Rethinking the Heckler's Veto After Charlottesville

Abstract

The violent Charlottesville protests of August 12, 2017, raise one of the more vexing questions of First Amendment law: at what point does a given expression’s tendency to provoke a violent response in listeners justify government intervention against the speaker? Current doctrine provides no clear answer, and even suggests that such intervention may never be justified. This Essay argues that in some cases it is justified, and proposes a modified Brandenburg v. Ohio incitement standard to define when that is. Setting such a standard would remedy the existing asymmetry between the law’s treatment of speech that incites violence and speech that provokes it. It would protect speakers’ rights while providing a cognizable pre-violence point at which authorities could intervene without fear of violating the First Amendment.

Keywords: first amendment, freedom of speech, heckler's veto, hostile audience, Charlottesville