The melee at the Donald Trump rally Friday night in Chicago raises a fundamental First Amendment question: When a speaker, such as the Republican presidential candidate, is confronting angry protesters, whose speech rights come first: the speaker’s or the protesters’?
The U.S. Supreme Court’s answer to this question has evolved over the years. At one time, the court was ambivalent, sometimes favoring the speaker and sometimes willing to shut down the speaker to avoid public disorder.
Today, however, the norm is clear: Protesters who disrupt a rally can be removed by police so that they don’t exercise what’s called a heckler’s veto over the rally’s organizer. It shouldn’t matter whether it’s the Ku Klux Klan interrupting a civil-rights speaker or civil-rights protesters interrupting a racist diatribe. The law considers the speaker’s rights as paramount.
The first important Supreme Court case on the issue involved a rally that took place in 1946, by coincidence in Chicago. Arthur Terminiello, sometimes called the Father Charles Coughlin of the South, was a Boston-born Catholic priest who combined anti-Communism with anti-Semitism. He rented an auditorium in Albany Park, then a Jewish neighborhood, and announced a speech titled “Christ or Chaos — Christian Nationalism or World Communism — Which?”
A crowd of angry protesters met Terminiello and tried to block access to the auditorium. When he began speaking, he referred to the people outside as “slimy scum.” According to some reports, shouts of “Kill the Jews” rang out inside the building. The crowd outside threw rocks, bricks and ice picks, breaking windows in the auditorium. A group of boys rushed at the police. There were many injuries, and 19 protesters were arrested at the event. Later that night, the Chicago police arrested Terminiello for breach of the peace.
The Supreme Court reversed his conviction in a 1949 decision by Justice William O. Douglas. The essence of the holding was that the First Amendment doesn’t allow a conviction for breach of the peace when the speaker offends a crowd of protesters. “Speech is often provocative and challenging,” Douglas wrote. “It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”
Justice Robert Jackson, recently returned from a stint as chief prosecutor at the Nuremberg war-crimes trials, wrote a frustrated dissent in which he argued that the police must be able to arrest a speaker to achieve control over potential violence. He explained that Hitler had announced before his rise to power that the Nazis would advance by “the conquest of the streets.” Hitler’s idea was “laughed at,” Jackson wrote, but his “battle for the streets became a tragic reality” and helped the Nazis to power.
Jackson’s perspective prevailed a couple of years later in a case called Feiner v. New York, in which a white student agitator was arrested for breach of the peace after provoking a mixed-race crowd in Syracuse by urging blacks to demand their rights by force of arms. The justices sustained the conviction over a ringing dissent by Justice Hugo Black. Black, deeply committed to the freedom of speech, wrote that “if, in the name of preserving order, [police] ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him.”
In 1969, the pendulum swung back, and Black’s dissent is now treated as the rule. The police have a constitutional duty to protect that speech right against protesters who would interrupt a speaker.
After the protests at the 1968 Democratic National Convention in Chicago (again!), the Supreme Court struck down the convictions of comedian Dick Gregory and other peaceful protesters. Black noted in his concurrence that the police had arrested Gregory and his colleagues only when hecklers “were dangerously close to rioting and that the demonstrators and others were likely to be engulfed in that riot.” His point was that the police should’ve made all reasonable efforts to protect the peaceful speakers.
The best reading of the law today is that ordinarily, a speaker cannot be silenced to avoid counterprotests. Applied to Friday’s Trump rally or future such rallies, that means the police must remove protesters who interrupt. Otherwise those protesters would be exercising a heckler’s veto over Trump’s speech.
To be sure, silent, peaceful protest that doesn’t interrupt the speaker or the rally is a different, more complicated legal issue. Under Supreme Court precedent, the organizers of a parade have the absolute right to choose who gets to speak as part of their event. A rally is similar, and so it may be that the organizers would have the right to seek the removal of even silent, peaceful protesters if their presence were judged to detract from the event’s meaning. But that removal couldn’t be accomplished by violence or intimidation, which would itself be unlawful. And the circumstances might be different in a public park than they would be in a private venue.
The bottom line is that speaker’s rights narrowly prevail today — even one whose speech is as distasteful as Donald Trump’s.