Last
week’s protests and mini-riot that prompted Donald Trump to cancel a
rally in Chicago were the latest example of a concerted effort to
disrupt candidates’ campaigns.
Professor Eugene Volokh wrote...
Many states outlaw “disturbing lawful assemblies,” which would include
campaign rallies, whether on public property or private.
Attempts to shut down an event, for instance by shouting down a
speaker, blowing whistles so that the speaker can’t be heard, rushing
onto the stage and the like would thus be illegal. This is important
both because the police can then arrest the disrupters, and because
security guards and ordinary rally attendees could then legally use
reasonable, non-deadly force to stop the disruption (more on that
later).
As Trump edges closer to locking up the Republican nomination, such
agitation will likely grow more frequent and more extreme. The
questions, then, are what limits hecklers from interrupting campaign
events, and does enforcing those limitations work.
Legal
Restraints on Hecklers
Two preliminary matters, though.
First, although
there is
some First Amendment protection for “speech” in the form of physical
action, it is inapplicable for this conversation. Storming the
stage is not protected speech; it is likely assault. If a
protester crosses the line and lays hands on a candidate or somebody
attending an event, that would be battery, at a minimum.
Second, the First
Amendment does not grant an absolute right to speak or protest.
There are a variety of limitations depending on the context. It
is ironclad law that reasonable “time, place and manner” limitations on
speech are permitted under the Constitution.
In
my personal view, the time, place and manner exception is beginning to
eat up the free speech rule, in part because I believe there is a
legitimate and necessary place for spontaneous and/or unusual forms of
protest that do not and cannot comply with time/place/manner
bureaucracy. In any event, Constitutional limitations on speech
exist.
[....]
For the campaign, having the police clear protesters signals weakness
and can rally support behind the protesters. The rally was doomed
regardless, and escaping with minimal consequences was a positive
result.
The problem, of course, is that Trump didn’t get to speak, and the
audience didn’t get to hear him. This is known as the “Heckler’s
Veto.” Protesters are so unruly and the situation so out of
control that event organizers or police deem it too dangerous to
proceed and shut it down. The protesters thereby obtain a de
facto veto over speech they dislike.
This is a practical rule, not a legal rule. In fact, the law
require police to provide speakers at least some amount of protection
against a violent crowd before the speaker can legally be silenced for
his or her own benefit.
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