What is a “Heckler’s Veto”?

Heckler’s Veto is a term you will encounter in cases involving free speech that someone finds offensive.  It’s coming up a lot these days when colleges, for example, refuse to allow certain controversial speakers to speak.  The idea is that a heckler should not be able to shut down a speaker, just because the speaker is saying something the heckler finds offensive.

This can even come up in the public comment section of a school board meeting.  Suppose that Mr. Jones rises to the podium and makes some remarks that people in the audience find offensive. Booing and yelling begins. If Mr. Jones is staying within the boundaries of the First Amendment (which are pretty wide), the district should try to quiet the crowd, rather than shutting down Mr. Jones.  If we shut down Mr. Jones, we are allowing the heckler to veto his remarks.  This infringes on Mr. Jones’s free speech rights.

But a recent case from California flat out says that the “heckler’s veto” doctrine does not apply to student speech. The court cited a 9th Circuit case:

In the school context…the cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances.

We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.”  But the language of Tinker and the school setting guides us here.  Where speech “for any reason…materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech.  Dariano v. Morgan Hill USD 767 F.3d 764, 778 (9th Cir. 2014).

This all came up in the case involving the threatening, racist and incredibly ugly posts on a student’s Instagram account that we wrote about here yesterday.  Bottom line: student discipline over the off campus cyberbullying was proper.

The case is Shen v. Albany USD, decided by the federal court for the Northern District of California on November 29, 2017.  We found it at 2017 WL 5890089.