THE HECKLER'S VETO
February 27, 2014
The 9th Circuit today announced a decision that may be constitutionally correct but, at the same time, terribly wrong. A public high school in California banned students from wearing American flag T-shirts on Cinco de Mayo on the grounds that the wearing of the T-shirts would incite disruptive behavior on the campus. There had been such behavior between Mexican and white students and it was reasonable to assume more of the same. This type of situation is common: a heckler or hecklers creates or threatens to create a disruption if some person or group is permitted to speak or demonstrate.
Those in charge often give in to the "hecklers" to avoid riots, violence or whatever is threatened. It is clear that this strategy works and it is also clear that it is generally a violation of the 1st Amendment rights of the speaker or group that has been shut down. The decision was based on a Supreme Court case which permitted authorities to preserve the peace and to proscribe one's constitutional rights. So, in the case decided, a bunch of Mexican students threaten riot/fights/disruption if non-Mexicans wear American flag T-shirts. Let's change the facts though and see what result you would anticipate. Let's say that Jesse Jackson was going to speak against amnesty for illegal aliens who work for low wages thus competing with black employment. Enraged illegals threaten to create a disturbance outside and inside the hall where Jackson is to speak. Do you think they would be permitted to shut Jackson off? Or would the local constabulary be out in force to stop any rioters in their tracks? Or is that too rhetorical a question? Where was the constabulary on that Cinco de Mayo?