In First Amendment theory, it is fundamental that a government cannot regulate speech based on its content, including on the fact that some people may be hostile to it. In other words, the City of Charlottesville could not have forbidden the KKK to come on July 8 because 1,000 people were going to come out to oppose them. If the City had learned that some of the counter-protesters were planning to get violent — to attack the KKK members, for example — the City could not have used that as the basis to deny the KKK the right to demonstrate in Justice Park. This principle is referred to as the “heckler’s veto” doctrine — we don’t allow a hostile crowd to disrupt the demonstration, and it is up to the City Police Department to preserve order and to make it possible for the KKK demonstration to go forward.
In Forsyth County v. Nationalist Movement, the ordinance that was being challenged had been enacted after two marches in 1987. On January 17, 1987, 90 civil rights marchers had tried to march through the center of the county seat in the most segregated, “whitest” county in Georgia. 400 counter-protesters threw rocks and beer bottles, and the police presence was not strong enough to protect the civil rights marchers. The march had to be canceled. A week later, 20,000 civil rights marchers were greeted by 1,000 counter-demonstrators, but this time they were being protected by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock throwing and 60 counterdemonstrators were arrested, the parade was not interrupted. The demonstration cost over $ 670,000 in police protection.
The County responded by passing an ordinance that could be used to justify charging different amounts to different groups for parade permits, based on the expected response to the parade. The Supreme Court struck down that ordinance, because it had the possibility of being applied such that it would cost more to express unpopular viewpoints.
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. … (the fact that city is financially burdened when listeners throw leaflets on the street does not justify restriction on distribution of leaflets). Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-135 (1992) (citations omitted).
The Ninth Circuit was asked to invalidate Santa Monica’s new ordinance that prohibited certain kinds of Christmas displays; the prohibition was supposedly based in part on the fact that some non-Christians were angry that the displays would amount to an endorsement of religion. The thrust of the Ninth Circuit’s opinion was directed toward freedom of religion issues, but the Court also discussed:
… the “heckler’s veto” doctrine, which holds that a regulation of speech is to be deemed content based when “listeners react to speech based on its content and the government then ratifies that reaction by restricting the speech in response to listeners’ objections.” Ctr. for Bio-ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 789 (9th Cir. 2008) (emphasis omitted). The doctrine prohibits the government from pointing to the “reaction of listeners” to speech as a “secondary effect” justifying that speech’s regulation; in other words, the government may not regulate speech on the grounds that it will cause its hearers anger or discomfort. Id. (citing Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988)). If speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly; it may not avoid doing so by suppressing the speech.
Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1292-1293 (9th Cir. 2015).
As a result of the rule that the City’s response to the Klan or to the alt-right cannot be allowed to become a heckler’s veto:
- Charlottesville could not ban the KKK on July 8 based on the fact that most Charlottesville natives disagree with the KKK, and would be very angry about the rally. Likewise, Charlottesville cannot ban the Unite-the-Right rally based on a concern that their viewpoint would get many people mad.
- Charlottesville Police Department are required to provide whatever security is necessary to protect public order, including perhaps 200 officers and fencing on July 8, and perhaps more on August 12.
- Charlottesville cannot charge the KKK for the cost of protecting them on July 8, and we cannot charge Jason Kessler for the expense of providing the security for August 12 either.
- Any regulations that the City insists on on August 12 cannot be so expensive for compliance as to have the result of penalizing speech that is unpopular, and any regulation must be tied to a particular problem that has nothing to do, directly or indirectly, with the content of the speech. A requirement for a Port-a-Potty, for example, might be a function of how many people show up, and would not be expected to have anything to do with whether the speakers are liberals or conservatives. (Stop that joking. You in the back — stop.)
There is one disturbing complaint that has been expressed frequently in the last two weeks — the complaint that the City showed its “true colors” as a racist institution by protecting the Klan members, and that when the Police Department will show up as expected on August 12, it will be further proof that the Charlottesville city government, and the Police Department in particular, are “hand in hand” with the Klan, or with the alt-right. In fact, the City Police Department is required to preserve order to allow the demonstration to go forward. This is not a matter of choice, but of constitutional law.
If you want to complain about the Police Department, or about the City government, it shouldn’t be based on their adherence to Constitutional principles. And remember, most of the key free speech/free assembly cases grow out of liberal demonstrations, not out of conservative demonstrations.