and the defense to come to some sort of settlement?

17

That’s the most likely, since any prosecutor would know a jury would be loathe to convict.

18

A private citizen would be stealing whether it is a Koran or flag that has been taken. The value of such items might be very low, or very high depending on the item. But it’s symbolic status isn’t really part of it’s value. A conviction would be justified under the law. Despite the noble intentions, no one is being saved from harm. A judge should consider the circumstances in sentencing. The object was not stolen for material reasons, and presumably was not destroyed by the snatcher who was trying to save it. It could be returned to the owner, who had not have suffered any loss once the object was returned. A judge who would mete out any punishment more than a token fine should be condemned in the simple case described.

If it’s a guardsmen, on duty, or in unform, he should be treated as if the it were any other theft in those circumstances. Any patriotic intention in the act should be disregarded as a matter of guilt or innocence. Otherwise a guardsmen might as well kill someone, and claim patriotic intent. Agents of the government should not engage in civil disobediance while performing their jobs.

I am assuming that the snatched object is owned by the person from which it was taken. Whatever laws apply to taking something from someone who does not own it should apply. We are also not talking about unjust laws here.

I would applaud a person who engaged in act of civil disobediance for a noble cause, but part of the courage of conviction is suffering the consequences of such actions. That does not require the government to use its discretion when considering prosecution either.

As far as flag-burning in general, there is a tremendous difference between a person who burns a flag that they own, and someone who steals a flag to burn. I can hardly consider destroying a stolen flag to be consistent with any ideal. If a person wants to burn their own flag, they shouldn’t be subject to regulations not intended to be applied in the circumstances, which would infringe on their right to free speech. So an open flame law intended to prevent forest fires shouldn’t be applied to a person who burns a flag on a paved area, away from any forest or other similar flammable material. A person should not be charged with public nuisance if that nuisance is simply the expression itself.

19

This will be the first in a fifty-post series about my cat.
His name is Caramel.

More to follow.

20

I’m deeply conflicted about this. On the one hand, I really don’t want free speech being shut down by terrorists. That sets a terrible precedent. Argumentum ad baculum is completely unacceptable.

But on the other hand, I don’t want innocent people to get killed.

If it were purely the Koran burner who was putting himself at risk, I wouldn’t have much problem with it. I might even cheer him on for his bravery. But unfortunately, innocent third parties who had nothing to do with this may very well be murdered in retaliation.

I’m not sure I can either give praise or blame to either the would be book burner, or the person who snatched the book. :dubious: