Orin Kerr disagrees with my post about James Percival’s talk at UCLA.
As to whether my description reflects actual events, I based my comments on the version of events in David’s post. He discusses what he witnessed, which looked very different than what video clips purported to show. Blame Dan Kahan.
As to my broader argument, I am looking for some line or metric to define the competing rights. I have not figured it out (otherwise I would have written the article already).
At Orin’s extreme, an audience member cannot hijack the event–in terms of topic, volume, or time–such that the on-stage speaker cannot be heard. At the other end, I do not believe the answer is as simple as “invited speaker says whatever he wants; critics ask hard questions if the speaker deigns to allow it and to answer or engage, otherwise shut up and listen politely.” Somewhere in the middle–again, I have not figured out where–lies a line around which we can define a form of speech/more-speech interaction in which both a speaker and a heckling audience each engages in competing protected free-speech activity.
David offers a nice way to frame the free-speech question: Does an invited speaker (especially a powerful government official) “deserve[] an entirely boo-free, cackle-free, and laugh-free hour”? Does free speech entitle every invited speaker to “an entirely boo-free, cackle-free, and laugh-free hour,” such that those who boo, cackle, and laugh undermine that speaker’s rights and general principles of free expression? Or is booing, cackling, and laughing–in some amount and within some limits–itself protected expression, the “more speech” that Brandeis urged.
In order, my answers are “no,” “no,” and “yes,” if qualified by context and facts.
Update I: One unresolved issue a reader flagged for me: The extent to which a university can impose rules on reserved spaces and what, if any, limits the First Amendment imposes on those rules. That is, whether a university could require an “entirely boo-free, cackle-free, and laugh-free hour” for any speaker1 or whether the First Amendment ensures some rights for audience members and thus limits those permissible rules. Again, I have not worked this out. For the moment, I reject the simplistic reaction–these audience members acted as censors carrying out a heckler’s veto in disregard of free-speech commitments.
Update II: Eric Segall on Judge Ho’s remarks at a panel responding to the UCLA events, which apparently reached peak Judge-Ho-itude. Eric does not share my First Amendment commitments, but recognizes:
Please remember, Mr. Percival said what he wanted to say, albeit with background noise that was likely annoying. What exactly does Judge Ho want UCLA to do? Punish the students who did not remain totally silent during the event? How should those with the power to punish distinguish between normal background muttering allowed at all events from a true heckler’s veto? Those lines are difficult to draw for the best-intentioned administrators.
This seems to support my basic point: Some realm of protected negative audience reaction exists in the free-speech space.
- Note the viewpoint-discrimination that might raise. Since a rule of “total audience silence” is unlikely, the regulation would prohibit booing and cackling but not cheering and supportive laughter, even where neither stops the speaker from speaking or being heard. ↩︎