College administrators across the country are piously following the doctrine of the “Heckler’s Veto,” making it increasingly difficult to host conservative speakers on campus. The basic principle of the Heckler’s veto is that an individual’s speech can be effectively “vetoed” by a disturbance or the threat of one. This is a dangerous precedent for college campuses because it can be used by administrators as a pretense to silence conservatives.
The Heckler’s Veto first manifested itself in the Federal judiciary during the Civil Rights Era, in Feiner v. New York. Irving Feiner made negative remarks about politicians as he spoke to a crowd regarding the state of civil rights at the time. The police told Feiner to stop speaking, and after he refused, Feiner was arrested on the grounds that his speech was inciting a breach of the peace. The Court ruled in a 6-3 decision against Feiner’s First Amendment rights, because they agreed with the police that Feiner’s speech had the possibility of causing a riot. This ruling was contrary to the precedent previously set by the Terminiello v. Chicago case.
In his dissent, Justice Hugo Black wrote that he believed that there was no evidence a riot was going to occur and that there was no basis for limiting Mr. Feiner’s speech. Justice Black also remarked that this ruling could be used in the future to silence “minority speakers.” Sound familiar?
The Substantial Disruption test established by Tinker v. Des Moines Independent Community School District states that any speech within the school ground should not be limited on the basis that it may cause a disturbance because of disagreement. Unfortunately, the application of this test to third-party speech disruptions is shrouded with ambiguity.
Most recently, in Morse v. Frederick, the precedent was further complicated by a ruling against a student’s right to expression. In this situation, a student displayed a banner that read “BONG HiTS 4 JESUS,” to which the school responded by suspending the student. The Supreme Court upheld the school’s right to suspend the student, with Chief Justice John Roberts noting that the student could be punished only because drugs (illegal activities) were being promoted. The Court reaffirmed a student’s right to make statements based on political and social issues and to do so without fear of punishment. Unfortunately, lower courts have used Morse as a justification for limiting student’s speech beyond the scope of what was intended.
The Ninth Circuit Court of Appeals issued a particularly important court ruling in Dariano v. Morgan Hill Unified School District. In this case, the court argued that under the precedent set by Tinker v. Des Moines, students wearing “disruptive shirts” could be punished. By applying this broad interpretation of the precedent set by Tinker, the Ninth Circuit applied the doctrine of the Heckler’s Veto by basing its ruling on the possibility of disruptions or violence. This set a dangerous standard and indicated that schools’ power to limit student expression has a larger scope.
On college campuses, the doctrine of the Heckler’s Veto is applied both to students and speakers. “Free Speech Zones” are established because of the possibility of speech making students feel threatened. Additionally, some colleges are blocking speakers solely on the basis that their presence at the school will generate violence.
There is hope, however, for some colleges whose administrations choose to address the Heckler’s Veto doctrine. In the case of the University of Illinois school system, the administration released guidelines detailing that they will not condone the use of the Heckler’s Veto. This is a good step forward in maintaining a positive climate on campus.
In schools across the country, the Heckler’s Veto can be harmful to students’ Freedom of Expression. Schools should not abide by this doctrine, and should instead allow students to exercise Freedom of Expression, which fosters an environment of beneficial and civil discourse.
If you would like to learn more surrounding the history and cases behind the Heckler’s Veto, I recommend that you read this Cornell Law Review article.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.