Shut Up And Stop Heckle Vetoing Me, Law School Prof Yells At Clouds

Botching the Constitution for fun and profit!

(photo via Getty)

Jonathan Turley is a constitutional law professor at George Washington University Law School, which means you’d like to think he’s familiar with the long line of precedent about the “heckler’s veto.” In a nutshell, this is the situation where the government — usually in the form of the local police force — shuts down a speaker either preemptively or in the midst of an event based on the claim that the protests of that speaker create a public safety concern justifying the suppression of that speech. The important distinction is that the protest is not the constitutional problem, but the government using the existence of a protest to silence a speaker.

But recognizing this fairly basic element of First Amendment law doesn’t get you on cable news because those folks want to know just how much you hate all those dirty hippie social justice warriors, so Turley decided to use his own feces to paint the walls of the internet with vapid nonsense about the real problem of the heckler’s veto being the existence of protests in the first place.

The latest chilling poll was released by 2021 College Free Speech Rankings after questioning a huge body of 37,000 students at 159 top-ranked U.S. colleges and universities. It found that sixty-six percent of college students think shouting down a speaker to stop them from speaking is a legitimate form of free speech.

More chilling is that 66 percent of college and university students have a better handle on First Amendment law than a constitutional law professor at a well-regarded law school. Students — as they are not, in fact, the government — absolutely have a free speech right to protest anyone they want and shouting them down is entirely within that right. The speaker is exercising free speech rights… the students are exercising free speech rights. This really shouldn’t be hard to grasp: it’s all free speech. Just as it’s free speech for Turley to continue writing atrociously bad legal takes on the internet.

That’s not to say there aren’t thorny issues with the heckler’s veto cropping up these days. A couple years ago, Dean Vik Amar of the University of Illinois College of Law wrote a piece about the challenges administrators face trying to balance legitimate security concerns with the risk of preemptively chilling speech. What if a public university jacks up the fees required for speaker permits — ostensibly to cover “public safety” — to prohibitive levels? Should a school exercise more control over student group speaker invitations to avoid getting dragged unwillingly into a financially draining security debacle? Doesn’t that have a negative impact on student speech too? All very valid concerns, which place them in sharp contrast with, say, this:

Faculty and editors are now actively supporting modern versions of book-burning with blacklists and bans for those with opposing political views. Others are supporting actual book burning. Columbia Journalism School Dean Steve Coll has denounced the “weaponization” of free speech, which appears to be the use of free speech by those on the right. So the dean of one of the premier journalism schools now supports censorship.

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Holy faulty syllogism, Batman.

There’s only one aspect of this claptrap that has any significance, which is the finding from the poll that 23 percent of respondents thought violence was an acceptable response to disagreeing with speech. That is worrying!

Given the folks behind the poll, I have some concerns about how they got to this result, but even taken at face value, the constitutional problem with this result is not “23 percent of respondents talk tougher than they’d ever be in real life,” but that future school administrations and local police forces will use this figure to shut down events on the fear that someone might be violent. This distinction seems lost on Turley, but it’s critical because that’s where First Amendment mischief can begin and why it’s even more important to recognize that peaceful, if angry, protests are protected speech. Because people embrace violence only when they think other avenues of valid protest are shut down. In short, if you don’t want a heckler’s veto, you’d better make sure students know that they can shout people down peacefully.

This is not Turley’s conclusion because he’s not trying to get at the heart of the pressing legal issue, he’s just pleading for attention and acceptance from the MAGA folks who want to stand in the schoolhouse door over their right to tell jokes about minorities without anyone telling them they’re an asshole. And it turns out there are a lot of people willing to milk that grievance to stay in the limelight.

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What? If the social justice warriors think their worldview is widespread, it kind of begs the question what the “war” is about. Of course they don’t think the whole country agrees with them, that’s why they’re out there loudly trying to change people’s minds. If there are any “liberals” who fail to grasp the popularity of their ideas, it’s not the social justice warriors but the comfortable investment banker libs who reacted with horror when they realized in 2016 that Wisconsin, Michigan, and Pennsylvania hadn’t fully bought into the idea that the Democratic Party achieved perfection when it agreed to keep high-income tax rates low. A dark day in the country club that was!

However, if this “popularity delusion” really is one’s deeply felt worry for the country, then just let some of these speakers go to campus so the protesters realize how much work is left to be done. But that’s not what these people are really worried about.

William O. Douglas wrote in Terminiello v. Chicago — a case much closer to a heckler’s veto — that speech achieves “its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Turley argues that free speech achieves its high purpose when students are docile bullshit sponges for whatever crank comes along.

And the fact that there are people who agree with that conclusion is what’s really worrying.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.