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Students Sue and Win Over Heckler's Veto at U Wash
Law Prof Urges Students to "Sue The Bastards" on Behalf of Campus Free Speech
Many universities has simply refused to permit controversial people from speaking on campus, despite their legal obligations under the First Amendment, claiming that some students or outsiders will cause a disturbance.
This ploy is so well known that it has been given the name "heckler's veto," notes Banzhaf, and courts have frequently shot it down as a clear violation of free speech.
Just as those opposed to a speech cannot lawfully stop it by engaging in illegal conduct - everything from shouting it down to engaging in rioting - schools may not use the threat of wrongful conduct by one group as an excuse to prevent speech by a group with opposing views.
But the First Amendment does generally permit colleges to impose reasonable and limited restrictions on speech provided that they are not based on the content. Such limits - often called time, place, and manner restrictions - can be used to prevent too much noise, overcrowding of facilities, etc. - but they must be neutral and not impose more burdens on those voicing views which are controversial. Otherwise, they would unconstitutionally chill unpopular views.
Knowing that they could not ban controversial Joey Gibson from speaking just because many are likely to object, Washington tried to do an end run around the First Amendment, says Banzhaf.
Instead of banning the speaker, they simply required the student group sponsoring him to pay a huge "security fee" based upon so-called objective criteria: e.g. an analysis of violence and threats to public safety by the invited speaker, attendees at previous events or the sponsoring group, etc. Thus, the university claimed, the restriction was not based directly on a speaker's or group's ideology or political positions.
So the students acted in accordance with a motto Banzhaf made famous - "Sue The Bastards" - and took their university to court with the aid of the Freedom X group. A federal judge agreed that this disguised heckler's veto was an illegal violation of the First Amendment since it would have a chilling effect on controversial groups and viewpoints, while having no such effect on completely inoffensive speech.
But, notes Banzhaf, it is speech which is unpopular, and therefore likely to offend some campus groups and/or the college administration, which needs protection from the university, whereas bland unobjectionable speech usually needs none. Speakers in favor of apple pie and motherhood have little to fear from the administration or unlawful agitators, whereas those who advocate that American women should stay home to bake apple pies for their husbands obviously need such protection, says Banzhaf.
Professor Banzhaf urges more student groups to stand up for their First Amendment rights by suing their university.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418