Defending the Judeo-Christian Ethic, Limited Government, & the American Constitution
Tuesday March 31st 2015

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Repointing the Constitution, by Justice Janice Rogers Brown

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Actually, Some Heckling Is Free Speech

Peter Bonilla, TheFIRE

Recently, National Public Radio’s Linton Weeks published a piece offering some thoughts on heckling—something we at FIRE have certainly encountered many times as a defender of free speech. Given our voluminous experience in this area, we’re sensitive to the mistake that Weeks makes in characterizing our position on the rights of speakers facing hecklers.

Is a heckler protected by the First Amendment? This is up for debate — depending on where and how and why the heckling occurs. Heckling at a hockey game is not considered the same as heckling at a campus lecture. Organized disruption is often treated differently from individual outbursts.

According to the National Lawyers Guild, “Although the law is not settled, heckling should be protected, unless hecklers are attempting to physically disrupt an event, or unless they are drowning out the other speakers.”

On the other hand, the Foundation for Individual Rights in Education maintains that if free speech is protected, it should also be protected from disturbance and interruption.

Though Weeks suggests otherwise, we agree with the National Lawyers Guild here: Heckling isn’t by its very nature unprotected, and speakers don’t have the automatic right to be free from all heckling of any kind. (I suspect Weeks’ mistake is unintentional, but we wanted to make sure to set the record straight.)

This does not make the position attributed to us—that “if free speech is protected, it should also be protected from disturbance and interruption”—necessarily wrong. It is incomplete, however, because it fails to account for hecklers who may be able to engage with the speaker without violating his or her First Amendment rights. For a general example, a solitary shout from a heckler may momentarily interrupt a speaker, but if the heckler causes no further disruption and does not attempt to silence the speaker, then the heckler may still enjoy First Amendment protection. As the NLG points out, it’s when the heckler’s speech suppresses the rights of the speaker that the heckler forfeits his claim to be engaging in free speech. And, as Weeks notes, context is important.

Make no mistake: When a heckler thinks he or she has the right to forcibly prevent others from hearing a speaker and uses heckling as a blunt instrument to silence speech, heckling cannot be condoned as free expression. In his article, Weeks links to a discussion here on The Torch of an incident at the University of California, Irvine where students attempted to shut down a speech by Israeli Ambassador Michael Oren (for which they were later prosecuted). As Adam notes in that post, a coordinated effort to silence a speaker “is not an exercise of free speech.” I would encourage those interested in our take on heckling to read this post, which was prompted by the same incident and supported with statements from American Association of University Professors President Cary Nelson and Harvard Law School Professor Alan Dershowitz. It points out that the rights of speakers, their audience, and their critics “need not be in conflict, so long as there is no effort to prevent the speaker from conveying his point of view to the audience.” From what the NLG is quoted as saying here, I suspect they don’t disagree.

Peter Bonilla joined FIRE as a Program Associate in 2008 and became Assistant Director of FIRE’s Individual Rights Defense Program in 2011. As Assistant Director he manages FIRE’s significant caseload, writes frequently for FIRE’s blog, The Torch, and has lectured to student groups and at student conferences around the country.

Used with the permission of the Foundation for Individual Rights in Education.