Defending the Public’s Forum: Theory and Doctrine in the Problem of Provocative Speech
Volume 69, Issue 4, 1099-1146
For more than half a century the heckler’s veto has been a source of provocation. On the one hand, there now appears to be widespread consensus among courts and commentators that allowing police to shut down a provocative speaker in a public space over threats from hostile listeners is simply beyond the constitutional pale. Taking that constitutional intuition as their guide, the lower courts have generally approached the problem through a speaker-focused model, in which the government is seen siding with the majority’s mob over the minority speaker, in violation of the principle requiring neutrality among speakers and views. But what happens when the usual roles reversewhen the provocative speaker is not representative of a minority opinion but is arguably representative of a larger majority? Relying on the important recent decision from the Sixth Circuit in Bible Believers v. Wayne County, this Article argues that this reversal of roles shows us not just the limits of the speaker-focused model in solving the heckler’s veto problem, but also how it can and should be broadened to address the increasingly complex protests that have come to dominate our constitutional focus today. We should therefore take Bible Believers as the occasion to reconsider the familiar speaker-focused approach to the heckler’s veto, by reframing it around the different problem that that case represents: not as the familiar drama of the soapbox orator faced with a hostile audience but as an example of a public forum faced with hostile takeover. In these increasingly common cases, the problem of the heckler’s veto should accordingly take on a new conceptual and doctrinal form: as an attack on a public forum that the police must do everything in their power to prevent by defending the forum first.