After Dallas, Law Expert on Right to Demonstrate, Open-Carry Guns
On Friday morning, the country, still reeling from the deaths of Alton Sterling and Philando Castile, woke up to a lot of unanswered questions. Why, after a night of peaceful demonstrations in one of the nation’s largest, most diverse cities — so peaceful that protesters offered to buy coffee for officers, and police reminded the protesters to stay hydrated — did a sniper unexpectedly open fire, killing five officers and injuring seven others, along with two civilians? Aside from the horror for the people gathered in Dallas, what could it mean for other protests gearing up across America? Could it be used to justify a degrading of our First Amendment rights? What stops the government from canceling subsequent protests if it feels its own officers are at risk?
Rolling Stone recently spoke with Geoffrey Stone, a professor at the University of Chicago Law School and a constitutional expert, to ask if our fears were founded.
Could an attack like this, targeting the police who were there to protect protesters, mean no more protests for a while?
No, no, no. There’s a very strong principle in First Amendment jurisprudence, called the heckler’s veto, which is critical. A classic example would be Skokie [in Illinois, in 1977]. The Nazis wanted to march in Skokie, and there were people who said, “We’re gonna have to kill them.” What the courts have figured out, and have adhered to in a very strong way, is that we cannot allow people who threaten violence to effectively conscript the government to prohibit the speech because they’re afraid of the violence. Because if you did that, then you just encourage people to engage in violence, or threaten violence, even though they’re never going to actually do it.
So what the court has said, basically, is that you cannot have a heckler’s veto, and short of emergency situations — clear and present danger of immediate harm — the responsibility of the police and the government is to protect the protesters and to protect the right to free speech, not to shut down speech because of the purported danger. The reason for that is otherwise you’ll never have any free speech.
That’s a key development in First Amendment law. The Supreme Court first addressed this question explicitly in 1951, in a case called Feiner v. New York, in which the Court upheld the conviction of a speaker because his speech led to members of the audience threatening violence. The police officers told him to stop speaking, he refused and they arrested him. He was prosecuted for refusing to obey the police order, and the Supreme Court upheld it. But that’s now 65 years ago, that’s the last time that’s happened.
In the years since then, particularly during the Civil Rights movement, this really came to a head. When you had Civil Rights demonstrations in the South, you routinely had whites who were basically threatening to shoot the protesters, and to attack the protesters. And the local police — who didn’t want the protests in the first place — told the protesters, “Knock it off, or you go to jail.” This was in Alabama and Mississippi and so on. And so the Supreme Court said, “You can’t do that. Your responsibility is absolutely to protect the speakers, and that means putting in a lot more police protection.” You could only stop the speech as an absolute last resort. So the fact that this happened may mean that the government may now have to put more police protection up in various situations. But part of the risks you take in a free society is that somebody’s going to shoot you. Not because of the Second Amendment, but because otherwise you just allow people to make empty threats, and therefore silence people. So that’s a key way of understanding this problem: We do not allow the threat of violence to shut down speech, except in the most dire and immediate circumstances. So if you have somebody firing a gun, you can tell protesters to disperse. At that moment, you can do that. But just because you think it might possibly happen, you can’t prohibit speech.