Costs and Challenges of the Hostile Audience

Frederick Schauer*

In my own newly famous city of Charlottesville, Virginia,¹ as well as in Berkeley,² Boston,³ Gainesville,⁴ Middlebury,⁵ and an increasing number of other locations,⁶ individuals and groups engaging in constitutionally protected acts of speaking, marching, parading, protesting, rallying, and demonstrating have become targets for often-large groups of often-disruptive counterprotesters.⁷ And although most of the contemporary events have involved neo-Nazi, Ku Klux Klan, and other white supremacist speakers who are met with opposition from audiences on the political left, it has not always been so. Indeed, what we now identify as the problem of the hostile audience⁸ has often involved more sympathetic speakers confronted by less sympathetic audiences.⁹ Yet although the issue is hardly of recent vintage, contemporary events have highlighted the importance of reviewing the relevant constitutional doctrine and of thinking again and anew about how, if at all, the government and the law should respond to the disruptive audience. Indeed, the immediacy of the issue is exacerbated by the way in which existing legal doctrine on the question is less clear than is often supposed. It is now widely believed that restricting the speaker on account of the actual or predicted hostile and potentially violent reaction of the audience gets our First Amendment priorities backward.¹⁰ But it is hardly clear that this belief was ever correct, and, even if it were, it is even less clear that it is sufficient to deal with the constitutional and policy complexities of many of the contemporary encounters.¹¹ It seems appropriate now to revisit this problem of the hostile audience, not so much to urge a change in existing understandings and legal doctrine as to emphasize how many open questions still remain, and how current events might bear on possible answers to these questions.

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© 2019 Frederick Schauer. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*David and Mary Harrison Distinguished Professor of Law, University of Virginia. This Article was written for the Notre Dame Law Review’s Symposium on The Marketplace of Ideas a Century Later. An earlier version of this Article was prepared, under the title, The Hostile Audience Revisited, for the Knight First Amendment Institute at Columbia University as part of their “Emerging Threats” Series, and was presented as well to the faculty at Penn State Law. I am grateful to Leslie Kendrick, David Pozen, and Alex Tsesis for valuable comments on earlier drafts, and to my colleagues Ken Abraham, Rachel Harmon, John Harrison, Risa Goluboff, and Ted White for useful information, challenging perspectives, and the patience to endure far too many of my questions.

1 For extensive description and analysis of the now-notorious events arising out of the “Unite the Right” rally in Charlottesville in August 2017, see Frederick Schauer, In the Shadow of the First Amendment, in Charlottesville 2017: The Legacy of Race and Inequity 63 (Louis P. Nelson & Claudrena N. Harold eds., 2018). The most detailed account of all that took place is contained in the report commissioned after the events by the City of Charlottesville. Hunton & Williams, Final Report: Independent Review of the 2017 Protest Events in Charlottesville, Virginia (2017), https://www.huntonak.com/ images/content/3/4/v2/34613/final-report-ada-compliant-ready.pdf. For a brief discussion of the events leading up to the protest, see Kessler v. City of Charlottesville, No. 3:17CV00056, 2017 WL 3474071 (W.D. Va. Aug. 11, 2017), which enjoined Charlottesville from requiring relocation of the previously authorized rally. And although the ninety-six page complaint in the civil action of Sines v. Kessler is only a complaint and neither an adjudication nor an unbiased account, it contains a wealth of valuable and seemingly accurate information about the events at issue. See Complaint, Sines v. Kessler, 324 F. Supp. 3d 765 (W.D. Va. 2018) (No. 3:17-CV-00072). Much of this is also explored and explained in the court’s opinion. See Sines, 324 F. Supp. 3d 765 (denying motion to dismiss).

2 See Jacey Fortin, Free Speech Week at Berkeley Is Canceled, but Milo Yiannopoulos Still Plans to Talk, N.Y. Times (Sept. 23, 2017), www.nytimes.com/2017/09/23/us/milo-berkeley-freespeech; see also Madison Park, Ben Shapiro Spoke at Berkeley as Protesters Gathered Outside, CNN, https://www.cnn.com/2017/09/14/us/berkeley-ben-shapiro-speech/index.html (last updated Sept. 15, 2017) (discussing the events surrounding a speech at Berkeley by Ben Shapiro).

3 See Katie Reilly, Thousands of Counter-Protesters March Against White Nationalism in Boston a Week After Charlottesville, Time, www.time.com/4907681/boston-free-speech-rally-protests-charlottesville (last updated Aug. 19, 2017).

4 See Frank Cerabino, White Nationalist Rally in Gainesville Was Storm That Fizzled, Palm Beach Post (Oct. 21, 2017), https://www.palmbeachpost.com/news/white-nationalistrally-gainesville-was-storm-that-fizzled/GDqg4AM6NX8dGsHZvr8iIM/.

5 See Stephanie Saul, Dozens of Middlebury Students Are Disciplined for Charles Murray Protest, N.Y. Times (May 24, 2017), www.nytimes.com/2017/05/24/us/middlebury-collegecharles. Whether Charles Murray, the W.H. Brady Scholar at the American Enterprise Institute and coauthor of The Bell Curve, written with Richard J. Herrnstein, is accurately or fairly grouped with the white supremacist protesters in Charlottesville, Berkeley, Boston, and Gainesville is deeply contested.

6 Including, of course, the District of Columbia. An August 12, 2018, rally in Lafayette Park, organized by Jason Kessler, the organizer of the Charlottesville rally exactly a year earlier, featured a small number of protesters who were vastly outnumbered by the counterprotesters. See Joe Heim et al., Protest Dwarfs ‘Unite the Right’ Rally, Wash. Post, Aug. 13, 2018, at A1.

7 Because many of the recently prominent events have commenced, as in Charlottesville, with groups objecting to what they perceive to be excess government, rampant liberalism, and too little concern for white people, contemporary discourse often describes these groups as “protesters” and those challenging them as “counterprotestors.” I will adhere to this usage, even while recognizing that some speakers who attract audience hostility are not protesting anything, thus making the designation “counterprotestors” somewhat of a misnomer.

8 The label “hostile audience” dates in the caselaw to Chief Justice Vinson’s majority opinion in Feiner v. New York, 340 U.S. 315, 320 (1951), but appeared earlier in academic commentary. See Note, Freedom of Speech and Assembly: The Problem of the Hostile Audience, 49 Colum. L. Rev. 1118, 1118 (1949).

9 See, e.g., Gregory v. City of Chicago, 394 U.S. 111 (1969) (invalidating restrictions on civil rights demonstrators); Beckerman v. City of Tupelo, 664 F.2d 502 (5th Cir. Unit A Dec. 1981) (same); Wolin v. Port of N.Y. Auth., 392 F.2d 83 (2d Cir. 1968) (protecting antiwar protestors); Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago, 419 F. Supp. 667 (N.D. Ill. 1976) (protecting civil rights parade).

10 See, e.g., Bible Believers v. Wayne County, 805 F.3d 228, 248 (6th Cir. 2015); Vincent Blasi, Learned Hand and the Self-Government Theory of the First Amendment: Masses Publishing Co. v. Patten, 61 U. Colo. L. Rev. 1, 31–33 (1990); Dan T. Coenen, Freedom of Speech and the Criminal Law, 97 B.U. L. Rev. 1533, 1555–57 (2017); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189, 237–39 (1983).

11 For some of the academic articles inspired by Charlottesville and other recent events, see Timothy E.D. Horley, Essay, Rethinking the Heckler’s Veto After Charlottesville, 104 Va. L. Rev. Online 8 (2018); JD Hsin, Defending the Public’s Forum: Theory and Doctrine in the Problem of Provocative Speech, 69 Hastings L.J. 1099 (2018); Brett G. Johnson, The Heckler’s Veto: Using First Amendment Theory and Jurisprudence to Understand Current Audience Reactions Against Controversial Speech, 21 Comm. L. & Pol’y 175 (2016); R. George Wright, The Heckler’s Veto Today, 68 Case W. Res. L. Rev. 159 (2017).