Wednesday, November 22, 2017

Reconsidering the Heckler's Veto Principle

by Michael Dorf

As I noted here last week, on Monday, UC Berkeley Law School Dean Erwin Chemerinsky delivered two lectures at Cornell on "Free Speech on Campus." He was thoughtful and erudite, and I say that because it's true, not only because Dean Chemerinsky said he agreed with everything I said in my preview blog post!

I'm not going to try to recap everything Dean Chemerinsky said. Instead, I want to focus on what he described as a gray area: the scope of the obligation of government--including public universities like UC Berkeley--to pay the added safety costs associated with speakers with highly controversial views.

Dean Chemerinsky recited a fact he has previously highlighted (e.g., here): When conservative columnist/podcaster Ben Shapiro spoke at Berkeley, the university spent $600,000 on security; it was prepared to spend even more for the "free speech week" that Milo Yiannapoulos was ostensibly planning.

Thus, Dean Chemerinsky identified what he described as an open question in the law that is also a problem. On one hand, if a public university where highly controversial speech is planned shuts out a speaker on the ground that security costs are too high due to the risk of violence occasioned by people who oppose the speaker's message, that amounts to a heckler's veto; on the other hand, universities have limited budgets. Dean Chemerinsky asked whether Berkeley would be obligated to spend millions if, say, Yiannopoulos planned and executed a "free speech semester."

Note that this problem is hardly unique to universities. Speakers and groups with extremely unpopular views impose similar security costs on state and local governments when they hold marches and rallies. Must the government spend enormous sums to provide security for neo-Nazis who decide they want to march in some town? The 1992 SCOTUS case of Forsyth County v. Nationalist Movement seems to imply that they must.

Dean Chemerinsky recognized that this is a genuine policy dilemma to which there is no ideal solution. His solution would be to permit the public university to take security cost into account in deciding whether to host a speaker, but to place the burden on the university, if sued, to show that the decision to deny a speaker access was based on an assessment of actual expected security cost--i.e., that the added cost of security was not a pretext for official hostility to the speaker's unpopular viewpoint.

That may well be a reasonable solution, but  it is not valid under Forsyth County, at least as I read the case. When I pressed Dean Chemerinsky about Forsyth County during the Q&A, he said that the case only decided that vesting discretion in a government official to decide how much to charge march organizers for the costs associated with their march was unconstitutional; the case did not reach the question whether charging speakers based on actual security costs would be valid.

With respect, I disagree with this characterization of the case. Forsyth County was a facial challenge to a permitting scheme that granted discretion to a government official to assess a fee for a permit to hold a march or rally. The Nationalist Movement was charged $100. The fee was invalidated on the ground that the scheme granted the official unguided discretion. But the key reason why that discretion was problematic was the risk that it would be exercised so as to charge speakers more based on the increased security costs due to the unpopularity of their message. If a licensing scheme is unconstitutional because it poses the mere risk of charging speakers based on security associated with hostile audience reaction, then surely a fee structure that explicitly takes account of those security costs--like the one Dean Chemerinsky proposes--would be unconstitutional a fortiori.

Dean Chemerinsky offered another reason why, in his view, his suggested alternative would at least fall into a gray area under Forsyth County: If the university did not itself make any determination based on its own disapproval of the speaker's message, he said, but only based on the prediction of security costs by a neutral third party (such as a police department), then there would be no censorship.

That's also a mistaken reading of Forsyth County in my view. There, Justice Blackmun, speaking for the Court, flatly said the following: "The costs to which petitioner refers are those associated with the public's reaction to the speech. Listeners' reaction to speech is not a content neutral basis for regulation." Whether it's the university itself or the police department assessing the security costs associated with an unpopular speaker, the assessment, in Dean Chemerinsky's proposal, takes account of the public's reaction in exactly the way that the Forsyth County Court said is impermissible.

Having said that, I hasten to add that I believe Forsyth County should be limited. Very high security cost should be a valid reason for denying a speaker the opportunity to speak at some particular time or place, even if the consequence of such a rule is to allow and even encourage a heckler's veto. That's not a good solution, but it seems to me more sensible than the alternative, in which an unholy alliance of provocative speakers and violence-threatening counter-protesters chews up a university's or locality's budget, crowding out other vital programs, including other speakers.

To fit that sort of limitation into free speech doctrine, a court could hold that, at a certain security cost threshold, saving the money needed to provide adequate security is a compelling interest. The remaining question would then be what mechanism for allocating scarce resources should be chosen. Under these circumstances, perhaps it would be permissible to follow Dean Chemerinsky's proposal--charge the speakers for the added projected security costs as determined by a disinterested (but not "neutral" in the Forsyth County sense) third party.

Or perhaps Dean Chemerinsky's approach is still more content-based than necessary. One might think that a better approach was suggested by my colleague Prof. Kevin Clermont during the Q&A: At the beginning of the semester, the university would set a budget for non-routine security costs associated with speakers; student groups or others proposing to bring in such speakers would then be selected by lot, with speaking slots thus allocated randomly until the budget is used up. Admittedly, this system would still be somewhat content-based: A speaker with only routine security costs (a lawyer lecturing on the legislative history of ERISA, say) would be automatically entitled to speak because no one will protest (or even attend!) her talk, while a speaker with non-routine costs (a sociobiologist arguing that women are unfit to be scientists, say) would be relegated to the lottery. But this degree of content discrimination would be justified, in my view, on speech maximization grounds. Subjecting the routine-cost speakers to the lottery would greatly diminish the number of speakers.

I don't think that Prof. Clermont's solution is perfect, but there is no perfect solution here, because we have a genuine conflict between two valid propositions: (A) Hecklers shouldn't get to veto speech; and (B) Universities and governments shouldn't have to spend all their resources on providing security for controversial speakers. The best we can do is trade these principles off against each other in some reasonably sensitive way.


Shag from Brookline said...

If the power (of government) to tax is the power to destroy, might the 1st A speech power (of an individual) be the power to increase taxes on the public that might bankrupt public universities, municipalities and other governmental units?

Perhaps controversial speakers respecting to SCOTUS in the vicinity of the Court attracting a large audience of those for and against such speakers involving security issues/costs might be considered by SCOTUS in perhaps reconsidering Forsyth County. (I'm aware of certain limitations on protests in the vicinity of the Court to protect the Court in its conduct of its business. But public universities have concerns with the conduct of their activities.) What might have been some reasonably sensitive ways back in 1791 may not so currently. I imagine that back in the day a controversial speaker on a soapbox in Boston Common might have been ignored or ridiculed by hecklers at very little public expense.

David Ricardo said...

One problem here is that a large group of people, myself included, simply do not believe that the cost of protection of a speaker was anywhere close to $600,000 or that the cost of protecting someone like Ann Coulter is over $1 million. We just do not see how that can be and don't understand the academic community's willingness to just accept a number without question or documentation or audit for reasonableness.

We wonder if some 'creative accounting' is being used to justify an insitution's reluctance to bring controversial speakers onto the campus, not because of restrictions on free speech but where additional cost and risk to the insitution exists and the insitution wants to use a highly inflated cost as pretext.

Shag from Brookline said...

But it isn't just the cost of protecting the speaker that a public institution has to take into consideration. Others attending the event have to be protected as well as property of the institution and persons attending the event. Perhaps risk management analyses can be helpful in calculating potential costs. Controversial speakers sometimes hype their events to exploit their controversial views, to bring in more media, more supporters, more opposers. The institution has to coordinate with public authorities. Meantime, the institution also has an obligation to continue with its regular activities.

Regarding Ann Coulter, I understand she eventually withdrew. Perhaps she felt that she got her message across without needing to actually appear on campus, keeping her brand alive.

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Samuel Rickless said...

Michael, why should the university have to bear the costs? Why not the state itself, given that we are talking about a state university? The state is required to protect speakers, if they have adhered to all reasonable time, place and manner restrictions. The cost of protection derives from the threat of violence caused by supporters of the speaker and protesters. So why not say that, to protect freedom of speech, the state is required, and not merely permitted, to throw the book at those who act violently or threaten to do so?

Analogy. Suppose I want to walk around the block, but every time I walk outside protesters show up and get into fights with my neighbors, making it impossible for me to leave the house. If the state doesn’t intervene, I will be a prisoner in my own house, and the state will have abdicated its responsibility to protect my freedom of movement. Because it is so expensive to send police officers to protect me, day in and day out, the state is required to deter activity that threatens to lock me in my house by imposing heavy penalties and fines on those who interfere with my rights.

Michael C. Dorf said...

Sam, I don't think your approach changes anything. For one thing, I say in my post that the same analysis applies to government units. In the Forsyth County case, the state did spend hundreds of thousands of dollars on security for an earlier event, which is what led to the ordinance that was struck down. And if "the state" spends millions on campus security, that money comes out of the same pot as would otherwise be available for scholarships, etc. So a state university is already the state.

As for throwing the book at violent or threatening counter-protesters, yes and no. That may indeed be a less restrictive alternative than denying speech, but it is not necessarily less expensive. The security measures necessary merely to arrest and then release such people are very expensive. Keeping them in prison for any substantial length of time adds greatly to that expense. Perhaps that would save money in the long run if it deterred violent counter-protest, but I suspect it would just lead to a change in tactics by violent counter-protesters.

Finally, the DeShaney case implies that the state is NOT under an obligation to provide such protection. Maybe it's wrongly decided, but that's a much larger question.

Joe said...

I think the state has a certain "responsibility" here even if they don't (currently) have a constitutional responsibility that is enforceable in the courts in a DeShaney fashion. The facts there are sympathetic ("poor Joshua") but there was a system in place there and some minimum checks on abuse.

greg rubin said...

I am not sure I see the issue. Content based speed restrictions are subject to strict scrutiny not a blanket prohibition. All the University would have to do it make a blanket pronouncement that if the annual security costs of any campus group exceeds $250,000 they must pay for the amount in addition to this. Sure it may lead to some litigation over how to calculate the cost of security but that is literally what courts and negotiations are for.

Samuel Rickless said...

Michael, thank you for your reply. I suppose I am thinking, first, that the state has deeper pockets than each university does. We at UCSD can’t simply borrow money to cover costs, in the way our state can. But you are right that this simply passes the buck, which needs to stop somewhere if the state is to avoid backruptcy. So, second, my suggestion, which might not fit with existing precedent, which was decided under different circumstances, is that severe penalties for violent conduct at demonstrations will serve as a sufficient deterrent to future violent conduct. Publicizing the violence and the trials and sentencing should do the trick. The question is whether the threat of violence should be permitted to quash free speech, even unpopular speech. It shouldn’t. The fact that we are where we are is simply a sign that the state hasn’t treated violent conduct, or the threat of such conduct, with sufficient seriousness. If it did, we wouldn’t be in this pickle. Third, I guess I think that this is something that the state is not merely permitted to do, but is required to do, and this is something the law should reflect.

Greg’s suggestion won’t work because whether someone gets to speak will end up being a function of how much money is backing the speech. And that is inimical both to freedom and to democracy.

greg rubin said...


As the USSC has said, money is speech.