# data[].attributes.attachment_link.readable_text
In my own newly famous city of Charlottesville, Virginia, as well as in Berkeley, Boston, Middlebury, and an increasing number of other locations, individuals and groups engaging in constitutionally protected acts of speaking, parading, protesting, rallying, and demonstrating have become targets for often-large groups of often-disruptive counter-protesters. 1 1. Because many prominent recent events have involved groups protesting against what they perceive to be excess government, rampant liberalism, and too little concern for white people, contemporary discourse describes those challenging these groups as "counter-protesters." I will adhere to this usage, even while recognizing that because some speakers who attract audience hostility are not protesting anything, calling those who protest against them "counter-protesters" is often a misnomer. And although most of the contemporary events have involved neo-Nazi, Ku Klux Klan, and other white supremacist speakers who are met with opposition from audiences on the political left, it has not always been so. Indeed, what we now identify as the problem of the hostile audience 2 has often involved more sympathetic speakers confronted by less sympathetic crowds. 3 Yet though the issue is hardly of recent vintage, contemporary events have highlighted the importance of reviewing the relevant constitutional doctrine and thinking again and anew about how, if at all, government and law should respond to disruptive audiences.

The value of returning to the question of the hostile audience is heightened by the fact that existing legal doctrine on the question is, at best, murky. It is now widely believed that restricting the speaker on account of the actual or predicted hostile and potentially violent reaction of the audience gets our First Amendment priorities backwards. 4 But it is hardly clear that this belief was ever correct, and even if it were, it is even less clear that it is sufficient to deal with the constitutional and policy complexities of many of the contemporary encounters. The point of revisiting the problem of the hostile audience is therefore not so much to urge a change in existing understandings and legal doctrine as it is to emphasize how many open questions still remain, and how current events might bear on possible answers to these questions.

The Forgotten Denouement of a Remembered Event

As has been extensively documented, 5 in 1977 a group called the National Socialist Party of America, self-described as Nazis and led by a man named Frank Collin, proposed to conduct a march in Skokie, Illinois. The neo-Nazi marchers chose Skokie as their venue because of its substantial Jewish population, 6 6. A majority of the town's population in 1977 was Jewish, although prior to World War II Skokie was heavily populated by Christians of German ancestry. a population that at the time contained an especially large number of Holocaust survivors. And in order to inflict the maximum amount of mental distress on Skokie's residents, the marchers were planning to carry Nazi flags, display the Swastika, and wear Nazi uniforms, jackboots and all.

Despite the efforts of the Village of Skokie7. In the ensuing litigation, Skokie stressed its official designation as a "village," presumably as a way of suggesting a small and close community, even though, with a population of over 60,000 and adjacent to Chicago, it is more accurately described as a large suburb. 8. 9. 10. 11. That conclusion follows from some combination of then-entrenched Supreme Court decisions in 7 See Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America 26 (1986). to prohibit the event, the Nazis' First Amendment right to hold the march was upheld by both the Supreme Court of Illinois Village of Skokie v. Nat'l Socialist Party of Am., 373 N.E.2d 21 (Ill. 1978). . and the United States Court of Appeals for the Seventh Circuit. 8 Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). . And although the United States Supreme Court's refusal to give the case full plenary consideration 9 Smith v. Collin, 439 U.S. 916 (1978) (denying certiorari); Nat'l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977) (per curiam) (staying injunction against march). was technically not a decision on the merits of the controversy, the events were so broadly publicized that the Court's refusal to hear the case with full briefing and argument was widely understood by the public, and presumably by the members of the Court as well, as firmly announcing that the Nazis' right to march was by then clearly established in constitutional doctrine. Brandenburg v. Ohio, 395 U.S. 444 (1969) (protecting Ku Klux Klan speaker from prosecution for advocating racial violence); Cohen v. California, 403 U.S. 15 (1971) (disallowing offense to unwilling viewers as a justification for restriction); Hague v. C.I.O., 307 U.S. 496 (1939) (recognizing the streets as public forums); and Police Department of Chicago v. Mosley, 408 U.S. 92 (1972) (announcing the presumption against content discrimination). 10 11

Although the Nazis prevailed in several courts and thus won their right to march when, where, and how they had proposed, what is often forgotten is that the march never happened. The Nazis wrapped themselves in their legal victory but at no time actually exercised the right that they had won in court, at least in Skokie itself. They did hold similar but small events in Chicago on June 24 and July 9, 1978, both without benefit of permit, but the permit they were eventually granted to march in Skokie on June 25 went unused.

We remain unsure why. Perhaps the Nazis disbelieved Skokie's representation that the town would make "every effort to protect the demonstrators . . . from responsive violence."12. 12 Collin, 578 F.2d at 1203. Perhaps they viewed their legal victory as more important than the march itself. Or perhaps the publicity surrounding the event made it seem more desirable to the Nazis to march in front of what they hoped would be a larger audience in Chicago. But whatever the reason, the Nazis never marched in Skokie.

Because the Skokie march never happened, we can only speculate about the answers to questions that may have arisen had it taken place. Some of those questions relate to law enforcement. Assuming that there would have been far more objectors than Nazis, and that at least some of those objectors would have been inclined to physically confront or assault the marchers, would the Skokie police department have attempted to prevent the physical encounters, and if so, how, with what size force, and with what degree of aggressiveness? And if Skokie's police department, even assuming its best efforts, was not up to the task because of the sheer size of the hostile audience, would the Illinois State Police have stepped in? The Cook County Sheriff's Office? The Illinois National Guard? Would Illinois state authorities have requested federal assistance to protect the exercise of a federal constitutional right? Even absent a request from the state, would federal forces have been deployed to secure compliance with a constitutional right and a judicial order, as when President Dwight Eisenhower sent troops to Little Rock, Arkansas, in 1957?13. Eisenhower famously ordered federal soldiers to Little Rock to enforce U.S. Supreme Court and lower federal court desegregation rulings. 13 See Cooper v. Aaron, 358 U.S. 1 (1958); Tony Freyer, The Little Rock Crisis: A Constitutional Interpretation (1984). Conceptually, the situations may not be as different as the moral gulf between the Nazis and the fighters for desegregation in Little Rock might initially suggest. The Nazis could have been described as a group seeking to exercise a federal constitutional right that had been explicitly recognized in their case with a federal court injunction against various state officials, just as the basis for Eisenhower's directive was the need to protect a federal judicial order against state officials set on resisting rather than obeying it. We do not know what, if anything, President Jimmy Carter or other federal officials would have done in Skokie had state and local officials either resisted the court's order, or, more likely, obeyed it only grudgingly and with little expenditure of human and financial resources. But the parallels are intriguing. These are factual and historical questions rather than normative or doctrinal ones, but they suggest a number of issues that are indeed normative or doctrinal, or both, about which the current doctrine provides few answers.

The overarching legal question that would have been presented had the Nazis marched in Skokie, and the question presented by so many of the contemporary events, is the question of the hostile audience. Assuming the existence of a group or of individuals otherwise constitutionally entitled to say what they want to say where they want to say it, how does the existence of an actually or potentially hostile audience change, if at all, the nature of the speakers' rights or change, if at all, the obligation, if any, of official responsibility to protect the speakers and their speech?

The Doctrinal Foundation-Holes and All

One motivation for this paper, even apart from the way in which current events have highlighted the problem of the hostile audience, is that there is less settled law on the questions raised at the close of the previous section than we might have supposed. But what law there is dates to 1940 and the case of 15. 16. 17. Cantwell v. Connecticut. 14 14. 310 U.S. 296 (1940). Jesse Cantwell, like so many of the individuals who helped forge the modern First Amendment tradition, was a Jehovah's Witness. 15 See, e.g., Niemotko v. Maryland, 340 U.S. 268 (1951) (invalidating standardless requirement to obtain permission before using public park for demonstration); Marsh v. Alabama, 326 U.S. 501 (1946) (applying First Amendment to company-owned town); State v. Cantwell, 8 A.2d 533 (Conn. 1939). but Jesse's was upheld. On appeal to the U.S. Supreme Court, however, Jesse's conviction was found to be a violation of the First Amendment, with Justice Owen Roberts writing the unanimous opinion. The Court held out the possibility that a conviction might be sustained were a speaker to use profane words, indecent language, epithets, or personal abuse directed specifically at particular listeners or were a statute to have been aimed precisely at conduct such as Cantwell's and to have incorporated a legislative finding that such conduct constituted a clear and present danger. Schneider v. Irvington, 308 U.S. 147 (1939) (invalidating blanket prohibition on door-to-door religious and political canvassing). He, along with his brother and father, travelled to a street in New Haven, where he attempted to sell books and pamphlets in a neighborhood that was approximately 90 percent Catholic, in the process playing a phonograph record vehemently attacking the Catholic Church. The content of the record angered several onlookers, some of whom testified that they "felt like hitting" Cantwell if he did not leave immediately. In fact he did leave when confronted, but Cantwell, his brother, and his father were nevertheless charged with "breach of the peace" under Connecticut law. The convictions of the brother and father were reversed by the Supreme Court of Connecticut, Cantwell, 310 U.S. at 309. But because Cantwell was prosecuted only under the general common law notion of breach of the peace, and because there had been no profane or indecent direct personal abuse, the Court concluded that Cantwell's conviction could not stand. 16 17

Even though the Cantwell Court suggested that the reactions of listeners could justify punishing a speaker under certain circumstances, the opinion still says next to nothing about what a legislature would need to do in order to craft a constitutionally permissible statute. And because the audience in Cantwell consisted of only a few people to whom Cantwell had generally addressed his words and his recording, the decision in its entirety is at best a precursor to the hostile audience problem and appears to be more of an angered listener case than a hostile audience one. 18 The first true hostile audience case was yet to come, and it arrived nine years after Cantwell in Terminiello v. Chicago, 19 19. 337 U.S. 1 (1949). a decision worthy of more extended discussion.

Arthur Terminiello, a suspended Catholic priest, was invited to Chicago from his Birmingham, Alabama, base to deliver a well-publicized and virulent anti-Communist and anti-Semitic speech, in which he referred to "atheistic, communistic . . . Zionistic Jews" as "slimy scum," accused former Secretary of the Treasury Henry Morgenthau of plotting to cut off the limbs of German babies, charged Franklin and Eleanor Roosevelt and the Supreme Court with being part of the same Jewish Communist conspiracy, and announced that the New Deal itself was among the prominent manifestations of this conspiracy. Terminiello's audience in a rented hall consisted of somewhere between 800 and 1,000 people, most of them sympathetic but some hostile. Outside there were gathered another 200 to 300 more people who had been turned away for reasons of space, an additional several hundred members of a picket line, and more than 1,000 other protesters, all of whom were being monitored by 70 police officers. The police presence turned out to be nowhere near sufficient to prevent the pushing, milling, fighting, and rioting that broke out both inside and outside the hall, and the disorder was marked by the throwing of stones, sticks, bricks, bottles, and other makeshift weapons. As a result of this tumult, Terminiello was arrested, tried, convicted for breach of the peace, and fined one hundred dollars.

On appeal to the Supreme Court, Justice William Douglas wrote for a 5-4 majority. Relying heavily on 21. 22. Stromberg v. California, 20 20. 283 U.S. 359 (1931). . the Court reversed Terminiello's conviction, largely because the ordinance under which Terminiello had been convicted made it an "offense merely to invite dispute or to bring about a condition of unrest." 21 Terminiello, 337 U.S. at 6. Chief Justice Fred Vinson and Justice Felix Frankfurter dissented, but it was Justice Robert Jackson's dissent, joined by Justice Harold Burton, that focused most closely both on what Terminiello had said and on the disorder that had ensued. On his reading of the events, Justice Jackson concluded that the existence of a "riot and . . . a speech that provoked a hostile mob and incited a friendly one" 22 Id. at 13 (Jackson, J., dissenting). justified Terminiello's conviction. Justice Jackson did not, however, draw much of a distinction between the hostile and the friendly mobs, and so did not distinguish Terminiello's responsibility for the actions of the supporters he incited from his responsibility for the reactions of the opponents he angered. And, thus, although the question of the hostile audience was clearly on the table in Terminiello, the case still produced little guidance about the extent to which a speaker might be responsible not for what he urged others to do but instead for what his words might prompt others to do to him and his supporters.

The Terminiello scenario was repeated, albeit on a smaller scale, several years later in Feiner v. New York, 23 23. 340 U.S. 315 (1951). noteworthy in part for giving rise to the first actual judicial use of the term hostile audience. 24 But again the facts made the conclusions to be drawn from the case less than crystal clear. Irving Feiner had given a speech in Syracuse criticizing President Harry Truman, the mayor of Syracuse, the American Legion, and others, but the chief import of his open-air address to a racially mixed crowd of 75 to 80 was "to arouse the Negro people against the whites." 25 Believing the crowd to be on the verge of erupting into a number of racially charged fights, the police first requested and then demanded that Feiner stop talking, but he refused to do so and was accordingly arrested for disorderly conduct. His conviction was affirmed by the New York Court of Appeals and then by the U.S. Supreme Court, the latter, in an opinion written by Chief Justice Vinson, observing that "[i]t is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace." 26 Justice Hugo Black dissented, as did Justice Douglas, joined by Justice Sherman Minton, all of them relying heavily on Cantwell and on their belief that the real problem was the presence of police who saw their job more as siding with the hostile portion of the audience than as protecting the speaker.

27. 28. The law on the power of the police to move or remove people is largely to the effect that the greater includes the lesser, and thus that if the police may lawfully arrest someone then they may lawfully remove them without arrest. Feiner is commonly taken to represent the extreme case of allowing the hostile audience to exercise the so-called heckler's veto, 27 See Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America 89 (Jamie Kalven ed., 1988). but a close reading of the opinion makes that conclusion not nearly so obvious. Was Feiner charged with provoking a hostile audience or with inciting a sympathetic one? Was his wrong in giving his speech or in disobeying the plausible orders of the police? Could he, as a lone speaker, have been physically removed rather than arrested? See Rachel Harmon, Lawful Orders and Police Use of Force(Sept. 29, 2017) (unpublished manuscript) (on file with author). But the question, which the doctrine neither answers nor even addresses, is whether the First Amendment might require attempted removal prior to arrest, a requirement that does not exist outside the First Amendment context. Should he have been? 28

Although 32. Feiner is hazy in just these ways, the decisions that mark Feiner's burial contain fewer uncertainties. In three different 1960s cases dealing with civil rights demonstrators confronted by unambiguously hostile audiences, the Supreme Court appears to have eviscerated Feiner of whatever authority it may have had. In Edwards v. South Carolina, 29 29. 372 U.S. 229 (1963). an 8-1 Supreme Court reversed the breach of the peace conviction of 187 Black civil rights demonstrators who were marching and singing in Columbia, South Carolina. The police, fearing impending violence by the hostile audience, threatened the demonstrators with arrest if they did not disperse, and the arrest, trial, and conviction of the demonstrators followed their refusal of the police demand. For Justice Potter Stewart, this case was "a far cry from the situation in Feiner" 30 and seemed to him to involve "no more than that the opinions which [the demonstrators] were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection." 31 Quoting Terminiello, Justice Stewart concluded that criminal convictions of the speakers would be permitted only if there was a "clear and present danger . . . that rises far above inconvenience, annoyance, or unrest." 32 Id. (quoting Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949)).

Facts similar to those in 35. 36. Edwards were presented in Cox v. Louisiana, 33 33. 379 U.S. 536 (1965). where again the leader of a civil rights demonstration, the Reverend Elton Cox, was arrested for, among other things, disturbing the peace in Baton Rouge, Louisiana. As a result of his arrest, Cox was sentenced to a cumulative one year and nine months in jail for leading a group of about 2,000 singing, cheering, and clapping demonstrators. In response to the city's claim that action was taken against the demonstration because "violence was about to erupt," 34 Justice Arthur Goldberg again distinguished Feiner, pointing out that no actual violence had ensued, that the presence of local and state police appeared sufficient to prevent any violence, and that "constitutional rights may not be denied simply because of hostility to their assertion or exercise." 35 Id. at 551 (quoting Watson v. City of Memphis, 373 U.S. 526, 535 (1963)). And thus by the time similar facts were once again presented in 1969 by a case involving a Chicago demonstration led by the comedian and civil rights activist Dick Gregory, 36 Gregory v. City of Chicago, 394 U.S. 111 (1969). Chief Justice Earl Warren was able to begin his majority opinion, an opinion that followed Edwards and Cox in all material respects, with the observation: "This is a simple case." 37

Although some might suspect that the results in 38. 39. The conclusion in the text is too quick. In fact, there are four possibilities. One is that a subsequent willingness to protect morally undesirable demonstrators even in the face of a hostile audience, as in Edwards, Cox, and Gregory were heavily influenced by the Warren Court's sympathy with the civil rights demonstrators and the causes they were espousing, 38 Cf. Harry Kalven, Jr., The Negro and the First Amendment (1965) (documenting the First Amendment decisions that arose in the context of 1960s civil rights issues). . that conclusion is belied Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992), is indeed evidence that the results in Edwards, Cox, and Gregory had little or nothing to do with sympathy for the demonstrators and their cause. Second is that a change in the membership of the Court (only Justices William Brennan and Byron White sat for both Gregory and Forsyth County) makes any generalization across the relevant time period impossible. Third is that stare decisis really does matter for some issues at some times on the Supreme Court, making Cox, Edwards, and Gregory causally influential of the Forsyth County outcome. And fourth is that the identity of the demonstrators genuinely made a difference, given that the ordinance under attack in Forsyth County was enacted not in response to the kind of white supremacist parades at issue in the case itself, but against the background of some number of recent Black civil rights demonstrations in overwhelmingly white and undeniably hostile Forsyth County. by subsequent developments, most directly the Supreme Court's 1992 decision in 39 Forsyth County, Georgia v. Nationalist Movement. 40 40. 505 U.S. 123 (1992). Here the demonstrators were members of a white supremacist organization who proposed to conduct a demonstration in opposition to the federal holiday commemorating the birth of Martin Luther King Jr. But because the county sought to impose a fee under a county ordinance allowing the amount of the fee to vary with the expected costs of law enforcement for the particular demonstration, the demonstrators refused to pay the fee and instead challenged the constitutionality of the ordinance.

Much of Justice Harry Blackmun's majority opinion dealt with the question whether a facial challenge was appropriate, but the most important aspect of 41. In a controversial line of "secondary effects" cases, the Supreme Court has held that secondary effects indirectly caused by the content of speech might be regulated without violating the prohibition on content regulation. Most of those cases have involved zoning and related restrictions on "adult" establishments, where the justification for the regulation was the effect on the neighborhood of such establishments in terms of crime, property values, viability of retail trade, and general quality of life. 42. An important open question, however, is whether after Forsyth County for present purposes is the Court's conclusion that imposing a fee based on the expected costs of police protection and other security constituted impermissible content regulation, given that the amount of security required would plainly vary with the content of the speech. 41 See City of Forsyth County a municipality may take into account equally content-based predictions of audience size in requiring speakers (in advance) to move to a different location or a different time, or in determining whether a permit application was timely. Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). For subsequent applications, discussions, and criticism of the secondary effects idea, see City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap's A.M., 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Seana V. Shiffrin, Speech, Death, and Double Effect, 78 N.Y.U. L. Rev. 1135 (2003); Philip J. Prygoski, The Supreme Court's "Secondary Effects" Analysis in Free Speech Cases, 6 Cooley L. Rev. 1 (1989); and Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987). But if the secondary effects approach is not to be limited to restrictions on places of adult entertainment, the tension between that approach and Forsyth County, where an analogous secondary effect was deemed to be content-based, is inescapable. And although Chief Justice William Rehnquist dissented, joined by Justices Byron White, Antonin Scalia, and Clarence Thomas, the thrust of the dissent was that no such content-based fee had been imposed in this case, or even in previous demonstrations under the ordinance. And so although we do not know how the dissenters would have voted had such a fee been imposed here, it is at least plausible to speculate that in 1992 all nine members of the Supreme Court believed it a violation of the First Amendment to impose upon demonstrators the cost of police protection and related security to control a hostile audience whose hostility was in response to the content of an otherwise constitutionally protected speech, protest, march, demonstration, parade, or rally. 42

On the surface, it appears that we now have a considerable amount of law on the problem of the hostile audience, a body of doctrine going back at least to the 1930s and continuing through a collection of modern lower-court cases applying what seems to be Supreme Court doctrine through 44. On the uses of vagueness doctrine to deal with often hostile law enforcement discretion during the era of civil rights protests and demonstrations, see Risa L. Goluboff, 45. Forsyth County. 43 But appearances can be deceiving. In important respects, the doctrine leaves substantial and increasingly salient questions unanswered. For example, almost all of the Supreme Court decisions described above rely heavily or at times exclusively on the vagueness of the relevant governing standards and thus on the consequent worry that such vagueness will allow excess official discretion, a discretion that would create an undue risk of impermissible content-based (and especially viewpoint-based) discrimination among different types of demonstrators. 44 Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (2016). But a vagueness determination is often the path of least resistance, allowing courts to skirt the direct question of which kinds of non-vague restrictions are permissible and which are not. 45 See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 177-83 (1962); Melvyn R. Durchslag, The Inevitability (and Desirability?) of Avoidance: A Response to Dean Kloppenberg, 56 Case W. Res. L. Rev. 1043, 1046 (2006). As a consequence, we know less than we might-here and elsewhere-about just what kinds of specific (non-vague) standards would be permissible or just how specific the standard must be to avoid invalidation on vagueness grounds.

Other "holes" in the existing doctrine are equally apparent. We know that law enforcement must take all reasonable steps before shutting down a speaker whose words have created a dangerous situation, but we know little about what counts as reasonable; what degree of deployment a police department is required to use; and whether a local police department is required to call upon county law enforcement, state law enforcement, or state military (i.e., the National Guard) forces before taking action against the speaker. Relatedly, if law enforcement fails to protect the speaker, what state and federal remedies, if any, are available to the speaker against the relevant officials and agencies? What follows is an attempt to explore these and other questions now arising in the context of a growing number of increasingly hostile confrontations between speakers and those who would protest and demonstrate against them.

How Much Law Enforcement Is Enough?

As recent events make clear, the modern problem arising from demonstrations, rallies, and even individual inflammatory speakers is rarely that speakers will urge their listeners to take unlawful actions against third parties, as was the case in 48. Sometimes the violence ensues when counter-protesters provoke-in the "fighting words" sense of provoke, Brandenburg v. Ohio. 46 46. 395 U.S. 444 (1969). Nor is it that listeners may be offended, disgusted, or shocked, as in Cohen v. California, 47 47. 403 U.S. 15 (1971). although that is surely often the case. Rather, the problem, and especially the First Amendment problem, is that offended, shocked, disgusted, angry, or strongly disagreeing listeners (or viewers) will threaten or take violent action against the initial speakers and disorder will ensue, as occurred in the cases described above, and as probably would have occurred had the Nazis actually marched in Skokie in 1977. Often the accounts of such events are unclear and conflicting, so it is probably wise to include those events in which audience reactions eventually lead to violence and disorder, 48 see Gooding v. Wilson, 405 U.S. 518 (1972); see also Lewis v. City of New Orleans, 415 U.S. 130 (1974); Rosenfeld v. New Jersey, 408 U.S. 901 (1972)-violent retaliatory reactions from the protesters. even as it is sometimes unclear exactly who, literally or figuratively, has thrown the first punch. Still, the basic idea is that a speaker's words or images are sometimes viewed as highly controversial, offensive, or harmful by some portion of an audience, and genuine physical violence or the imminent threat of it ensues.

One thing that is now settled, if anything is settled, and that the post-49. Feiner cases make reasonably clear, is that law enforcement may not initially or prematurely arrest the speaker. It also appears settled that the state may not prosecute on grounds of incitement the speakers whose speech has prompted the reactions. To do so would be to create what we now call the heckler's veto, allowing those who would protest against a speech the right, in effect, to stop the speaker from speaking. And it is probably settled as well that even if getting the speaker to stop speaking would be genuinely necessary to prevent violence, punitive actions against the speaker may not take place until after the speaker has been given the opportunity to leave the venue on his or her own and, perhaps, absent the speaker's willingness to depart, until after there has been an attempt at a non-punitive removal of the speaker. 49 See supra note 29.

But again, although this much seems more or less clear, what is importantly not clear is just how much the authorities must do before taking some sort of action against the speaker or before bringing the entire event to a halt. In some past cases, as in the civil rights demonstration cases,50. 51. Several days before the Unite the Right rally in Charlottesville on August 12, 2017, the Charlottesville police requested the Albemarle County police (whose jurisdiction does not include the city of Charlottesville) and the University of Virginia police (whose jurisdiction does not extend beyond the University) to take all of the Charlottesville police's 9-1-1 calls, because it knew that its security responsibilities for the rally would preclude being able to take or respond to such calls. 50 See supra notes 30- 38 and accompanying text. the authorities have done little, often because of greater police sympathy with the objectors than with the initial speaker. But even assuming good faith and the best intentions on the part of a municipality, how much must that municipality do? Must it deploy all or most of its police force, even if doing so would create other dangers to safety and security? 51 See Brian McKenzie, Police Prep for Two-Front Response to Rally, Daily Progress (Aug. 10, 2017), http://www.dailyprogress.com/news/local/police-prep-for-two-front-response-for-rally/article_6966afae-7e38-11e7-aca7-63c574abc7a9.html. The requested departments agreed, although of course they were not required to do so. If they had refused, the costs to general security occasioned by providing security to the Unite the Right demonstrators would have been even more obvious. And with the request having been granted, we might ask whether there was less county and university security because the county and university security forces had taken on additional responsibilities without additional staffing or funding. Must it call on non-local authorities, such as county police, state police, or even the National Guard?

These problems come to us now with real numbers and real dollars attached to them. The University of California at Berkeley estimates a cost in the vicinity of $2 million to provide law enforcement and related services for the actual or planned speeches by only three individuals-Ann Coulter, Ben Shapiro, and Milo Yiannopoulos.52. Among numerous media reports with slightly varying numbers, see Jocelyn Gecker, 53. 52 The Cost of Free Speech Isn't Cheap at UC Berkeley, AP News (Sept. 15, 2017), https://apnews.com/f2d6a139cd6b44d7a743932f2b913677;Chris Quintana, Berkeley's Leader Saw Hints That "Free Speech Week" Was a Stunt. Here's Why She Planned for It Anyway, Chron. Higher Educ. (Sept. 26, 2017), http://www.chronicle.com/article/Berkeley-s-Leader-Saw-Hints/241299; and Elise Ulwelling, See Andrew Blake, "Unite the Right" Rally Costs City $70K in Security: Charlottesville Police Dept., Wash. Times (Sept. 26, 2017), http://www.washingtontimes.com/news/2017/sep/26/charlottesville-police-place-70k-price-tag-unite-r. In addition, the University of Virginia itself spent another $63,000 on law enforcement for the August 11 white supremacist rally, a rally coordinated with the Unite the Right rally a day later. Ruth Serven, UVa Spent $63,000 on Response to August Rallies, Daily Progress (Sept. 27, 2017), http://www.dailyprogress.com/news/uva-spent-on-response-to-august-rallies/article_75a1cf38-a3ea-11e7-b66f-ab5b5925c684.html. . It might once have been said that claims about the expense of providing protection for speakers likely to cause Ben Shapiro's Visit Cost UC Berkeley an Estimated $600k for Security, Daily Californian (Sept. 18, 2017), http://www.dailycal.org/2017/09/17/uc-berkeley-security-costs-ben-shapiros-visit-estimated-600k. The city of Charlottesville spent $70,000 on the widely publicized Unite the Right rally on August 12, 2017, as well as $30,000 for providing extra police and other services for a July 8 march by the Ku Klux Klan. 53 54 a violent confrontation with a hostile audience were prone to exaggeration by state and local officials eager to prevent the speech in the first place, but today such suspicions rest on a flimsier basis. Now, with the benefit of actual events and hard numbers, we can understand that officials who are worried about monetary costs, as well as about physical danger and psychological distress, will be concerned that every dollar spent on protecting unpopular or even hateful speakers will be a dollar unavailable to seemingly-at least to them-more worthy purposes.

The question of "How much must the authorities do?" in such situations involves a complex intersection of financial, logistical, personnel, and jurisdictional considerations. In the typical hostile audience scenario, the size of the hostile audience is substantially greater than the size of the group of "primary" speakers.55. Again, the labels are tricky here. As mentioned above, 55 see supra note 2, it is common to refer nowadays to the initial speakers as "protesters" because they are often protesting what they see as a government excessively sympathetic to the claims of racial and religious minorities, and then to refer to the audience as the "counter-protesters." But there is no reason to think that the scenarios are necessarily so limited, and we can imagine events in which a hostile audience is challenging a speaker or group of speakers who are not protesting anything. And often the size of the hostile audience dwarfs the size of the local police force. In such cases, local law enforcement appears to have a series of choices, and it will be useful to explore several alternatives.

One possibility, when faced with the prospect of a large and potentially violent counter-demonstration, is simply for local law enforcement to do the best it can with its existing resources and personnel. If violence breaks out during the event or is about to break out imminently, the police could then, but not earlier, use whatever local mechanisms are available-in Charlottesville it was the declaration of an "unlawful assembly"56. Code of Virginia, §§ 18.2-406, 18.2-407 (2014). On the intersection between these statutes and the First Amendment, see 56 United Steelworkers of America v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).-to bring the event to a halt and to restrict or apprehend those who do not obey lawful orders to disperse. Assuming that the police do not selectively single out the initial speaker (or speaking group) for apprehension or restriction, and assuming that any anticipatory halting of the event requires genuine immediate prospects of violence, there appears to be no First Amendment problem with such an approach. The police do, after all, break up fights all the time, and no one has even suggested that this creates a First Amendment problem, even if, as is so often the case, the fight was ignited by an exchange of what would be, in other contexts, constitutionally protected speech.

For admirable reasons, however, law enforcement officials would generally prefer preventing fights to breaking them up, and here matters become more difficult. Assuming, realistically, that officials anticipate disorder prior to some event, and assuming, more and more realistically these days, that local law enforcement believes that it is unlikely, with existing personnel and resources, to be able to control the violence once it erupts, what should the officials do? What 57. Indeed, the previous version of the Virginia unlawful assembly statute had been invalidated for failure to incorporate a "clear and present danger" standard. must they do? As we know from the cases described above, the government cannot, under existing First Amendment doctrine, simply sanction the speaker or refuse to grant a permit or otherwise refuse to allow the event to take place. 57 Owens v. Commonwealth, 179 S.E.2d 477 (Va. 1971). And as we know from actual events, local law enforcement will typically request support from regional and state law enforcement, such requests being commonly granted if reasonable. But the costs of this extra-jurisdictional or cross-jurisdictional support are considerable, and at some point a city, county, or state will not have the available personnel or funds (however "available" is defined). When this point is reached, can a city then deny a permit or otherwise prohibit the event? And assuming that such decisions will eventually come before the courts, can a city, county, or state argue that providing more than some amount of law enforcement would take funds away from school lunches? From emergency medical services? From public housing? From low-income welfare assistance? From providing services that themselves have a constitutional aspect, such as providing a certain quality of unpaid legal assistance for defendants in criminal cases or, in earlier times, providing police protection for Black children seeking to attend previously segregated schools? Now that we know the actual costs involved in places such as Berkeley and Charlottesville, we cannot avoid confronting the fact that protecting certain speakers exercising their First Amendment rights will come at a cost to other worthy municipal goals, including, at times, protecting or enforcing other constitutional rights.

These problems are exacerbated by the fact that more extreme speakers are likely to require more protection from hostile audiences. And thus, perhaps perversely, the more extreme a group's views are, the greater will be its ability to call upon public resources for its protection, and the greater the amount of the resources it will require for its protection. And thus, even more ironically, it may turn out that difficult decisions of allocation of state and local resources are being made not by legislatures, and not by courts, but by those who are least representative of the public whose resources are being expended.

Alternatively, law enforcement might at some point simply say to prospective demonstrators that it can provide only so much protection and that any injuries caused by disruption beyond the ability of the police to control the audience will simply have to be borne by those who have suffered them. But although local police may on occasion stand back and let a small number of combatants in a bar fight simply fight it out, such an approach seems morally, politically, and perhaps constitutionally unacceptable both for bar fights and for larger events. 58 And as long as that is so, then there is no avoiding the problem occasioned by the fact that providing security for the exercise of First Amendment rights will draw resources away from other uses.

Faced with this inevitability, the entity responsible for the additional costs might attempt to pass them on to others. The University of California or the University of Virginia could raise tuition, presumably following the lead of the car rental companies and the airlines with their fuel price fees, by calling the tuition increase a "First Amendment security fee" or something like that. But universities operate in competitive and price-elastic markets61. 59 59. Which may be less true for major car rental companies and major airlines, and thus as an empirical matter what in antitrust law is called "conscious parallelism" exists less often in the market for higher education. and, thus, attempting to pass costs on to students-or on to faculty by cutting salaries, for example, or on to a university's athletics fan base by raising ticket prices or reducing the number of football and basketball scholarships-will involve other sacrifices. 60 60. Moreover, such attempts to shift costs might, ironically, produce further demonstrations and counter-demonstrations. We know that Berkeley students are inclined toward public protest in the face of proposed tuition increases, and so an attempt to pass on the costs of demonstrations to them seems likely to do little more than encourage more demonstrations. So too with cities and towns, especially ones that seek to attract business by offering lower taxes or special tax breaks or rebates. Here again the incentives are almost all in the direction of municipalities attempting to reduce the costs of what the courts have said they must do in the name of the First Amendment, and as long as it remains generally constitutionally impermissible for federal courts to order state and local governments to raise taxes, 61 62 See Missouri v. Jenkins, 495 U.S. 33 (1990). . the problem appears ever more intractable.62. The alternatives discussed here all assume that under existing doctrine it is impermissible simply to deny a permit, or shut down an event in advance. But is there some degree of very high likelihood of violence that might justify simply prohibiting the event in advance? If not under current doctrine, is the current doctrine up to the tasks and expenses that recent events have exposed? And if ex ante prohibition is impermissible, can there be content-based advance special security requirements based on prior experiences (or public utterances) with the same or similar protesters and the same or similar counter-protesters?

These problems of allocation and prioritization are beyond easy solution, but they have arisen in analogous contexts. Most relevantly, the problem of constitutionally mandated and potentially unpopular allocation and reallocation of scarce resources has been widely discussed in the context of judicially enforced social welfare rights.63. 64. 65. 66. The issue of judicial determination of governmental priorities among worthy goals is most obvious with respect to positive social welfare rights, but it exists as well with other rights. The clearest American examples come from those constitutional rights that actually require affirmative government expenditures, as with the right to counsel. 63 See generally Katharine G. Young, Constituting Economic and Social Rights (2012). Such rights-to housing, education, welfare, and health care, for example-are not much part of the American constitutional landscape, but they have a larger presence elsewhere. And thus when the Constitutional Court of South Africa mandated greater governmental expenditures on housing, Government of Republic of South Africa v. Grootboom, (2001) (1) SA 46 (CC). Perhaps recognizing the difficult allocational problems, the Constitutional Court refused to mandate minimum expenditures, requiring only that the governmental determinations of housing expenditures be reasonable. it forced the South African Parliament to allocate scare resources among, say, housing, education, food, and health in a way other than that which might have been chosen by a judicially unconstrained Parliament. And when the same court required the government to provide anti-retrovirals to those suffering from AIDS, 64 Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC). it inevitably drew resources away from those suffering from other illnesses. This is not the place to replay the many debates already existing on the subject, but it is a reminder that the constitutionalization of an interest will produce resource reallocations, and when constitutionalization is accompanied by judicial enforcement, the consequence, sometimes wise and sometimes not, is judicial determination of social resource allocations. 65 See Gideon v. Wainwright, 372 U.S. 335 (1963). Such concerns about resource allocation might conceivably have been behind subsequent decisions setting both the nature and the limitations of what the state is required to provide. Compare Ross v. Moffitt, 417 U.S. 600 (1974) (no right to appointed counsel for discretionary appeals), with Mayer v. City of Chicago, 404 U.S. 189 (1971) (right to state-provided transcript). But even rights that do not seem so obviously to require expenditures-so-called negative rights such as the rights of freedom of speech and the press-are still indirectly costly, in the sense that they impose limits on what the state in its own unconstrained wisdom might decide to do as a matter of policy. See Frederick Schauer, The Annoying Constitution: Implications for the Allocation of Interpretive Authority, 58 Wm. & Mary L. Rev. 1689 (2017); Frederick Schauer, Constitutionalism and Coercion, 54 B.C. L. Rev. 1881 (2013). Of course existing First Amendment doctrine itself involves judicially mandated reallocation of resources in the direction of speech protection, as compared to how most legislatures would allocate resources absent First Amendment constraints. But even if we take some considerable amount of American-style free speech protection as the baseline, it is worth noting the incremental resource allocation decisions that courts are making when they require substantial protections of speakers in the face of increasingly hostile audiences. 66

More precisely, therefore, the basic normative tension produced by the hostile audience scenario arises from the way in which requiring protection for those who would exercise their First Amendment rights requires a government to spend more than it would have spent had it possessed the ability simply to prohibit the speech-and requires the government either to secure additional resources for such protection or to reallocate resources toward protecting highly provocative speakers and away from other potentially worthy goals. Moreover, as noted above, the problem is not that this reallocation is at the direction of a less popularly responsive court.67. I have no desire to replay several generations of angst about the so-called counter-majoritarian difficulty 67 , see, e.g., Barry E. Friedman, The Birth of an Academic Obsession: The History of the Counter-Majoritarian Difficulty, Part Five, 112 Yale L.J. 153 (2002), but it remains worthwhile to note that every non-majoritarian resource reallocation punctuates and increases the difficulties that trouble those who worry about the counter-majoritarian difficulty in the first place. Rather, it is that under existing doctrine, such First-Amendment-driven reallocations of governmental resources turn out to be substantially in the control of the speaking groups themselves, and so the greater the provocation, the greater the reallocation. Provocative speakers have the ability to capitalize on this phenomenon by forcing the government to spend money for their protection, money that might otherwise be spent in ways the provocative speaker disfavors.

Part of the dilemma of the hostile audience, and part of the dilemma of the resource reallocation that dealing with a hostile audience occasions, is created by the reluctance of officials to impose very much in the way of serious penalties when actual violence breaks out at a rally or demonstration. The possible causes for this reluctance are multiple. Some might stem from a general unwillingness of law enforcement to employ arrest and prosecution as a remedy for street disturbances, regardless of their nature. Some might be attributable to law enforcement sympathy with counter-protesters and hostility to the speakers whose words and symbols have caused outrage in others. And some might arise from the difficulty in identifying actual perpetrators under circumstances in which angry words and then angry gestures and then physical contact appear to come from both sides. But whatever the cause, it is impossible to completely discount the possibility that the actual or impending violence that creates the need for an expensive law enforcement presence is related to the fact that for many members of a hostile audience the initiation of physical contact, often by throwing various projectiles or wielding sticks and poles, seems to them to be a relatively risk-free act, legally if not physically. And thus, perhaps again ironically, a hostile audience may at times draw resources away from governmental goals of which members of the hostile audience might very well approve.

On the Responsibilities-Legal and Otherwise-of the Hostile Audience

Although actual physical violence has, tragically, ensued from rallies and demonstrations in Charlottesville and elsewhere, far more often a hostile audience manifests its hostility in non-physically-violent ways. Sometimes such tactics include impeding speakers' access to the designated location for the demonstration, as happened in Charlottesville when a group of religious leaders locked arms to block the white supremacists from reaching the park where the rally was to occur.

This type of obstruction raises few conceptual difficulties. Such blocking or obstructing is typically unlawful,68. On obstructing lawful passage as a public nuisance, 68 see, e.g., Cal. Civ. Code §3479 (West 2016); Conn. Gen. Stat. §53a-182a (2016). A useful discussion of the relevant common law can be found in Watchtower Bible & Tract Society of New York, Inc. v. Sagardia De Jesus, 634 F.3d 3, 15-16 (1st Cir. 2011). and the reluctance to sanction the obstructers is often a combination of law enforcement sympathy for their cause and law enforcement fear of embarrassing publicity if the obstructers must be carried away or otherwise physically removed, a fear heightened in an age when everything is photographed by someone with a smartphone. But there is little doubt that blocking can be subject to sanctions of some variety, and we would scarcely hesitate before concluding that the police and the legal system may intervene to punish or restrict those who would keep people from getting to their home, their place of business, or the bus stop. There should be even less doubt about the impermissibility of the police responding to the blocking by sanctioning or moving the speakers who are being blocked. If speakers are prevented by others from getting to where they have a legal and constitutional right to be, the remedy cannot, at least in theory, be to tell the speakers that they must go elsewhere.

There remains an interesting question, however, as to what private remedies are available against those who would obstruct others in the exercise of their constitutional rights. If the obstruction is physical, presumably an injunction would be available, but the typical demonstration scenario involves little notice in advance and takes place in time periods shorter than the ability of formal legal processes to respond. There could still, however, be after-the-fact common law or statutory remedies that might, depending on the circumstances, undergird an action for false imprisonment, assault, creating a public nuisance, or possibly interference with advantageous relations, even though some or all of these, in most circumstances, might be somewhat of a stretch as a matter of tort law. Initially plausible might be some variety of civil rights action, given that blockers are preventing the exercise of a constitutional right. And we might think that the most likely civil rights action would be based on, ironically, Section 1985(3) of Title 42 of the United States Code,69. 42 U.S.C. § 1985(3) (2014). I say "ironically" because the statute was originally enacted in 1871 as the Ku Klux Klan Act, designed to provide a cause of action 70. 71. 69 against the Klan, even though an action to interfere with the exercise of a constitutional right might, in 2017, be brought by the Klan. . which creates a private cause of action against those who would conspire to deprive others of their civil rights. See generally Steven F. Shatz, The Second Death of 42 U.S.C. Section 1985(3): The Use and Misuse of History in Statutory Interpretation, 27 B.C. L. Rev. 911 (1986). But Section 1985(3) does not on its face apply to those who would deprive others of all or any of their civil rights, only to those who would conspire to deprive others of the "equal protection of the laws" or of their "equal privileges and immunities under the laws." Although the latter phrase might be argued to apply, especially if we conveniently ignore the word "equal," the far more likely textual conclusion, and one supported by the cases, See, e.g., United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825 (1983). is that neither Section 1985(3) nor any other federal statute makes it a crime, or creates a private cause of action, when private persons interfere with the free speech rights of others. 70 71

The unavailability of a federal civil rights action does not mean that a state could not create such an action, or that a community could not enact an ordinance prohibiting such interference, or that a police officer could not issue a lawful order to counter-protesters to stop interfering, the violation of which would constitute the independent offense of disobedience of a lawful order of a police officer. But although some number of universities have or are now creating rules forbidding students from interfering with speakers at public university events, there do not yet seem to exist parallel state or local laws explicitly prohibiting obstructing the exercise of free speech rights. At the present time, therefore, those who would wish for sanctions against interference must rely on controversial and expansive interpretations of existing criminal law or tort law. None of this is to say that enactment or use of such laws would necessarily be wise as a matter of policy. The risks of such laws may well outweigh their potential benefits, and their misuse might well overwhelm their apt uses. But even if such laws-at least on the state or national level, as opposed to, say, university regulations regulating members of the university community-are in the final analysis unwise, it is worth thinking carefully and critically about the consequences of not providing speakers with remedies, apart from those available under general criminal and tort law, against those who would interfere with the exercise of their constitutional rights.

An even greater problem, however, even assuming the existence of some sort of rule prohibiting interference or disruption, concerns how we would define the interfering or disrupting behavior. Until now we have been considering only physical interference, where the application of various existing criminal, civil, and regulatory laws might be plausible, but what of the counter-protesters who bang on drums, engage in loud yelling, or create deafening noises with air horns? The use of such aural obstruction is these days as common as it is effective, but again a question arises about whether there is (or should be) a remedy for this kind of obstruction. Presumably a venue might impose a content-neutral noise regulation, along the lines of the regulation upheld for the public streets in Kovacs v. Cooper, 72 72. 336 U.S. 77 (1949). but such a regulation would be most plainly constitutional only if it restricted the original speakers as well as those who are trying to keep them from being heard. The more difficult question is whether a content-neutral restriction on those who would, with noise or signs or otherwise, interfere with the lawful speech of a speaker can be sustained against the claim that the objectors have no fewer free speech rights than does the original speaker. We worry about the so-called heckler's veto, but the First Amendment, after all, presumably protects the hecklers as well as the hecklees. 73

Although it is plain that hecklers have free speech rights, specifying just what those rights are presents more difficult issues. If a protester has a free speech right to post signs, does a counter-protester have the free speech right to remove the signs or paint over them? If a protester has a right to speak, does a counter-protester have a free speech right to drown out the original speaker with horns or drums? In the clear cases of sign removal or plain drowning out, the argument that hecklers or counter-protesters have free speech rights to prevent a speaker's (or writer's) message from being heard or seen seems strained. As long as reasonable and content-neutral time, place, and manner restrictions are permissible, then some sort of first-come, first-served regulations would seem constitutionally permissible as well. But that which is constitutionally permissible may remain politically or morally problematic, and we might wonder whether privileging those who get there first, or apply for a permit first, will reward those who have the resources to be, figuratively and occasionally literally, first in line. As a constitutional matter, however, such objections seem less powerful than the argument for at least the reasonableness of regulations aimed at making the right to free speech meaningful and designed to restrict those who would make its exercise ineffective. 74

Short of actual drowning out by sound or by obstruction or destruction of a written message, however, the question of how to deal with other forms of interference by hecklers or counter-protesters is more problematic. If there is a public concert on July 4 featuring the community band playing John Philip Sousa marches, may audience members bring their own instruments (or CD players) to play peace songs by Peter, Paul, and Mary at the same time and at the same volume? If the community orchestra is playing an overture from a Wagner opera, may members of an audience offended by Wagner's anti-Semitic associations play annoying popular music-"The Little Drummer Boy," for example-at the same time, even if at lower volume? And if we suppose that restricting such interference is permissible, can we distinguish these examples from someone playing "God Bless America" while a speaker is delivering an anti-war speech, or from someone who holds up the graphic homoerotic photographs of Robert Mapplethorpe during a public lecture about pretty much anything? In such cases, restriction of the counter-speaker seems often inappropriate and sometimes unconstitutional, but non-restriction may amount to the heckler's veto in different clothing.

In dealing with such issues, much appears to depend on the nature of the forum, in the non-technical sense of that term. And thus restrictions on non-drowning-out interference that might be impermissible for public speeches might be permissible for public concerts, and sign restrictions that would be permissible for lectures in a lecture hall might not be permissible in a public park. But even when restrictions on disruption of or interference with speakers lawfully entitled to speak in a given venue are permissible, questions about what forms of behavior actually amount to interference will persist, although they may be questions of cognitive psychology more than questions of law. Consider, for example, the experiences of many of us when the person next to us at the theater, at a concert, or at the movies is loudly chewing gum. And what if, instead, those people were holding blocks of smelly Limburger cheese? Or pieces of dog poop? Or nibbling on the carcass of an uncooked dead bat? These increasingly disgusting examples are designed to suggest that interference need not come only from greater decibels produced by the audience, or from someone who literally obliterates someone else's sign, but from a large number of other behaviors that some would consider only mildly annoying and easily ignored, but others would find as obstructing of their ability actually to hear and appreciate the speaker as the distractions caused by drums and loud horns. And the same is true of visual distractions: It is hard to imagine a pro-choice speaker76. There are also connections between the issues raised in this paragraph and the concerns about silencing that have been raised by the feminist anti-pornography movement. 75 not feeling interfered with were a large number of audience members to hold up signs portraying aborted fetuses. 76 See Catharine A. MacKinnon, Only Words (1993); see also Rae Langton, Sexual Solipsism: Philosophical Essays on Pornography and Objectification (2009); Speech and Harm: Controversies over Free Speech (Ishani Maitra & Mary Kate McGowan eds., 2012). If the speech of one (or many) can effectively silence the speech of another by changing the meaning or the force of what another says, as I believe it can, is this to count as an interference for legal purposes? And if it is not to count as interference for purposes of legal remedies, is it nevertheless to count as interference for purposes of moral or political evaluation? We think, correctly, that picketers against a speaker whose picketing is outside the venue have First Amendment rights no less valuable than the First Amendment rights of the speaker, but we would be foolish to deny that such picketing may at times simply change the nature of the speaker's speech. Just as Marcel Duchamp's mustachioed Mona Lisa has made it impossible for me ever to see the real Mona Lisa without wondering where the mustache is, and just as "The Lone Ranger"has made it impossible for many people of my generation to appreciate without distraction Rossini's "William Tell Overture," so too can counter-protesters alter the nature of a speaker's speech without ever engaging in physical interference and thus without ever risking legal liability. But when counter-protesters should do so, when we should praise or castigate them for doing it, and whether such actions are inconsistent with the deeper purposes of our free speech regime are questions that go beyond and beneath the law, even as they may be more important than questions about the law. On all of this, albeit without specific application to the problem of the hostile or obstructing audience, see Frederick Schauer, The Ontology of Censorship,in Censorship and Silencing: Practices of Cultural Regulation 147 (Robert C. Post ed., 1998).

The question of how much interference with free speech should be permitted is thus not only a question of physical interference, although such interferences appear to be the ones most amenable to legal remedies. It is also a question of which forms of non-physical interference are likely to be more or less disruptive, which should be sanctioned in some way, which should be encouraged, and which should be discouraged. But to answer those questions we would need to confront directly the largest issues of just what it is that a free speech regime-legal and otherwise-is designed to accomplish, a task that obviously transcends the hostile audience issues on which this paper has focused.

Conclusion: The Limits of the Law

There is more that can and should be said about the law on interference with or disruption of demonstrations, such as it is, but as is so often the case, the behavior that takes place in the world is often more or less than what the law permits or requires. Although this paper began with the hard law of the First Amendment as that law has in the past applied and does now apply to the problem of the hostile audience, the analysis has exposed some larger issues about speaker and listener behavior beyond the law. Under all but the self-expression justifications for freedom of speech, and thus under the arguments from truth-finding and from democratic deliberation, among others, free speech is about a certain kind of environment in which we learn from each other, deliberate with each other, and engage in various forms of collective communicative activity. In important respects, the actively hostile audience challenges not only the speaker but also the particular free speech-inspired legal and social rules according to which the speaker is protected in the first place. But whether that challenge, in the age of the neo-Nazis, in the age of the resurgence of the Klan, and in the age of the rise of other white supremacist speakers, is fundamentally sound or fundamentally misguided is a question that can hardly be answered in the context of this more limited inquiry.

© 2017, Frederick Schauer.

# data[].attributes.attachment_link.description
In my own newly famous city of Charlottesville, Virginia, as well as in Berkeley, Boston, Middlebury, and an increasing number of other locations, individuals and groups engaging in constitutionally protected acts of speaking, parading, protesting, rallying, and demonstrating have become targets for often-large groups of often-disruptive counter-protesters. 1 1.

# data[].attributes.headline
Charlottesville's Robert E. Lee Statue Will Be Melted Down, Transformed into New Art

# data[].attributes.subject
Charlottesville's Robert E. Lee Statue Will Be Melted Down, Transformed into New Art

# data[].attributes.attachment_link.readable_text
Last summer, Black Lives Matter protests sparked by the murder of George Floyd spurred communities across the globe to remove or dismantle the racist public art decorating their government halls, museums, parks and city squares. Many of these monuments were tucked away in storage facilities. Others, such as the American Museum of Natural History's Theodore Roosevelt statue and the toppled bronze likeness of an enslaver in Bristol, England, found new homes in museums.

In Charlottesville, Virginia, lawmakers decided to transform one torn-down monument entirely, reports Teo Armus for the Washington Post. Instead of storing a statue of Confederate General Robert E. Lee, officials will melt down the 1,100-pound bronze monument into metal ingots-raw material that can then be used to create new art.

City council members approved the proposal unanimously on Tuesday morning, reports Ginny Bixby for the Charlottesville Daily Progress. Put forth by the local Jefferson School African American Heritage Center (JSAAHC), the plan was one of six considered by lawmakers during months of deliberation.

According to JSAAHC's proposal, organizers plan to hold community listening sessions in barbershops, places of worship, schools and other businesses throughout Charlottesville. With community input, the " Swords Into Plowshares " team hopes to select an artist or artists to design a new public artwork by 2024.

The museum has already raised more than half of the $1.1 million required to bring its project to fruition and is continuing to fundraise online. Proceeds will be used to donate the transformed statue back to the city, where it will go on display by 2026.

JSAAHC executive director Andrea Douglas tells the Post that the project "will allow Charlottesville to contend with its racist past."

She adds, "It really is about taking something that had been harmful and transforming it into something that is representative of the city's values today."

In a JSAAHC video describing the proposal, the director says, "I think this project offers a road map for communities who are also grappling with what to do with their statues."

The statue of Lee on horseback has sat in storage since July, when it was removed from Market Street Park by city officials. The work was installed in 1924 as one of hundreds of similar statues commissioned by white authorities across the United States in the 19th and 20th centuries.

Particularly in the Jim Crow South, these Confederate monuments paid "homage to a slave-owning society and [served] as blunt assertions of dominance over" Black Americans, wrote Brian Palmer and Seth Freed Wessler for Smithsonian magazine in 2018.

Controversy over the Charlottesville statue reignited in 2017, when it was became a "focal point" of the infamous "Unite the Right" rally, as Armus reported for the Washington Post in July.

Responding to calls for the statue's removal, white supremacist groups organized a protest that quickly turned violent. A man drove his car through a crowd of counter-protesters during the two-day-long demonstrations, injuring dozens of people and killing 32-year-old Heather Heyer.

Council members will likely reconvene on December 20 to decide the fates of two additional statues removed in July. One depicts Confederate general Thomas "Stonewall" Jackson, while the other portrays explorers Meriwether Lewis and William Clark and Lemhi Shoshone interpreter Sacajawea, per the Daily Progress.

According to Monument Lab's National Monuments Audit, a recent survey of more than 48,000 statues, plaques, parks and obelisks across the country, Lee is the sixth-most represented historical figure in the American commemorative landscape. As a general for the Confederacy, Lee led thousands to their deaths in a war waged in the name of preserving slavery. He personally enslaved multiple people and, as executor of his father-in-law's estate, oversaw almost 200 enslaved people on three Virginia plantations.

Elsewhere in Virginia, authorities in the state capital of Richmond recently dismantled a separate equestrian statue of Lee. Standing 21 feet tall and weighing nearly 12 tons, the monument was the largest Confederate sculpture in the United States prior to its removal in September.

Historian Jalane Schmidt, director of the University of Virginia's Memory Project, worked with JSAAHC to develop the proposal. Her organization develops public engagement around issues of public memory as they relate to the Charlottesville rally.

In the JSAAHC video, Schmidt notes that "Swords Into Plowshares" will offer locals the opportunity to heal from or reckon with the events of 2017 and beyond.

"Our community will confront white supremacy with creativity," the scholar adds. "Beauty will heal the ugliness of the past."

# data[].attributes.attachment_link.title
Charlottesville's Robert E. Lee Statue Will Be Melted Down, Transformed Into New Art

# data[].attributes.attachment_link.description
Last summer, Black Lives Matter protests sparked by the murder of George Floyd spurred communities across the globe to remove or dismantle the racist public art decorating their government halls, museums, parks and city squares. Many of these monuments were tucked away in storage facilities.

# data[].attributes.headline
Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis

# data[].attributes.subject
Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis

# data[].attributes.attachment_link.readable_text
An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important.

The American Civil Liberties Union took root in the defense of conscientious objectors to World War I and Americans accused of Communist sympathies after the Russian Revolution. Credit... Ting Shen for The New York Times

It was supposed to be the celebration of a grand career, as the American Civil Liberties Union presented a prestigious award to the longtime lawyer David Goldberger. He had argued one of its most famous cases, defending the free speech rights of Nazis in the 1970s to march in Skokie, Ill., home to many Holocaust survivors.

Mr. Goldberger, now 79, adored the A.C.L.U. But at his celebratory luncheon in 2017, he listened to one speaker after another and felt a growing unease.

A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. and that Black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an A.C.L.U. official argued it was perfectly legitimate for his lawyers to decline to defend hate speech.

Mr. Goldberger, a Jew who defended the free speech of those whose views he found repugnant, felt profoundly discouraged.

"I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle," he said in a recent interview. "Liberals are leaving the First Amendment behind."

The A.C.L.U., America's high temple of free speech and civil liberties, has emerged as a muscular and richly funded progressive powerhouse in recent years, taking on the Trump administration in more than 400 lawsuits. But the organization finds itself riven with internal tensions over whether it has stepped away from a founding principle - unwavering devotion to the First Amendment.

Its national and state staff members debate, often hotly, whether defense of speech conflicts with advocacy for a growing number of progressive causes, including voting rights, reparations, transgender rights and defunding the police.

Those debates mirror those of the larger culture, where a belief in the centrality of free speech to American democracy contends with ever more forceful progressive arguments that hate speech is a form of psychological and even physical violence. These conflicts are unsettling to many of the crusading lawyers who helped build the A.C.L.U.

The organization, said its former director Ira Glasser, risks surrendering its original and unique mission in pursuit of progressive glory.

"There are a lot of organizations fighting eloquently for racial justice and immigrant rights," Mr. Glasser said. "But there's only one A.C.L.U. that is a content-neutral defender of free speech. I fear we're in danger of losing that."

Founded a century ago, the A.C.L.U. took root in the defense of conscientious objectors to World War I and Americans accused of Communist sympathies after the Russian Revolution. Its lawyers made their bones by defending the free speech rights of labor organizers and civil rights activists, the Nation of Islam and the Ku Klux Klan. Their willingness to advocate for speech no matter how offensive was central to their shared identity.

One hears markedly less from the A.C.L.U. about free speech nowadays. Its annual reports from 2017 to 2019 highlight its role as a leader in the resistance against President Donald J. Trump. But the words "First Amendment" or "free speech" cannot be found. Nor do those reports mention colleges and universities, where the most volatile speech battles often play out.

Since Mr. Trump's election, the A.C.L.U. budget has nearly tripled to more than $300 million as its corps of lawyers doubled. The same number of lawyers - four - specialize in free speech as a decade ago.

Some A.C.L.U. lawyers and staff members argue that the First Amendment, which guarantees freedom of speech and the press - as well as freedom of religion, assembly and petitioning the government - is more often a tool of the powerful than the oppressed.

"First Amendment protections are disproportionately enjoyed by people of power and privilege," said Dennis Parker, who directed the organization's Racial Justice Program until he left in late 2018.

To which David Cole, the national legal director of the A.C.L.U., rejoined in an interview: "Everything that Black Lives Matter does is possible because of the First Amendment."

A tragedy also haunts the A.C.L.U.'s wrenching debates over free speech.

In August 2017, officials in Charlottesville, Va., rescinded a permit for far-right groups to rally downtown in support of a statue to the Confederate general Robert E. Lee. Officials instead relocated the demonstration to outside the city's core.

The A.C.L.U. of Virginia argued that this violated the free speech rights of the far-right groups and won, preserving the right for the group to parade downtown. With too few police officers who reacted too passively, the demonstration turned ugly and violent; in addition to fistfights, the far right loosed anti-Semitic and racist chants and a right-wing demonstrator plowed his car into counterprotesters, killing a woman. Dozens were injured in the tumult.

Revulsion swelled within the A.C.L.U., and many assailed its executive director, Anthony Romero, and legal director, Mr. Cole, as privileged and clueless. The A.C.L.U. unfurled new guidelines that suggested lawyers should balance taking a free speech case representing right-wing groups whose "values are contrary to our values" against the potential such a case might give "offense to marginalized groups."

A.C.L.U. leaders asserted that nothing substantive had changed. "We should recognize the cost to our allies but we are committed to represent those whose views we regard as repugnant," Mr. Cole said in an interview with The New York Times.

But longtime free speech advocates like Floyd Abrams, perhaps the nation's leading private First Amendment lawyer, disagreed. The new guidelines left him aghast.

"The last thing they should be thinking about in a case is which ideological side profits," he said. "The A.C.L.U. that used to exist would have said exactly the opposite."

The 2016 election blew like a hurricane over the A.C.L.U. Lawyers texted one another in disbelief; a deputy director broke into sobs as he told his 4-year-old that Mr. Trump had won; some staff members spoke of a nation irredeemably racist.

Mr. Romero, who is Latino and the organization's first nonwhite executive director, arrived at the office just past dawn the next day. He crafted a letter to Mr. Trump and ran it as a full-page ad in The Times, attacking the president-elect on such issues as immigration and abortion rights. "If you do not reverse course and instead endeavor to make these campaign promises a reality," he warned, "you will have to contend with the full firepower of the A.C.L.U."

The A.C.L.U. became an embodiment of anti-Trump resistance. More than $1 million in donations sluiced into its coffers within 24 hours and tens of millions of dollars followed in 2017, making the organization better funded than ever before. Salaries reflected that - Mr. Romero now makes $650,000 and some lawyers in senior management $400,000. Its 2017 annual report came with "RESIST" superimposed on an image of the Statue of Liberty.

When Brett M. Kavanaugh was nominated for the Supreme Court, the A.C.L.U. surprised longtime supporters by entering the fray, broadcasting a commercial that strongly suggested the judge was guilty of sexual assault. When a book argued that the increase in the number of teenage girls identifying as transgender was a "craze" caused by social contagion, a transgender A.C.L.U. lawyer sent a tweet that startled traditional backers, who remembered its many fights against book censorship and banning: "Stopping the circulation of this book and these ideas is 100% a hill I will die on."

The A.C.L.U. embraced dormitories set aside for Black and Latino students and argued that police forces were inherently white supremacist. "We need to defund the budgets," Mr. Romero said last year. "It's the only way we're going to take power back."

Mr. Romero insisted he oversaw no retreat from the fight for free speech and points to key cases to underscore that. In recent years the A.C.L.U. argued that the attempt by Gov. Andrew M. Cuomo of New York to deny the National Rifle Association access to financial services infringed on freedom of speech; defended motorists' right to put the Confederate flag on specialty license plates; and criticized Facebook and Twitter for banning Mr. Trump.

"I recall a conversation with a Planned Parenthood leader after we defended the right of protesters to stand outside clinics," Mr. Romero said. "She was annoyed and told me, 'When you lie down with wolves, you wake up with fleas.' I replied, 'If I have fleas, I wash them off in the morning.'"

Still, many of the group's newly hired lawyers - the staff has grown markedly more diverse under Mr. Romero, who is the organization's first openly gay executive director - often are most energized by issues that range beyond and sometimes collide with free speech advocacy.

"Am I sorry I leaned into our opposition to Trump? Hell no," Mr. Romero said. "I'm asked, 'Are we a free speech or racial justice organization?' and I answer, 'Yes.' We are a domestic human rights organization."

That said, in an interview Mr. Romero acknowledged missteps. The A.C.L.U. in 2018 poured $800,000 into what looked like a campaign ad for Stacey Abrams during her bid for governor of Georgia - a questionable move for a nonprofit organization that calls itself nonpartisan. "I probably would do a different ad today to be completely candid," Mr. Romero said.

The $1 million anti-Kavanaugh ad campaign, which compared his denial of a sexual assault accusation to Bill Cosby's incredulity at mounting allegations and Bill Clinton's lie about an affair, left some longtime lawyers inside the A.C.L.U. uncomfortable. No organization aside from the U.S. government argues more cases before the Supreme Court, and A.C.L.U. amicus briefs have drawn praise from even the strictly conservative justice Clarence Thomas.

"I share the discomfort with the A.C.L.U.'s engaging in partisan-looking activity; it risks taking luster off our reputation as straight shooters," noted Ben Wizner, the longtime head of the A.C.L.U.'s free speech, privacy and technology project.

The money that flooded into the A.C.L.U. after Mr. Trump's election allowed Mr. Romero to flex the organization's progressive muscles and greatly increase the size of its staff. Many of the new employees, however, were not nearly as supportive of the A.C.L.U.'s traditional civil liberties work. They worked inside their policy silos, focused on issues like immigration, transgender rights and racial justice.

Some fired off tweets like bottle rockets, causing headaches and confusion. This March, Senator Chuck Grassley of Iowa - who survived a bout with the coronavirus - was conducting confirmation hearings for a former A.C.L.U. lawyer who was nominated to serve as associate attorney general. Rebecca McCray, an A.C.L.U. editor, listened to the sharp tone of Mr. Grassley, a Republican, as he grilled the nominee and felt a flush of anger.

She tweeted: "Tried to watch Vanita Gupta's confirmation hearing but got too angry Chuck Grassley survived COVID."

Mr. Romero quickly apologized to Mr. Grassley's staff and took no action against his staffer. Asked about Ms. McCray, he responded, "She is highly valued by me."

Those who control the official A.C.L.U. Twitter account can prove erratic, at the national and state levels. In 2018, the Trump administration proposed revamping Obama-era regulations on Title IX, which sets guidelines for investigations of sexual harassment and assault on campuses. It strengthened protections for the accused.

The A.C.L.U. tweet in response to the news was scathing: This "promotes an unfair process, inappropriately favoring the accused."

Because the A.C.L.U. has championed the due process rights of the accused for 100 years, the tweet came as a surprise. It turned out a staff member at the A.C.L.U.'s women's rights project had typed and clicked "send."

Mr. Cole, the legal director, saw the tweet and as the organization addressed the issue going forward, it stated that the Trump rules offered "important provisions that promote fair process for all parties."

In another case, a police officer in Columbus, Ohio, fatally shot 16-year-old Ma'Khia Bryant as she tried to plunge a knife into a young woman. The A.C.L.U. of Ohio tweeted, "@ColumbusPolice murdered a 15 year old Black girl.

Here too was another example - in this case an A.C.L.U. affiliate - of seemingly overriding its traditional insistence on the presumption of innocence. Video shows that the officer made a split-second decision. And murder is determined in a court.

Mr. Romero was philosophical about the cacophony. "My staff are the major consumers of freedom of speech within the organization," he said.

But in interviews, several younger lawyers suggested a toll taken. Their generational cohort, they said, placed less value on free speech, making it uncomfortable for them to express views internally that diverged from progressive orthodoxy.

"A dogmatism descends sometimes" inside the A.C.L.U., noted Alejandro Agustin Ortiz, a lawyer with the racial justice project. "You hesitate before you question a belief that is ascendant among your peer group."

Some argued for carefully vetting hires. "I never do a job interview without raising Skokie/Charlottesville and asking if they are comfortable with that history," said a lawyer who asked not to be named because of the fear of inflaming colleagues. "Not many colleagues agree. It's about the cause."

Mr. Romero offered a verbal shrug. "I reject that we need an entrance exam on civil liberties to establish the bona fides needed to work here," he said.

The A.C.L.U. has in fact often gloried in its internal contentions. It split over decisions to represent the Nazis in the 1930s, the Ku Klux Klan in the 1960s, and the Nazis in the 1970s. After Skokie, a leader of the left-wing National Lawyers Guild complained of its "poisonous evenhandedness."

In the 1980s, Nadine Strossen, the A.C.L.U.'s former president, wrote an essay defending it against charges of "trendy liberalism." All of this prefigured current tensions, not least the debacle at Charlottesville.

Less than two months after that terrible day in Charlottesville, Claire Gastanaga, then the executive director of the A.C.L.U. chapter in Virginia, drove to the College of William & Mary to talk about free speech. One of her board members had resigned after Charlottesville, tweeting, "When a free speech claim is the only thing standing in the way of Nazis killing people, maybe don't take the case."

Ms. Gastanaga planned to argue that by defending the rights of the objectionable, the A.C.L.U. preserved the rights of all. She walked onstage and dozens of students who proclaimed themselves allied with Black Lives Matter approached with signs.

"Good, I like this," Ms. Gastanaga said. "This illustrates very well --"

Those were the last of her words that could be heard.

"A.C.L.U., you protect Hitler, too!" the students chanted, setting up a line that stretched the width of the stage.

They stood in front of the stage and Ms. Gastanaga and for half an hour blocked anyone in the audience from approaching and talking with her. She eventually left.

"The revolution," the students chanted, "will not uphold the Constitution."

The debate inside the A.C.L.U. proved scarcely less charged. "People were rubbed raw," said Mr. Parker, who directed its racial justice project and took part in these impassioned discussions. "I've never seen anything like it."

A decade earlier, Mr. Parker, who is Black, debated before taking a job at the A.C.L.U. He had worried about representing white fascists of the sort who paraded about in Charlottesville. "I have a predisposition to be less concerned about the rights of people who would like to see me dead, and that did complicate my decision."

After Charlottesville, Mr. Cole wrote an essay in The New York Review of Books that defended the decision. "We protect the First Amendment not only because it is the lifeblood of democracy and an indispensable element of freedom, but because it is the guarantor of civil society itself," he wrote.

That ignited anger among some 200 staff members, who signed a letter stating the essay was "oblivious" to the A.C.L.U.'s institutional racism. The A.C.L.U.'s upper ranks are diverse; 12 of the top 21 leaders are either Black, Latino or Asian. Fourteen are women.

"David's approach fails to consider how our broader mission - which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment - continues to be undermined by our rigid stance," they wrote.

The A.C.L.U. held wide-ranging discussions with its staff, and summary sheets of those gatherings captured the raw feelings within. One group demanded that the A.C.L.U. "no longer defend white supremacists." Another said top leaders "are not to be trusted alone with making decisions on these delicate" questions.

The A.C.L.U. lawyers who defend speech acknowledged tension. "I don't sleep or eat well when I take cases defending such clients, but this is who we are," said Emerson Sykes, a Black lawyer who previously worked to represent those who struggle for free speech and assembly across Africa. "I have worked in countries where the government locks you up for speech."

Other senior officials however pointedly distanced themselves from the Virginia affiliate, saying it failed to recognize the nature of its client.

"They got snookered," said a longtime senior leader with the A.C.L.U. involved with many decisions over the years. "We don't want to be in-house counsel for the N.R.A. or the alt-right."

Two decades ago, as free speech battles erupted on college campuses, a new civil liberties group took shape to vigorously advocate for First Amendment principles. Called the Foundation for Individual Rights in Education, the organization was purposely nonideological and nonpartisan. A founder, Harvey Silverglate, had served on the board of the A.C.L.U. of Massachusetts and considers it an ally even as he sees its limits.

"When you deal with campus hate speech, you know they most often won't file a brief with you," Mr. Silverglate said. Mr. Romero, he added, "is not a liberal, he's a progressive. His A.C.L.U. prefers cause work."

That may be an overstatement. Mr. Wizner, who runs the A.C.L.U.'s free speech project, has represented the National Security Agency whistle-blower Edward Snowden and rattled off important cases his lawyers handled. But FIRE, he acknowledged, has taken a strong lead on campuses, where so many consequential battles are fought.

"FIRE does not have the same tensions," Mr. Wizner said. "At the A.C.L.U., free speech is one of 12 or 15 different values."

Traditionally, the A.C.L.U.'s state affiliates monitor and argue free speech cases, but in recent years some shied from such fights. Here are a few examples:

In 2015, University of Missouri students protested racism and established an encampment in a campus quad. When a student journalist tried to take photos and talk to protesters, students and a communications professor physically blocked the reporter from doing so. The A.C.L.U. of Missouri applauded the "courageous" leadership of student activists and faculty members, and two national A.C.L.U. officials wrote columns about the protests. They did not mention First Amendment rights.

Four years later at the University of Connecticut, two white students walking home late at night loudly repeated a racial slur. In the ensuing uproar, the university police arrested and charged the students with ridicule on account of race.

The A.C.L.U. of Connecticut demanded that the university hire 10 Black faculty and staff members and require a freshman course on ending racism on campus. It made no mention of the arrests, other than to opine that the police force is "an inherently white supremacist institution."

Two days later, Mr. Cole issued a corrective: The students' conduct "is not criminal," he stated. "The First Amendment protects even offensive and hateful speech."

Even the New York Civil Liberties Union, traditionally an independent-minded A.C.L.U. affiliate that has produced several national executive directors and stood at the forefront in defending free speech cases, did not want to talk about those issues. A spokeswoman for its executive director, Donna Lieberman, said, "We don't feel we'll have anything to add."

Such reticence sounded like terra incognita to Norman Siegel, who led the New York group when Mayor Rudolph W. Giuliani tried to block the Ku Klux Klan from rallying downtown in 1999.

The Klan was anathema to Mr. Siegel, but he fought like a cornered cat for its First Amendment rights. "Did I give anyone else a veto? No way," he said. "I would have compromised my integrity."

Mr. Siegel, who is white, drew support from the Black publisher of The Amsterdam News and from the Rev. Al Sharpton, a Black activist, who filed suit in support of the N.Y.C.L.U. Mr. Siegel recalled receiving a standing ovation from a Black audience.

"A woman came up and said: 'You did the right thing. If Giuliani could shut down the Klan, he would do it to us,'" he recalled.

# data[].attributes.attachment_link.title
Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis

# data[].attributes.attachment_link.description
An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important. It was supposed to be the celebration of a grand career, as the American Civil Liberties Union presented a prestigious award to the longtime lawyer David Goldberger.

# data[].attributes.headline
Chaplinksy v. State of New Hampshire (1942)

# data[].attributes.subject
Chaplinksy v. State of New Hampshire (1942)

# data[].attributes.body
https://supreme.justia.com/cases/federal/us/337/1/

# data[].attributes.attachment_link.readable_text
U.S. Supreme Court
Terminiello v. Chicago, 337 U.S. 1 (1949)Terminiello v. Chicago No. 272 Argued February 1, 1949 Decided May 16, 1949 337 U.S. 1 CERTIORARI TO THE SUPREME COURT OF ILLINOIS
In a meeting which attracted considerable public attention, petitioner addressed a large audience in an auditorium outside of which was an angry and turbulent crowd protesting against the meeting. He condemned the conduct of the crowd outside and vigorously criticized various political and racial groups. Notwithstanding efforts of a cordon of police to maintain order, there were several disturbances in the crowd. Petitioner was charged with violation of an ordinance forbidding any "breach of the peace," and the trial court instructed the jury that any misbehavior which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" violates the ordinance. Petitioner did not except to that instruction, but he did maintain at all times that, as applied to his conduct, the ordinance violated his right of free speech under the Federal Constitution. He was convicted on a general verdict, and his conviction was affirmed by an intermediate appellate court and by the Supreme Court of the State.

1. As construed by the trial court and applied to petitioner, the ordinance violates the right of free speech guaranteed by the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. -5.

2. It is immaterial that petitioner took no exception to the instruction, and that, throughout the appellate proceedings, the state courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting "fighting words,"

Page 337 U. S. 2

400 Ill. 23, 79 N.E.2d 39, reversed.

Petitioner was convicted in a state court of violating a city ordinance forbidding any breach of the peace. The Illinois Appellate Court affirmed. 332 Ill.App. 17, 74 N.E.2d 45. The Supreme Court of Illinois affirmed. 400 Ill. 23, 79 N.E.2d 39. This Court granted certiorari. 335 U.S. 890. Reversed, p. .

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago, and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the

Page 337 U. S. 3

Christian Veterans of America. The meeting commanded considerable public attention. The auditorium was filled to capacity, with over eight hundred persons present. Others were turned away. Outside of the auditorium, a crowd of about one thousand persons gathered to protest against the meeting. A cordon of policemen was assigned to the meeting to maintain order, but they were not able to prevent several disturbances. The crowd outside was angry and turbulent.

Petitioner, in his speech, condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation's welfare.

The trial court charged that "breach of the peace" consists of any "misbehavior which violates the public peace and decorum", and that the

"misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."

Petitioner did not take exception to that instruction. But he maintained at all times that the ordinance, as applied to his conduct, violated his right of free speech under the Federal Constitution. The Judgment of conviction was affirmed by the Illinois Appellate Court (332 Ill.App. 17, 74 N.E.2d 45) and by the Illinois Supreme Court. 396 Ill. 41, 71 N.E.2d 2; 400 Ill. 23, 79 N.E.2d 39. The case is here on a petition for certiorari, which we granted because of the importance of the question presented.

The argument here has been focused on the issue of whether the content of petitioner's speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees. See Chaplinsky v. New Hampshire, ; Cantwell v. Connecticut, , . We do not reach that question, for there is a preliminary question that is dispositive of the case.

Page 337 U. S. 4

As we have noted, the statutory words "breach of the peace" were defined in instructions to the jury to include speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance. . . ." That construction of the ordinance is a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance. See Hebert v. Louisiana, , ; Winters v. New York, , .

Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. -572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, , ; Craig v. Harney, , . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas

Page 337 U. S. 5

either by legislatures, courts, or dominant political or community groups.

The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.

The fact that petitioner took no exception to the instruction is immaterial. No exception to the instructions was taken in Stromberg v. California, . But a judgment of conviction based on a general verdict under a state statute was set aside in that case because one part of the statute was unconstitutional. The statute had been challenged as unconstitutional, and the instruction was framed in its language. The Court held that the attack on the statute as a whole was equally an attack on each of its individual parts. Since the verdict was a general one, and did not specify the ground upon which it rested, it could not be sustained. For one part of the statute was unconstitutional, and it could not be determined that the defendant was not convicted under that part.

The principle of that case controls this one. As we have said, the gloss which Illinois placed on the ordinance gives it a meaning and application which are conclusive on us. We need not consider whether as construed it is defective in its entirety. As construed and applied, it at least contains parts that are unconstitutional. The verdict was a general one, and we do not know on this record but what it may rest on the invalid clauses.

The statute, as construed in the charge to the jury, was passed on by the Illinois courts and sustained by them over the objection that, as so read, it violated the Fourteenth Amendment. The fact that the parties did not dispute its construction makes the adjudication no less

Page 337 U. S. 6

ripe for our review, as the Stromberg decision indicates. We can only take the statute as the state courts read it. From our point of view, it is immaterial whether the state law question as to its meaning was controverted or accepted. The pinch of the statute is in its application. It is that question which the petitioner has brought here. To say, therefore, that the question on this phase of the case is whether the trial judge gave a wrong charge is wholly to misconceive the issue.

But it is said that, throughout the appellate proceedings, the Illinois courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting "fighting words." That emphasizes, however, the importance of the rule of the Stromberg case. Petitioner was not convicted under a statute so narrowly construed. For all anyone knows, he was convicted under the parts of the ordinance (as construed) which, for example, make it an offense merely to invite dispute or to bring about a condition of unrest. We cannot avoid that issue by saying that all Illinois did was to measure petitioner's conduct, not the ordinance, against the Constitution. Petitioner raised both points -- that his speech was protected by the Constitution; that the inclusion of his speech within the ordinance was a violation of the Constitution. We would, therefore, strain at technicalities to conclude that the constitutionality of the ordinance, as construed and applied to petitioner, was not before the Illinois courts. The record makes clear that petitioner at all times challenged the constitutionality of the ordinance as construed and applied to him.

*

"All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city . . . shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense."

Municipal Code of Chicago, 1939, § 193-1.

MR. CHIEF JUSTICE VINSON, dissenting.

I dissent. The Court today reverses the Supreme Court of Illinois because it discovers in the record one sentence in the trial court's instructions which permitted

Page 337 U. S. 7

the jury to convict on an unconstitutional basis. The offending sentence had heretofore gone completely undetected. It apparently was not even noticed, much less excepted to, by the petitioner's counsel at the trial. No objection was made to it in the two Illinois appellate tribunals which reviewed the case. Nor was it mentioned in the petition for certiorari or the briefs in this Court. In short, the offending sentence in the charge to the jury was no part of the case until this Court's independent research ferreted it out of a lengthy and somewhat confused record. I think it too plain for argument that a reversal on such a basis does not accord with any principle governing review of state court decisions heretofore announced by this Court. Certainly, Stromberg v. California, (1931), as MR. JUSTICE FRANKFURTER demonstrates, offers no precedent for today's action.

It will not do to say that, because the Illinois appellate courts affirmed the petitioner's conviction in the face of a constitutional attack, they necessarily must have approved the interpretation of the Chicago ordinance contained in the unnoticed instruction. The fact is that the Illinois courts construed the ordinance as punishing only the use of "fighting words." Their opinions plainly show that they affirmed because they thought that the petitioner's speech had been found by the jury to come within that category.* Their action was not, and cannot here be taken to be, an approval of the ordinance "as construed" by the instruction, because the record clearly shows that the case was treated on appeal, both by counsel and by the courts, as if no such instruction existed. This Court can reverse the conviction because of the instruction only if we are to say that every time a state

Page 337 U. S. 8

court affirms a conviction, it necessarily must approve of every unnoticed and unobjected-to error which we may discover in the record. If such is the doctrine of this case, I feel compelled to register my emphatic dissent.

The instruction informed the jury that they could return a verdict of guilty if they found that the petitioner's speech was one which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." If the petitioner's counsel, who carefully made other constitutional objections throughout the proceedings below, had brought any issue here as to the constitutional validity of that instruction, I would agree with the Court's decision. But the record gives me no basis on which to believe that the Illinois courts would not also have so decided if that issue had been presented to them.

* The opinions arc reported at 332 Ill.App. 17, 74 N.E.2d 45, and at 400 Ill. 2.3, 79 N.E.2d 39. See particularly 332 Ill.App. at pp. 23 and 38; 400 Ill. at p. 33.

MR. JUSTICE FRANKFURTER, dissenting.

For the first time in the course of the 130 years in which State prosecutions have come here for review, this Court is today reversing a sentence imposed by a State court

Page 337 U. S. 9

on a ground that was urged neither here nor below and that was explicitly disclaimed on behalf of the petitioner at the bar of this Court.

The impropriety of that part of the charge which is now made the basis of reversal was not raised at the trial, nor before the Appellate Court of Illinois. The fact that counsel for Terminiello wholly ignored it is emphasized by the objections that he did make in relation to other instructions given and not given. On appeal to the Supreme Court of Illinois, counsel still failed to claim as error that which this Court, on its own motion, now finds violative of the Constitution. It was not mentioned by the Illinois Supreme Court in its careful opinion disposing of other claims, and it was not included in the elaborate petition for rehearing in that court. Thus, an objection, not raised by counsel in the Illinois courts, not made the basis of the petition for certiorari here -- not included in the "Questions Presented," nor in the "Reasons Relied On for the Allowance of the Writ" -- and explicitly disavowed at the bar of this Court, is used to upset a conviction which has been sustained by three courts of Illinois.

Reliance on Stromberg v. California, , for what is done today is wholly misplaced. Neither expressly nor by implication has that decision any bearing upon the issue which the Court's opinion in this case raises, namely, whether it is open for this Court to reverse the highest court of a State on a point which was not brought before that court, did not enter into the judgment rendered by that court, and at no stage of the proceedings in this Court was invoked as error by the State court whose reversal is here sought. The Stromberg case presented precisely the opposite situation. In that case, the claim which here prevailed was a ground of unconstitutionality urged before the California court; upon its rejection by that court it was made the basis of appeal

Page 337 U. S. 10

to this Court; it was here urged as the decisive ground for the reversal of the California judgment.

The Stromberg case dealt with a statute which proscribed conduct in a threefold way. The information upon which a verdict of guilty was secured was couched in the threefold terms of the statute, and in that form submitted to the jury. A general verdict followed. It was urged throughout the proceedings, and finally at the bar of this Court, that one of the proscriptions of the statute was invalid under the Fourteenth Amendment. That view was sustained. All that the case holds is that, where the validity of a statute is successfully assailed as to one of three clauses of a statute and all three clauses were submitted to the jury, the general verdict has an infirmity, because it cannot be assumed that the jury convicted on the valid portions of the statute, and not on the invalid. There was no question in that case of searching the record for an alleged error that at no time was urged against the State judgment brought here for review.

In the Stromberg case, an error that was properly urged was sustained. In this case, a claim that was not urged but was disavowed is transmuted into a claim denied.

Only the uninformed will deride as a merely technical point objection to what the Court is doing in this case. The matter touches the very basis of this Court's authority in reviewing the judgments of State courts. We have no authority to meddle with such a judgment unless some claim under the Constitution or the laws of the United States has been made before the State court whose judgment we are reviewing and unless the claim has been denied by that court.* How could there have been a

Page 337 U. S. 11

denial of a federal claim by the Illinois courts, i.e., that the trial judge offended the Constitution of the United States in what he told the jury, when no such claim was made? The relation of the United States and the courts of the United States to the States and the courts of the States is a very delicate matter. It is too delicate to permit silence when a judgment of a State court is reversed in disregard of the duty of this Court to leave untouched an adjudication of a State unless that adjudication is based upon a claim of a federal right which the State has had an opportunity to meet and to recognize. If such a federal claim was neither before the State court nor presented to this Court, this Court unwarrantably strays from its province in looking through the record to find some federal claim that might have been brought to the attention of the State court, and, if so brought, fronted, and that might have been, but was not, urged here. This is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency.

Freedom of speech undoubtedly means freedom to express views that challenge deep-seated, sacred beliefs, and to utter sentiments that may provoke resentment. But those indulging in such stuff as that to which this proceeding gave rise are hardly so deserving as to lead this Court to single them out as beneficiaries of the first

Page 337 U. S. 12

departure from the restrictions that bind this Court in reviewing judgments of State courts. Especially odd is it to bestow such favor not for the sake of life or liberty, but to save a small amount of property -- $100, the amount of the fine imposed upon the petitioner in a proceeding which is civil, not criminal, under the laws of Illinois, and thus subject only to limited review. City of Chicago v. Terminiello, 400 Ill. 23, 29, 79 N.E.2d 39, 43. This Court has recognized that fines of this nature are not within provisions of the Constitution governing federal criminal prosecutions. See Hepner v. United States, .

The importance of freedom of speech, of course, cannot be measured by dollars and cents. A great principle may be at stake, as in the Case of the Ship Money, though the issue arise over the payment of a few shillings' tax. Were the Court to sustain the claim urged throughout these proceedings, in Illinois and here, namely, that a law is unconstitutional when it forbids Terminiello's harangue in the circumstances of its utterance, it would be immaterial that only $100 is involved. But to inject an error into the record in order to avoid the issue on which the case was brought here -- for certainly relief from the payment of a fine of $100 could not alone have induced this Court to excogitate a defect in the judgment which counsel thoughtfully rejected and which three State courts did not consider -- hardly raises the objection to the dignity of such a principle. If the Court refrained from taking phrases out of their environment and finding in them a self-generated objection, it could not be deemed to have approved of them even as abstract propositions.

On the merits of the issue reached by the Court, I share MR. JUSTICE JACKSON's views. For I assume that the Court does not mean to reject, except merely for purposes of this case, the basic principle that guides scrutiny of

Page 337 U. S. 13

a charge on appeal. I assume, that is, that a charge is not to be deemed a bit of abstraction in a non-existing world; the function which a charge serves is to give practical guidance to a jury in passing on the case that was unfolded before it -- the particular circumstances in their particular setting.

MR. JUSTICE JACKSON and MR. JUSTICE BURTON join this dissent.

*

"Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied, Murdock v. City of Memphis, 20 Wall. 590; Haire v. Rice, , ; but to the particular claims duly made below, and denied. Seaboard Air Line Ry. v. Duvall, , -488. We lack here the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court. Wiborg v. United States, , -660; Clyatt v. United States, , -222. This is a writ of error to a state court. Because we may not enquire into the errors now alleged, I concur in affirming the judgment of the state court."

MR. JUSTICE JACKSON, dissenting.

The Court reverses this conviction by reiterating generalized approbations of freedom of speech with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by avoidance of more than passing reference to the circumstances of Terminiello's speech and judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore.

But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot, and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two. When the trial judge instructed the jury that it might find Terminiello guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited dispute, brought about unrest, created a disturbance or molested peace and quiet by arousing alarm, he was not speaking of these as harmless or abstract conditions. He was addressing his words to the concrete behavior and specific consequences disclosed by the evidence. He was saying to the jury, in effect, that, if this particular speech added fuel to the situation already so inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of peace. When the light of the evidence not recited by the Court is thrown upon the Court's opinion, it discloses that underneath a little issue of

Page 337 U. S. 14

Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other, and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order.

An old proverb warns us to take heed lest we "walk into a well from looking at the stars." To show why I think the Court is in some danger of doing just that, I must bring these deliberations down to earth by a long recital of facts.

Terminiello, advertised as a Catholic Priest but revealed at the trial to be under suspension by his Bishop, was brought to Chicago from Birmingham, Alabama, to address a gathering that assembled in response to a call signed by Gerald L. K. Smith, which, among other things, said:

". . . The same people who hate Father Coughlin hate Father Terminiello . They have persecuted him, hounded him, threatened him, but he has remained unaffected by their anti-Christian campaign against him. You will hear all sorts of reports concerning Father Terminiello. But remember that he is a Priest in good standing, and a fearless lover of Christ and America."

The jury may have considered that this call attempted to capitalize the hatreds this man had stirred and foreshadowed, if it did not intend to invite, the kind of demonstration that followed.

Terminiello's own testimony shows the conditions under which he spoke. So far as material, it follows:

". . . We got there [the meeting place] approximately fifteen or twenty minutes past eight. The car stopped at the front entrance. There was a

Page 337 U. S. 15

crowd of three or four hundred congregated there shouting and cursing and picketing. . . ."

"When we got there, the pickets were not marching; they were body to body, and covered the sidewalk completely, some on the steps, so that we had to form a flying wedge to get through. Police escorted us to the building, and I noticed four or five others there."

"They called us 'God damned Fascists, Nazis, ought to hang the so and sos.' When I entered the building, I heard the howls of the people outside. . . . There were four or five plain clothes officers standing at the entrance to the stage, and three or four at the entrance to the back door."

"The officers threatened that, if they broke the door again, they would arrest them, and every time they opened the door a little to look out, something was thrown at the officers, including ice-picks and rocks."

"A number of times, the door was broken, was partly broken through. There were doors open this way, and they partly opened, and the officers looked out two or three times, and each time, ice-picks, stones and bottles were thrown at the police at the door. I took my place on the stage; before this, I was about ten or fifteen minutes in the body of the hall."

"I saw a number of windows broken by stones or missiles. I saw the back door being forced open, pushed open."

"The front door was broken partly open after the doors were closed. There were about seven people seated on the stage. Smith opened the meeting with prayer, the Pledge of Allegiance to the Flag and singing of America. There were other speakers who spoke before me, and before I spoke, I heard things happening in the hall and coming from the outside. "

Page 337 U. S. 16

"I saw rocks being thrown through windows, and that continued throughout at least the first half of the meeting, probably longer, and again attempts were made to force the front door, rather, the front door was forced partly. The howling continued on the outside, cursing could be heard audibly in the hall at times. Police were rushing in and out of the front door, protecting the front door, and there was a general commotion, all kinds of noises and violence -- all from the outside."

"Between the time the first speaker spoke and I spoke, stones and bricks were thrown in all the time. I started to speak about 35 or 40 minutes after the meeting started, a little later than nine o'clock. . . ."

The court below, in addition to this recital, heard other evidence that the crowd reached an estimated number of 1,500. Picket lines obstructed and interfered with access to the building. The crowd constituted "a surging, howling mob hurling epithets" at those who would enter, and "tried to tear their clothes off." One young woman's coat was torn off, and she had to be assisted into the meeting by policemen. Those inside the hall could hear the loud noises and hear those on the outside yell, "Fascists," "Hitlers" and curse words like "damn Fascists." Bricks were thrown through the windowpanes before and during the speaking. About 28 windows were broken. The street was black with people on both sides for at least a block either way; bottles, stink bombs and brickbats were thrown. Police were unable to control the mob, which kept breaking the windows at the meeting hall, drowning out the speaker's voice at times, and breaking in through the back door of the auditorium. About 17 of the group outside were arrested by the police.

Knowing of this environment, Terminiello made a long speech, from the stenographic record of which I omit

Page 337 U. S. 17

relatively innocuous passages and add emphasis to what seems especially provocative:

"Father Terminiello: Now, I am going to whisper my greetings to you, Fellow Christians. I will interpret it. I said, 'Fellow Christians,' and I suppose there are some of the scum got in by mistake, so I want to tell a story about the scum: "

". . . And nothing I could say tonight could begin to express the contempt I have for the slimy scum that got in by mistake."

". . . The subject I want to talk to you tonight about is the attempt that is going on right outside this hall tonight, the attempt that is going on to destroy America by revolution. . . ."

"My friends, it is no longer true that it can't happen here. It is happening here, and it only depends upon you, good people, who are here tonight, depends upon all of us together, as Mr. Smith said. The tide is changing, and if you and I turn and run from that tide, we will all be drowned in this tidal wave of Communism which is going over the world."

". . . I am not going to talk to you about the menace of Communism, which is already accomplished, in Russia, where from eight to fifteen million people were murdered in cold blood by their own countrymen, and millions more through Eastern Europe at the close of the war are being murdered by these murderous Russians, hurt, being raped and sent into slavery. That is what they want for you, that howling mob outside."

"I know I was told one time that my winter quarters were ready for me in Siberia. I was told that. Now, I am talking about the fifty-seven varieties that we have in America, and we have fifty-seven varieties of pinks and reds and pastel shades in this country, and all of it can be traced back to the

Page 337 U. S. 18

twelve years we spent under the New Deal, because that was the build-up for what is going on in the world today."

"Now, Russia promised us we would ga [ sic] back to the official newspaper of Russia. Primarily, it was back about 1929. They quoted the words of George E. Dimitroff, who at that time was the Executive Secretary of the Communist International. I only quote you this one passage. I could quote thousands of paragraphs for you. Let me quote you: 'The worldwide nature of our program is not mere talk, but an all embracing blood-soaked reality.' That is what they want for us, a blood-soaked reality, but it was promised to us by the crystal gazers in Washington, and you know what I mean by the 'crystal gazers,' I presume."

"First of all, we had Queen Eleanor. Mr. Smith said, 'Queen Eleanor is now one of the world's communists.' She is one who said this -- imagine, coming from the spouse of the former President of the United States for twelve long years -- this is what she said: 'The war is but a step in the revolution. The war is but one step in the revolution, and we know who started the war.'"

"Then we have Henry Adolph Wallace, the sixty million job magician. You know we only need fifty-four million jobs in America, and everybody would be working. He wants sixty million jobs, because some of the bureaucrats want two jobs apiece. Here he is, what he says about revolution: 'We are in for a profound revolution. Those of us who realize the inevitableness of the revolution, and are anxious that it be gradual and bloodless instead of somewhat bloody. Of course, if necessary, we will have it more bloody.' "

Page 337 U. S. 19

"And then Chief Justice Stone had this to say: 'A way has been found for the effective suppression of speeches and press and religion, despite constitutional guarantee,' -- from the Chief Justice, from the Chief Justice of the United States."

"Now, my friends, they are planning another ruse, and if it ever happens to this cou-try [ sic], God help America. They are going to try to put into Mr. Edgar Hoover's position a man by the name of George Swarzwald. I think even those who were uneducated on so-called sedition charges, that the majority of the individuals in this department, that Christ-like men and women who realize today what is going on in this country, men who are in this audience today, who want to know the names of those people, before they are outside, they want to know the names if any. Did you hear any tonight that you recognize? Most of them probably are imported. They are imported from Russia, certainly. If you know the names, please send them to me immediately. . . ."

". . . Didn't you ever read the Morgenthau plan for the starvation of little babies and pregnant women in Germany? Whatever could a child that is born have to do with Hitler or anyone else at the beginning of the war? Why should every child in Germany today not live to be more than two or three months of age? Because Morgenthau wants it that way, and so did F.D.R. . . . You will know who is behind it when I tell you the story of a doctor in Akron, Ohio. He boasted to a friend of mine within the last few days, while he was in the service of this country as a doctor, he and others of his kind made it a practice -- now, this was not only one man -- made it a practice to amputate the limbs of every German they came in contact with whenever

Page 337 U. S. 20

they could get away with it, so, that they could never carry a gun. Imagine men of that caliber, sworn to serve this beautiful country of ours, why should we tolerate them?"

"My friends, this moment someone reminded me of the plan to sterilize them. The nurses, they tell me are going to inject diseases in them, syphilis and other diseases in every one that came there all of one race, all non-Christians. . . ."

"Now, we are going to get the threats of the people of Argentine, the people of Spain. We have now declared, according to our officials, to have declared Franco to have taken the place of Hitler. Franco was the savior of what was left of Europe."

"Now, let me say, I am going to talk about -- I almost said, about the Jews. Of course, I would not want to say that. However, I am going to talk about some Jews. I hope that -- I am a Christian minister. We must take a Christian attitude. I don't want you to go from this hall with hatred in your heart for any person, for no person. . . ."

"Now, this danger which we face -- let us call them Zionist Jews if you will, let's call them atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them. You remember the Apostles when they went into the upper room after the death of the Master, they went in there, after locking the doors; they closed the windows. (At this time there was a very loud noise as if something was being thrown into the building.)"

"Don't be disturbed. That happened, by the way, while Mr. Gerald Smith was saying 'Our Father who art in heaven;' (just then, a rock went through the window.) Do you wonder they were persecuted in other countries in the world? . . . "

Page 337 U. S. 21

" You know I have always made a study of the psychology, sociology of mob reaction. It is exemplified out there. Remember there has to be a leader to that mob. He is not out there. He is probably across the street, looking out the window. There must be certain things, money, other things, in order to have successful mob action; there must be rhythm. There must be some to beat a cadence. Those mobs are chanting; that is the caveman's chant. They were trained to do it. They were trained this afternoon. They are being led; there will be violence."

"That is why I say to you, men, don't you do it. Walk out of here dignified. The police will protect you. Put the women on the inside, where there will be no hurt to them. Just walk; don't stop and argue. . . . They want to picket our meetings. They don't want us to picket their meetings. It is the same kind of tolerance, if we said there was a bedbug in bed, 'We don't care for you,' or if we looked under the bed and found a snake and said, 'I am going to be tolerant and leave the snake there.' We will not be tolerant of that mob out there. We are not going to be tolerant any longer."

"We are strong enough. We are not going to be tolerant of their smears any longer. We are going to stand up and dare them to smear us. . . ."

"So, my friends, since we spent much time tonight trying to quiet the howling mob, I am going to bring my thoughts to a conclusion, and the conclusion is this. We must all be like the Apostles before the coming of the Holy Ghost. We must not lock ourselves in an upper room for fear of the Jews. I speak of the Communistic Zionistic Jew, and those are not American Jews. We don't want them here; we want them to go back where they came from."

Page 337 U. S. 22

"

"Mr. Smith: I would like to ask that Miss Purcell would please go back to the front of the building and contact the police officer in charge of the detail. We are going to adjourn this meeting if and when Miss Purcell comes back and reports to me that the one in charge of the detail believes it is safe for us to go out on the street. I am sure it is. Sit still. We are not going to have anybody move. If there are any chiselers that want to go, we are going to take up an offering for Father Terminiello."

"(There was further discussion to stimulate this offering which was not reported.)"

Such was the speech. Evidence showed that it stirred the audience not only to cheer and applaud but to expressions of immediate anger, unrest and alarm. One called the speaker a "God damned liar," and was taken out by the police. Another said that "Jews, niggers and Catholics would have to be gotten rid of." One response was, "Yes, the Jews are all killers, murderers. If we don't kill them first, they will kill us." The anti-Jewish stories elicited exclamations of "Oh," and "Isn't that terrible," and shouts of "Yes, send the Jews back to Russia," "Kill the Jews," "Dirty kikes," and much more of ugly tenor. This is the specific and concrete kind of anger, unrest and alarm, coupled with that of the mob outside, that the trial court charged the jury might find to be a breach of peace induced by Terminiello. It is difficult to believe that this Court is speaking of the same occasion, but it is the only one involved in this litigation.

Terminiello, of course, disclaims being a fascist. Doubtless many of the indoor audience were not consciously such. His speech, however, followed, with fidelity that is more than coincidental, the pattern of European fascist leaders.

Page 337 U. S. 23

The street mob, on the other hand, included some who deny being communists, but Terminiello testified and offered to prove that the demonstration was communist-organized and communist-led. He offered literature of left-wing organizations calling members to meet and "mobilize" for instruction as pickets and exhorting followers: "All out to fight Fascist Smith."

As this case declares a nationwide rule that disables local and state authorities from punishing conduct which produces conflicts of this kind, it is unrealistic not to take account of the nature, methods and objectives of the forces involved. This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a worldwide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe. Increasingly, American cities have to cope with it. One faction organizes a mass meeting, the other organizes pickets to harass it; each organizes squads to counteract the other's pickets; parade is met with counter-parade. Each of these mass demonstrations has the potentiality, and more than a few, the purpose, of disorder and violence. This technique appeals not to reason, but to fears and mob spirit; each is a show of force designed to bully adversaries and to overawe the indifferent. We need not resort to speculation as to the purposes for which these tactics are calculated, nor as to their consequences. Recent European history demonstrates both.

Hitler summed up the strategy of the mass demonstration as used by both fascism and communism:

"We should not work in secret conventicles, but in mighty mass demonstrations, and it is not by dagger and poison or pistol that the road can be cleared for the movement, but by the conquest of the streets. We must teach the Marxists

Page 337 U. S. 24

that the future master of the streets is National Socialism, just as it will some day be the master of the state."

(Emphasis supplied.) 1 Nazi Conspiracy and Aggression (GPO, 1946) 204, 2 id. 140, Docs. 2760-PS, 404-PS, from " Mein Kampf." First laughed at as an extravagant figure of speech, the battle for the streets became a tragic reality when an organized Sturmabteilung began to give practical effect to its slogan that "possession of the streets is the key to power in the state." Ibid. also Doc. 2168-PS.

The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements of all shades of opinion, but who, whatever their differences, submit them to free elections which register the results of their free discussion. The fascist and communist groups, on the contrary, resort to these terror tactics to confuse, bully and discredit those freely chosen governments. Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence, and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent, and begin to think the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: "Christian Nationalism or World Communism -- Which?"

This drive by totalitarian groups to undermine the prestige and effectiveness of local democratic governments is advanced whenever either of them can win from this Court a ruling which paralyzes the power of these officials. This is such a case. The group of which Terminiello is a part claims that his behavior, because it involved a speech, is above the reach of local authorities.

Page 337 U. S. 25

If the mild action those authorities have taken is forbidden, it is plain that, hereafter, there is nothing effective left that they can do. If they can do nothing as to him, they are equally powerless as to rival totalitarian groups. Terminiello's victory today certainly fulfills the most extravagant hopes of both right and left totalitarian groups, who want nothing so much as to paralyze and discredit the only democratic authority that can curb them in their battle for the streets.

I am unable to see that the local authorities have transgressed the Federal Constitution. Illinois imposed no prior censorship or suppression upon Terminiello. On the contrary, its sufferance and protection was all that enabled him to speak. It does not appear that the motive in punishing him is to silence the ideology he expressed as offensive to the State's policy or as untrue, or has any purpose of controlling his thought or its peaceful communication to others. There is no claim that the proceedings against Terminiello are designed to discriminate against him or the faction he represents or the ideas that he bespeaks. There is no indication that the charge against him is a mere pretext to give the semblance of legality to a covert effort to silence him or to prevent his followers or the public from hearing any truth that is in him.

A trial court and jury has found only that, in the context of violence and disorder in which it was made, this speech was a provocation to immediate breach of the peace, and therefore cannot claim constitutional immunity from punishment. Under the Constitution as it has been understood and applied, at least until most recently, the State was within its powers in taking this action.

Rioting is a substantive evil which I take it no one will deny that the State and the City have the right and the duty to prevent and punish. Where an offense is

Page 337 U. S. 26

induced by speech, the Court has laid down and often reiterated a test of the power of the authorities to deal with the speaking as also an offense.

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring. about the substantive evils that Congress [or the State or City] has a right to prevent."

"There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed

Page 337 U. S. 27

that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

"Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument."

In the latter case Mr. Justice Roberts, for a unanimous Court, also said:

"The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious."

How this present decision, denying state power to punish civilly one who precipitated a public riot involving hundreds of fanatic fighters in a most violent melee, can be squared with those unanimous statements of law is incomprehensible to me. And the Court recently cited these two statements as indicating that

"The essential rights of the First Amendment, in some instances, are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. "

Page 337 U. S. 28

However, these wholesome principles are abandoned today, and in their place is substituted a dogma of absolute freedom for irresponsible and provocative utterance which almost completely sterilizes the power of local authorities to keep the peace as against this kind of tactics.

Before giving the First and Fourteenth Amendments to the Constitution this effect, we should recall that our application of the First Amendment to Illinois rests entirely on authority which this Court has voted to itself. The relevant parts of the First Amendment, with emphasis supplied, reads: " Congress shall make no law . . . abridging the freedom of speech." This restrains no authority except Congress. Read as literally as some would do, it restrains Congress in terms so absolute that no legislation would be valid if it touched free speech, no matter how obscene, treasonable, defamatory, inciting or provoking. If it seems strange that no express qualifications were inserted in the Amendment, the answer may be that limitations were thought to be implicit in the definition of "freedom of speech/" as then understood. Or it may have been thought unnecessary to delegate to Congress any power over abuses of free speech. The Federal Government was then a new and experimental authority, remote from the people, and it was supposed to deal with a limited class of national problems. Inasmuch as any breaches of peace from abuse of free speech traditionally were punishable by state governments, it was needless to reserve that power in a provision drafted to exclude only Congress from such a field of lawmaking.

The Fourteenth Amendment forbade states to deny the citizen "due process of law." But its terms gave no notice to the people that its adoption would strip their local governments of power to deal with such problems of local

Page 337 U. S. 29

peace and order as we have here. Nor was it hinted by this Court for over half a century that the Amendment might have any such effect. In 1922, with concurrence of the most liberty-alert Justices of all times -- Holmes and Brandeis -- this Court declared flatly that the Constitution does not limit the power of the state over free speech. Prudential Insurance Co. v. Cheek, , . In later years, the Court shifted its dogma, and decreed that the Constitution does this very thing, and that state power is bound by the same limitation as Congress. Gitlow v. New York, . I have no quarrel with this history. See Board of Education v. Barnette, . I recite the method by which the right to limit the state has been derived only from this Court's own assumption of the power, with never a submission of legislation or amendment into which the people could write any qualification to prevent abuse of this liberty, as bearing upon the restraint I consider as becoming in exercise of self-given and unappealable power.

It is significant that provisions adopted by the people with awareness that they applied to their own states have universally contained qualifying terms. The Constitution of Illinois is representative of the provisions put in nearly all state constitutions, and reads (Art. II, § 4): "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty." (Emphasis added.) That is what I think is meant by the cryptic phrase "freedom of speech," as used in the Federal Compact, and that is the rule I think we should apply to the states.

This absence from the Constitution of any expressed power to deal with abuse of freedom of speech has enabled the Court to soar aloof from any consideration of the abuses which create problems for the states and to indulge in denials of local authority, some of which seem to me improvident in the light of functions which local governments

Page 337 U. S. 30

must be relied on to perform for our free society. Quite apart from any other merits or defects, recent decisions have almost completely immunized this battle for the streets from any form of control.

Streets and parks maintained by the public cannot legally be denied to groups "for communication of ideas." Hague v. CIO, ; Jamison v. Texas, . Cities may not protect their streets from activities which the law has always regarded subject to control, as nuisances. Lovell v. Griffin, ; Schneider v. State, . Cities may not protect the streets or even homes of their inhabitants from the aggressions of organized bands operating in large numbers. Douglas v. Jeannette, . As in this case, the facts are set forth fully only in the dissent, p. . See also Martin v. Struthers, . Neither a private party nor a public authority can invoke otherwise valid state laws against trespass to exclude from their property groups bent on disseminating propaganda. Marsh v. Alabama, ; Tucker v. Texas, . Picketing is largely immunized from control on the ground that it is free speech, Thornhill v. Alabama, , and police may not regulate sound trucks and loud-speakers, Saia v. New York, , though the Court finds them an evil that may be prohibited altogether. Kovacs v. Cooper, . And one-third of the Court has gone further, and declared that a position

"that the state may prevent any conduct which induces people to violate the law, or any advocacy of unlawful activity, cannot be squared with the First Amendment . . . ,"

Page 337 U. S. 31

of the streets and a dramatic encouragement of those who would use them in a battle of ideologies.

I do not think we should carry this handicap further, as we do today, but should adhere to the principles heretofore announced to safeguard our liberties against abuse, as well as against invasion. It should not be necessary to recall these elementary principles, but it has been a long time since some of them were even mentioned in this Court's writing on the subject, and results indicate they may have been overlooked.

"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. . . ."

This case demonstrates also that this Court's service to free speech is essentially negative, and can consist only of reviewing actions by local magistrates. But if free speech is to be a practical reality, affirmative and immediate protection is required, and it can come only from nonjudicial sources. It depends on local police, maintained by law-abiding taxpayers, and who, regardless of their own feelings, risk themselves to maintain supremacy of law. Terminiello's theoretical right to speak free from interference would have no reality if Chicago should withdraw its officers to some other section of the city, or if the men assigned to the task should look the other

Page 337 U. S. 32

way when the crowd threatens Terminiello. Can society be expected to keep these men at Terminiello's service if it has nothing to say of his behavior which may force them into dangerous action?

No one will disagree that the fundamental, permanent and overriding policy of police and courts should be to permit and encourage utmost freedom of utterance. It is the legal right of any American citizen to advocate peaceful adoption of fascism or communism, socialism or capitalism. He may go far in expressing sentiments, whether pro-Semitic or anti-Semitic, pro-Negro or anti-Negro, pro-Catholic or anti-Catholic. He is legally free to argue for some anti-American system of government to supersede by constitutional methods the one we have. It is our philosophy that the course of government should be controlled by a consensus of the governed. This process of reaching intelligent popular decisions requires free discussion. Hence, we should tolerate no law or custom of censorship or suppression.

But we must bear in mind also that no serious outbreak of mob violence, race rioting, lynching or public disorder is likely to get going without help of some speechmaking to some mass of people. A street may be filled with men and women, and the crowd still not be a mob. Unity of purpose, passion and hatred, which merges the many minds of a crowd into the mindlessness of a mob, almost invariably is supplied by speeches. It is naive, or worse, to teach that oratory with this object or effect is a service to liberty. No mob has ever protected any liberty, even its own, but, if not put down, it always winds up in an orgy of lawlessness which respects no liberties.

In considering abuse of freedom by provocative utterances, it is necessary to observe that the law is more tolerant of discussion than are most individuals or communities. Law is so indifferent to subjects of talk that I think of none that it should close to discussion. Religious,

Page 337 U. S. 33

social and political topics that, in other times or countries have not been open to lawful debate may be freely discussed here.

Because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. So it happens that, while peaceful advocacy of communism or fascism is tolerated by the law, both of these doctrines arouse passionate reactions. A great number of people do not agree that introduction to America of communism or fascism is even debatable. Hence, many speeches, such as that of Terminiello, may be legally permissible, but may nevertheless, in some surroundings, be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society.

Determination of such an issue involves a heavy responsibility. Courts must beware lest they become mere organs of popular intolerance. Not every show of opposition can justify treating a speech as a breach of peace. Neither speakers nor courts are obliged always and in all circumstances to yield to prevailing opinion and feeling. As a people grow in capacity for civilization and liberty, their tolerance will grow, and they will endure, if not welcome, discussion even on topics as to which they are committed. They regard convictions as tentative, and know that time and events will make their own terms with theories, by whomever and by whatever majorities they are held, and many will be proved wrong. But, on our way to this idealistic state of tolerance, the police have to deal with men as they are. The crowd mind is never tolerant of any idea which does not conform to its herd opinion. It does not want a tolerant effort at meeting of minds. It does not know the futility of trying to mob an idea. Released from the sense of

Page 337 U. S. 34

personal responsibility that would restrain even the worst individuals in it if alone and brave with the courage of numbers, both radical and reactionary mobs endanger liberty, as well as order. The authorities must control them, and they are entitled to place some checks upon those whose behavior or speech calls such mobs into being. When the right of society to freedom from probable violence should prevail over the right of an individual to defy opposing opinion presents a problem that always tests wisdom, and often calls for immediate and vigorous action to preserve public order and safety.

I do not think that the Constitution of the United States denies to the states and the municipalities power to solve that problem in the light of local conditions, at least so long as danger to public order is not invoked in bad faith, as a cover for censorship or suppression. The preamble declares domestic tranquility, as well as liberty, to be an object in founding a Federal Government, and I do not think the Forefathers were naive in believing both can be fostered by the law.

Certain practical reasons reinforce the legal view that cities and states should be sustained in the power to keep their streets from becoming the battleground for these hostile ideologies to the destruction and detriment of public order. There is no other power that can do it. Theirs are the only police that are on the spot. The Federal Government has no police force. The Federal Bureau of Investigation is, and should remain, not a police, but an investigative, service. To date, the only federal agency for preserving and restoring order when local authority fails has been the Army. And when the military steps in, the court takes a less liberal view of the rights of the individual, and sustains most arbitrary exercises of military power. See Korematsu v. United States, . Every failure of local authority to deal with riot problems results in a demand for the

Page 337 U. S. 35

establishment of a federal police or intervention by federal authority. In my opinion, locally established and controlled police can never develop into the menace to general civil liberties that is inherent in a federal police.

The ways in which mob violence may be worked up are subtle and various. Rarely will a speaker directly urge a crowd to lay hands on a victim or class of victims. An effective and safer way is to incite mob action while pretending to deplore it, after the classic example of Antony, and this was not lost on Terminiello. And whether one may be the cause of mob violence by his own personification or advocacy of ideas which a crowd already fears and hates is not solved merely by going through a transcript of the speech to pick out "fighting words." The most insulting words can be neutralized if the speaker will smile when he says them, but a belligerent personality and an aggressive manner may kindle a fight without use of words that, in cold type shock us. True judgment will be aided by observation of the individual defendant, as was possible for this jury and trial court, but impossible for us.

There are many appeals these days to liberty, often by those who are working for an opportunity to taunt democracy with its stupidity in furnishing them the weapons to destroy it, as did Goebbels when he said:

"When democracy granted democratic methods for us in the times of opposition, this [Nazi seizure of power] was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power, and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in the times of [our] opposition."

1 Nazi Conspiracy and Aggression (GPO, 1946) 202, Doc. 2412-PS.

Page 337 U. S. 36

Invocation of constitutional liberties as part of the strategy for overthrowing them presents a dilemma to a free people which may not be soluble by constitutional logic alone.

But I would not be understood as suggesting that the United States can or should meet this dilemma by suppression of free, open and public speaking on the part of any group or ideology. Suppression has never been a successful permanent policy; any surface serenity that it creates is a false security, while conspiratorial forces go underground. My confidence in American institutions and in the sound sense of the American people is such that if, with a stroke of the pen, I could silence every fascist and communist speaker, I would not do it. For I agree with Woodrow Wilson, who said:

"I have always been among those who believed that the greatest freedom of speech was the greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if you let him speak, the secret is out, and the world knows that he is a fool. So it is by the exposure of folly that it is defeated, not by the seclusion of folly, and, in this free air of free speech, men get into that sort of communication with one another which constitutes the basis of all common achievement."

Address at the Institute of France, Paris, May 10, 1919. 2 Selected Literary and Political Papers and Addresses of Woodrow Wilson (1926) 333.

But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In

Page 337 U. S. 37

the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty, and that the factions engaged in this battle are not interested permanently in either. What would it matter to Terminiello if the police batter up some communists or, on the other hand, if the communists batter up some policemen? Either result makes grist for his mill; either would help promote hysteria and the demand for strong-arm methods in dealing with his adversaries. And what, on the other hand, have the communist agitators to lose from a battle with the police?

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds, and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

I would affirm the conviction.

MR. JUSTICE BURTON joins in this opinion.

# data[].attributes.attachment_link.title
Terminiello v. Chicago, 337 U.S. 1 (1949)

# data[].attributes.attachment_link.description
Terminiello v. Chicago, 337 U.S. 1 (1949) Terminiello v. Chicago No. 272 Argued February 1, 1949 Decided May 16, 1949 337 U.S. 1 CERTIORARI TO THE SUPREME COURT OF ILLINOIS In a meeting which attracted considerable public attention, petitioner addressed a large audience in an auditorium outside of which was an angry and turbulent crowd protesting against the meeting.

# data[].attributes.headline
Controversial Speakers and Their Security Costs 

# data[].attributes.subject
Controversial Speakers and Their Security Costs 

# data[].attributes.body
https://www.forbes.com/sites/carolinesimon/2017/11/20/free-speech-isnt-free-its-costing-college-campuses-millions/?sh=50fac9b51ee7

# data[].attributes.attachment_link.readable_text
When Charles Murray or Milo Yiannopoulos visit a college campus, administrators don't just worry about the effect that inflammatory speech might have on their students. They aren't only concerned about being swept up in the higher education free speech debate, or playing host to a scandal that could taint their school's reputation for months.

There's also the cost - which can climb into the millions of dollars.

Colleges, especially public colleges, often shell out enormous amounts of money to provide additional layers of security when controversial speakers visit. If schools are lucky, contentious events will go smoothly. If they aren't, there could be violent protests, injuries, campus damage and weeks of negative press coverage.

University of California at Berkeley, a historic flashpoint for the free speech debate rooted back to the 1960s, has spent at least $2.5 million on security surrounding controversial speakers since February, says Dan Mogulof, the school's assistant vice chancellor for public affairs.

That's $200,000 for Yiannopoulos in February, $600,000 for Ann Coulter (whose appearance was ultimately cancelled by the sponsoring student groups), and at least $600,000 for conservative commentator Ben Shapiro in September. Yiannopoulos' latest appearance, part of Berkeley's "Free Speech Week,"will cost upwards of a $1 million, Mogulof estimates.

The University California system even chipped in, covering at least $300,000 of the costs associated with Free Speech Week.

At Berkeley, preparing for a speaker event is a serious undertaking - the university police department painstakingly gathers intelligence before an event, then makes recommendations to the administration for what kind of security might be necessary. Minor considerations - like whether the event is scheduled for daytime or evening, and how many exits the venue has - play a key role in shaping the security plan.

"Universities like Berkeley - public universities, particularly with the demographics that we have and the kind of campus climates we foster - represent for many people on a certain part of the political spectrum everything that's wrong with the country," Mogulof says. "You spring that all together, and you're going to get a lot of attention. And a lot of what these folks want more than anything is attention."

Berkeley is not alone in its struggle to handle visits from controversial speakers. At Middlebury College, 74 students were disciplined for disrupting a speaker event involving well-known sociologist Charles Murray; at Auburn University, three people were arrested after white nationalist Richard Spencer spoke in defiance of the school's attempts to cancel his appearance.

And in October, Spencer's appearance at the University of Florida sparked widespread protests and required a massive police presence. Janine Smith, the school's assistant vice president for public affairs, said there were more police on campus for Spencer's visit than at any other time in the school's history.

The security plan included police from over 40 different agencies and equipment ranging from physical barricades to special cameras and computer technology. Smith estimated the final cost for Spencer's visit at around $600,000.

In the end, the university avoided the Charlottesville-esque violence it had been dreading, though there were a handful of minor injuries and arrests. The University of Florida is accustomed to handling enormous crowds at football games, Smith said, but Spencer's visit posed rather unique challenges.

"What's different in this particular case was the violent component and the speech that is just totally against everything that the University of Florida stands for, so we had affected populations - our Jewish students, our black students - who were particularly targeted," Smith says. "The free speech part of it was not as hard as the security piece. We're just not used to having to put 600,000 into securing an event like that."

For public schools like UC-Berkeley and UF, it's considerably harder to evade speaker controversies because their public status doesn't allow them to keep speakers off their campuses. Not only must they host speakers like Spencer - they're required to cover the costs as well.

In the 1991 case Forsyth County, Georgia v. The Nationalist Movement, the Supreme Court limited the ability of local governments to charge fees to private groups using public spaces, ruling that allowing local governments to set varying fees for different events violated the First Amendment. That restriction applies to public universities, too.

"The cost of providing safety to unpopular speakers can't be passed onto that unpopular speaker because that amounts to a heckler's veto - that allows people to shut down speech they don't agree with," says Jeffrey Nolan, a lawyer who specializes in legal issues surrounding universities and has worked with Middlebury College.

Though private universities often have free expression policies that try to cover as much speech as possible, they don't face the same standard. Especially if they're small, rural or financially strapped, they may choose not to allow a speaker to visit if the security costs would be too high.

Public schools, Nolan said, can avoid controversy by releasing statements before contentious visits that simultaneously condemn the speaker's views and indicate a commitment to free speech, rather than simply defending free speech in the aftermath. Otherwise, preparation is they key.

"If you're going to host the event...you really do need to be prepared for what it might turn into and do your very best to spend the money on the security and do some intelligence gathering beforehand, so you have done the optimal level of inquiry about what is likely to happen," Nolan said.

Many schools, through a combination of preparation and luck, have succeeded in making such visits go smoothly. When Murray visited Notre Dame University, students protested peacefully, but the school managed to avoid violence or serious disruption.

Notre Dame Vice President for Public Affairs and Communications Paul Browne, who previously worked for the New York Police department, attributed the success preparation and student civility.

He also noted that Notre Dame wasn't visited by black-masked anarchists who often come to speaker events from outside the community to protest - such individuals were there when Murray spoke at Middlebury, and they've showed up to UC-Berkeley multiple times.

Notre Dame had prepared for the possibility of outside protesters, and would have brought in additional police if necessary - unlike UC-Berkeley, Notre Dame is private and could have forced them out if necessary. But, as things turned out, they didn't need to hire additional officers for the event or spend additional money to keep things under control.

"It didn't take a lot of manpower or police presence; it just took some thinking ahead of time, and again, I think a commitment of people of good faith - both who wanted to hear Murray speak and those who objected to what he had to say that there would be outlets for both to do that without silencing or attempting to silence each other," Browne says.

Even with preparation, additional money and, for some schools, the luxury of being private, the risk of escalating tension and violence at speaker events have put campuses in a difficult position. And in Wisconsin, state officials have taken direct action to put a stop to what they see as dangerous infringements of the First Amendment.

In early October, the University of Wisconsin System's Board of Regents approved a policy that punishes student protesters who disrupt others' free speech - two instances of disorderly conduct will result in suspension, while three offenses could get a student expelled.

And while upholding free speech is a major goal for most universities, schools acknowledge the difficulty of spending hundreds of thousands of dollars on a single event when resources are strapped, tuition is rising, and students are graduating with increasing amounts of debt.

"No doubt we would much rather be spending it on the educational mission or the student experience or any other area that a financially strapped university would rather be spending money on," Mogulof says of UC-Berkeley. "As far as we're concerned, the commitment to free speech is as nonnegotiable as is our commitment to doing what we must to provide safety and security to the campus community, the guests and the public at large."
Follow me on Twitter @carolinesimon66

# data[].attributes.attachment_link.title
Free Speech Isn't Free: It's Costing College Campuses Millions

# data[].attributes.attachment_link.description
When Charles Murray or Milo Yiannopoulos visit a college campus, administrators don't just worry about the effect that inflammatory speech might have on their students or tainting their school's reputation. There's also the cost: which can climb into the millions of dollars.

# data[].attributes.body
https://padlet.com/baw0064/qs0g0d3o7p1bpvf8

# data[].attributes.headline
Forsyth County, GA v. Nationalist Movement (1992)

# data[].attributes.subject
Forsyth County, GA v. Nationalist Movement (1992)

# data[].attributes.attachment_link.title
Forsyth County Ga v Nationalist Movement

# data[].attributes.attachment_link.title
Charlottesville: Race and Terror – VICE News Tonight on HBO

# data[].attributes.attachment_link.readable_text
US District Court for the Northern District of Mississippi - 306 F. Supp. 963 (N.D. Miss. 1969)
December 1, 1969

Donald R. STACY et al., Plaintiffs,
v.
John D. WILLIAMS et al., Defendants.
Danny E. CUPIT et al., Plaintiffs,
v.
M. M. ROBERTS et al., Defendants.

Nos. WC 6725, 6837.

United States District Court N. D. Mississippi, W. D.

December 1, 1969.

J. Wesley Watkins, James L. Robertson, Eugene M. Bogen, Greenville, Miss., for plaintiffs.

Will S. Wells, Asst. Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg, Miss., for defendants.

Before COLEMAN, Circuit Judge, and RUSSELL and KEADY, District Judges.

KEADY, District Judge:

These consolidated cases[1] brought by students at the University of Mississippi and Mississippi State University, representing campus student organizations, by a faculty association, and by other persons, attack the constitutionality of regulations for off-campus speakers adopted by the Board of Trustees of the Institutions of Higher Learning of the State of Mississippi, and made applicable to all state colleges and universities under the Board's supervision. Plaintiffs seek both declaratory and injunctive relief against enforcement of these regulations.

On January 14, 1969, this three-judge United States District Court convened pursuant to 28 U.S.C. § 2281[2] to determine the constitutionality vel non of the various speaker regulations[3] adopted between February 17, 1955, and February 15, 1968, and then enforced by the Board of Trustees of Mississippi's Institutions of Higher Learning. We considered them only on their face and as written, as alleged invidious, discriminatory application thereof would properly be a matter for a single district judge, and, except for the investigatory powers therein granted the Board and the various University heads, we found them unconstitutionally vague, facially, and issued a declaratory judgment accordingly pursuant to 28 U.S.C. § 2201. As demonstrated (see Fn. 3), the standards adopted by the Board for judging acceptability of invited speakers were invalid on their face for lack of objective measurement, thus falling "within the compass of those decisions of the [Supreme] Court holding that a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." Baggett v. Bullitt, 377 U.S. 360, 367, 84 S. Ct. 1316, 1320, 12 L. Ed. 2d 377, 382 (1964).[4] Acting in the belief that the Board and the university administrators would not attempt to enforce regulations declared invalid by this court, we postponed granting injunctive relief for a sixty-day period, during which time the Board was permitted to propose new regulations, if it so desired, consonant with the ruling of the court.[5]

New regulations adopted by the Board on February 20, 1969, were submitted to this court on March 10, and plaintiffs thereafter filed timely objections. In all essential parts, we find the second set of regulations either invalid for vagueness under the Due Process Clause, as were the former regulations, or in clear violation of the Free Speech and Assembly provisions of the first and fourteenth amendments as well as the Equal Protection Clause of the fourteenth amendment. At the outset, it should be emphasized that this court is unwilling to interfere in any manner with the operation of the state's educational institutions except where, and only to the extent that, the Constitution requires it. We perceive no obstacle of constitutional concern under authoritative federal decisions which precludes a state or its agents from effectively controlling an orderly operation of its educational institutions. Indeed, college officials possess the authority, and have the duty, to make and enforce reasonable rules applicable to students, faculty and campus invitees alike to insure "the maintenance of order and decorum within the educational system." Burnside v. Byars, 363 F.2d 744 (5 Cir. 1966).[6] For their part college students can have no valid objection to proper rules governing their conduct as members of the academic community.[7]

Before dealing seriatim with the Board's new regulations, we first examine those controlling constitutional principles that relate directly to the issue of where, in the sensitive area of speech control, the university's power ends and students' rights begin.[8] That question, which is here presented, is one of immense public concern, and rightly so.

We begin with the premise that the facilities of state colleges and universities, dedicated as they are to the specialized function of education, may be utilized solely for that purpose. "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Adderly v. State of Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966).[9]

Thus, the freedoms of speech and assembly, while occupying a "preferred position" among constitutional liberties, may not be exercised on public property without regard to its primary usage. Moreover, wherever the policy is to allow outside speakers not connected with the university, it does not follow that the freedoms of speech and assembly of those persons on campus students and faculty alike may be exercised by anyone, at any time or place and regardless of the circumstances or probable consequences of the event. Snyder v. Board of Trustees of the University of Illinois, supra Fn. 4. See concurring opinion of Circuit Judge Godbold, in Ferrell v. Dallas Independent School District.[10] Just as the rights of students in this regard are not absolute, neither is the power of the Board, upon consent to outside speakers, so unfettered that it can be exercised in censorship over what is and what is not acceptable or in other arbitrary fashion.[11]

The interest of both students and Board can, and must, yield to harmonious accommodation under the Constitution. In this case, the Board has not adopted an all-inclusive ban, but rather has sought to provide some opportunity, albeit limited, for students at the various institutions to hear guest speakers. For this nonexclusionary attitude it is to be commended, but as it opens the lecture halls it must do so nondiscriminatorily. College administrators, in drafting a rule to regulate speaking, must give primary consideration to students' rights entitled to "comprehensive protection under the first amendment."[12] Utmost care must be shown for the recognition of those rights, particularly since a regulation of this type undertakes to bar certain speech and thus becomes a limitation upon freedom of speech and assembly.[13] Indeed, speaker regulations, by their very nature, constitute "prior restraints" upon the freedoms of speech and assembly. Although the law presumes their invalidity,[14] prior restraints are not unconstitutional per se. Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). But, in order to withstand constitutional attack, prior restraints must be narrowly drafted so as to suppress only that speech which presents a "clear and present danger" of resulting in serious substantive evil which a university has the right to prevent. Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919); Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1950). In Dennis, the Supreme Court made an exhaustive review of all of the cases involving application of the clear and present danger test for suppressing speech and concluded by adopting Chief Judge Learned Hand's interpretation of the phrase: "In each case, [Courts] must ask whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." (United States v. Dennis, 2 Cir., 183 F.2d 201, at p. 212). Obviously the evils sought to be avoided and their seriousness are to be judged within the context of each case, here, the peaceful functioning of institutions of higher learning.[15] Although the priority given first amendment rights makes for a "sanctity and a sanction not permitting dubious intrusions", Thomas v. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 322, 89 L. Ed. 430, 440 (1945), it is equally true that students' activity, whether manifested by a guest speaker or other mode of expression, which "materially disrupts classroom work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech." Tinker v. Des Moines Community School District, supra.[16]

To satisfy the clear and present danger test, there must be a finding by proper authority "either that immediate serious violence [or other substantive evil] was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated", wrote Mr. Justice Brandeis, in concurring opinion, in Whitney v. California, 274 U.S. 357, 376, 47 S. Ct. 641, 648, 71 L. Ed. 1095, 1106 (1927).[17] This guide was followed by Mr. Justice Black in Bridges v. California, 314 U.S. 252, 263, 62 S. Ct. 190, 194, 86 L. Ed. 192, 203 (1941), by stating it to be "a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high" before utterances can be proscribed.[18] Also, there must be recognized the material difference between speech which agitates and exhorts, calling for present violent action creating clear and present danger of serious substantive evil, which may assuredly be prohibited, and speech which is mere doctrinal justification of a thought or idea, leaving an "opportunity for general discussion and the calm process of thought and reason", which cannot be prohibited.[19] This last principle was recently reiterated by the Supreme Court when it declared that "a statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments", and "it sweeps within its condemnation speech which our Constitution has immunized from governmental control".[20]

Within the framework of the foregoing constitutional principles, we hold speaker regulations may validly provide that no request for a speaker will be honored unless made to the university by a recognized student or faculty group[21] within a reasonable period of time prior to the proposed speaking engagement, setting forth the name of the requesting student organization, the proposed date, time and location of the meeting, the expected size of the audience and topic of speech. Requirements such as these clearly relate to legitimate housekeeping needs of the institution, both to provide a suitable forum for the invited speaker and to allow orderly scheduling of facilities and avoidance of conflict with academic functions. Avins v. Rutgers, State University of New Jersey, 385 F.2d 151 (3 Cir. 1967);[22] Snyder v. Board of Trustees of University of Illinois, supra; Brooks v. Auburn University (District Court Opinion), supra. Moreover, it may be provided that an invitation shall not issue to a guest speaker unless approved by the executive head of the educational institution or such person or committee as he may authorize to act in his stead. It necessarily follows, however, that the approving authority must act in accordance with correctly prescribed standards; he must act upon a request within ample time after submission, and prompt review of his decision must be afforded. It is essential that procedural due process be built into such a regulation, in order for it to be valid, so as to relieve against the possibility of censorship, arbitrary decision, or unbridled discretion. For adequacy of standards for procedural due process, see Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965); Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S. Ct. 754, 19 L. Ed. 2d 966 (1968); and for the necessity to avoid vesting unbridled discretion in the person or persons determining who may speak, see Kunz v. New York, 340 U.S. 290, 71 S. Ct. 312, 95 L. Ed. 280 (1951).

The crux of a valid regulation must, in objective language, preclude only that speech subject to being forbidden under the doctrine of clear and present danger. For purpose of illustration, we have no doubt that the college or university authority may deny an invitation to a guest speaker requested by a campus group if it reasonably appears that such person would, in the course of his speech, advocate: 1) violent overthrow of the government of the United States, the State of Mississippi, or any political subdivision thereof; 2) willful destruction or seizure of the institution's buildings or other property; 3) disruption or impairment, by force, of the institution's regularly scheduled classes or other educational functions; 4) physical harm, coercion, intimidation or other invasion of lawful rights of the institution's officials, faculty members or students; or 5) other campus disorder of violent nature.[23] In drafting a regulation so providing, it must be made clear that the "advocacy" prohibited must be of the kind which prepares the group addressed for imminent action and steels it to such action, as opposed to the abstract espousal of the moral propriety of a course of action by resort to force; and there must be not only advocacy to action but also a reasonable apprehension of imminent danger to the essential functions and purposes of the institution, including the safety of its property and the protection of its officials, faculty members and students. (See Fn. 19 and 20). For emphasis, we repeat that a regulation may validly vest in the university's approving authority the power of deciding whether to invite a particular speaker requested by students, but it is a power to be exercised in good faith and upon relevant inquiry, consistent with the narrowed scope of what the regulation may constitutionally forbid, and also subject to adequate review procedure in event speech is forbidden.

Finally, we see no objection to the university's requirement that preference be given to an academic event over an invitation to a guest speaker sought to be scheduled for the same time. It may also require that the speaker assume full responsibility for any violation of law caused by his own conduct, and demand that a statement be made at the meeting that the views presented by the speaker are not necessarily those of the institution or of the sponsoring group. It is unnecessary to state that the university's power to maintain order at any campus meeting remains uninhibited.

Having in mind powers which may lawfully be exercised by the Board and the various university heads, we now examine the second set of regulations proposed by defendants.

The filing requirements contained in these regulations[24] are constitutionally acceptable as reasonable "housekeeping rules" necessary to avoid conflicts in the scheduling of facilities, to afford adequate security measures, etc., and to that extent would be approved. The head of an institution may be granted investigatory power with respect to a proposed speaker in order that he may adequately discharge his discretionary duty, in accordance with objectively stated and ascertainable standards provided by the regulation, and in no way do we suggest that the executive head may possess unbridled discretion in "approving", or determining who may speak.[25] However, to be valid, there must be added thereto provisions that the university head's decision be subject to fair and adequate review within a reasonable time, and that the executive head and reviewing board must act on the request within a specified reasonable time, or the request shall be deemed granted. See Freedman v. Maryland, supra. The regulations also fail to provide expressly that requests for speaker invitations may be initiated by the students themselves. This would be constitutionally required in order to avoid an outright stifling of constitutionally protected rights of freedom of speech and assembly. The university may not give to its administration the power to invite outside speakers and at the same time withhold the opportunity from student groups to make similar invitations. In opening its doors, the university may not, at will, pick and choose in the matter of inviting outside speakers. See Fn. 11.

Despite the Board's clarification of who is a "candidate" for public office, this particular regulation[26] is yet constitutionally infirm. We are not here concerned with the asserted right of an uninvited candidate for public office to mount his soap box on a university campus in support of his own cause indeed, it is highly questionable that any such right existsbut we deal with an entirely independent and altogether more fundamental matter, namely: the right of the campus community, students and faculty alike, to hear and participate in political discussions, including the advocacy of a particular candidate for public office. Obviously, speakers of this type, subject to few exceptions, may not be prohibited under the clear and present danger test. We need not pause to consider whether all, or only the great majority of candidates, seek audience approval and in no way pose a threat of campus disorder. Suffice it to say that any classification which bans political speeches is arbitrary and unreasonable and was unequivocally condemned by the Supreme Court in Mills v. Alabama, 384 U.S. 214, 86 S. Ct. 1434, 16 L. Ed. 2d 484, 488 (1966), holding that political discussion must remain free and open, in these words:

"Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussion of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes."[27]

So long as the campus remains open to other outside speakers, it is patently clear that invited political candidates and their standard bearers, however specifically defined, may not, consistently either with the first amendment rights of the students or with the Equal Protection Clause of the fourteenth amendment, be barred except upon the clear and present danger criterion. This regulation is rejected in toto.

There should be little question, if any, that a university is not constitutionally compelled to permit outside religious groups to conduct public worship services on the campus. There is doubt arising from the vagueness of the language used whether an outside speaker may speak to students, along with others, on a religious topic. But as this regulation[28] can reasonably be construed to mean that no student religious group may invite outside speakers on religious topics, which prohibition would conflict with the Equal Protection Clause, it must be rejected, and, if revised, must specifically be confined to forbidding only religious services conducted on the campus by persons having no connection with the university.

Initially, this new regulation,[29] in barring all persons "convicted of a felony or other crime in the State of Mississippi or the United States involving moral turpitude or breach of the peace" is fraught with facial unconstitutionality for its language is "not open to one or a few interpretations, but to an indefinite number", Baggett v. Bullitt, supra. See Fn. 4. More importantly, even if the regulation contained constitutionally acceptable phraseology, it is not directed at all to advocacy. Moreover, it places conclusive weight upon but one factor, viz: a speaker's prior criminal record, to the exclusion of more substantial and legitimate considerations which should be weighed in correct application of the "clear and present danger" rule. Finally, this regulation ignores whether the evil sought to be avoided is insignificant and minor, which may not be ground for suppressing speech, or is serious and substantial so as to justify suppression.

First, while one's prior conduct on a college campus may certainly be a valid consideration in the "clear and present danger" test, it should not be determinative, especially where the act which is the basis of the ban occurred as many as fifteen years prior to issuance of the invitation. Stated more simply, this regulation[30] may not stand, for, in addition to its void-for-vagueness infirmities and other deficiencies mentioned with respect to Regulation V, it would bar one who, on a single occasion within the last fifteen years, committed or incited violence on a university campus, without any regard whatsoever for his presently held views and the subject matter of his proposed speech. An approach of this nature, reflected in several of the Board's new regulations, entirely misses the mark of permissible limitations. See this opinion, ante pp. 971 and 972.

This proposed regulation[31] poses only one major constitutional difficulty and that is its provision that one may be barred from the campus because his mere "presence" presents a clear and present danger of causing a riot thereon.[32] This is a misconception of the applicable doctrine for it is fundamental that one may not be barred from speaking merely because his presence alone provokes riotous conduct among the audience. One simply cannot be restrained from speaking, and his audience cannot be prevented from hearing him, unless the feared result is likely to be engendered by what the speaker himself says or does. In such circumstances envisioned by this proposed regulation, attendant law enforcement officers must quell the mob, not the speaker. See, e. g., Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958); Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16, 62 L. Ed. 149 (1917). That the speaker may hold views disliked by the campus community is not a permissible basis for denial of the students' right to hear him. Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 93 L. Ed. 1131, 1134 (1949).[33]

This regulation[34] is repetitive of number five, except that it omits breach of the peace violations, and is vulnerable to the same constitutional criticisms.

This regulation[35] is defective in that it bars one who "advocates" violent overthrow of the government without differentiating between "the mere abstract teaching of * * * the moral propriety or even moral necessity for a resort to force and violence * * [and] preparing a group for violent action and steeling it to such action." Noto v. United States, supra, 367 U.S. at 297-298, 81 S. Ct. at 1521, 6 L. Ed. 2d at 841. "The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something." (Emphasis original). Yates v. United States, 354 U.S. 298 at 325, 77 S. Ct. 1064 at 1080, 1 L. Ed. 2d 1356 at 1378.

Not only must there be advocacy to action, there must also be a reasonable apprehension of imminent danger to organized government. See, e. g., Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066 (1937); and Brandenburg v. Ohio, supra.

This regulation[36] fails to make the constitutionally required distinction expressed in Number IX. It is also objectionable for the same reasons as Regulations V and VI.

Here[37] the college administrator is given unlimited discretion to determine not only whether one has "provoked or incited a riot"exceedingly vague terminology in itselfbut also whether the purpose of such riot was "to * * * require a * * * university head to be ousted," and without more specific guidance he cannot be expected to do so in a constitutionally consistent manner. This regulation is further subject to same constitutional objections as Regulations V and VIII.

Even assuming arguendo the validity of the foregoing regulations, this one[38] smacks of "guilt by association", see United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967), and, therefore, may not stand.

As earlier noted, aggrieved persons must be afforded prompt review of an adverse decision,[39] which should be conducted within a reasonable time prior to the proposed speaking engagement. They may not be required to await the next regularly scheduled Board meeting, for fundamental constitutional liberties may well be lost or substantially diluted by such delay. See Snyder v. Board of Trustees of University of Illinois, supra. The importance of adequate, efficient review, to satisfy procedural due process, is basic to any regulation otherwise valid on its face.

This brings us to the conclusion that, although the Board has rulemaking power to regulate guest speakers that may be constitutionally exercised, it has yet failed to act in a valid manner. The Board having evinced strong desire to have suitable regulations, we are unwilling to strike down what it has done and leave the state's institutions of higher learning entirely without protection afforded by reasonable and valid rules. Therefore, we deem it appropriate for us, sitting as a court of equity, to grant relief to the parties by fashioning approved speaker regulations to be uniformly applied to the state's institutions of higher learning. The regulations promulgated by the court, which are attached as an appendix to this Opinion, are made effective upon the entry of our Decree and shall remain in force until repealed by the Board. The Board has the power of repeal since it is not required to have any regulation in this area; but in event of such repeal, the Board may not adopt any further regulation relating to guest speakers inconsistent with the views herein expressed.

Let decree be entered in accordance with this opinion.

APPENDIX
UNIFORM REGULATIONS FOR OFF-CAMPUS SPEAKERS INVITED BY ORGANIZED STUDENT AND FACULTY GROUPS APPLICABLE TO ALL INSTITUTIONS OF HIGHER LEARNING WITHIN THE STATE OF MISSISSIPPI

The freedoms of speech and assembly guaranteed by the first and fourteenth amendments to the United States Constitution shall be enjoyed by the students and faculties of the several Institutions of Higher Learning of the State of Mississippi as respects the opportunity to hear off-campus, or outside, speakers on the various campuses. Free discussion of subjects of either controversial or noncontroversial nature shall not be curtailed.

However, as there is no absolute right to assemble or to make or hear a speech at any time or place regardless of the circumstances, content of speech, purpose of assembly, or probable consequences of such meeting or speech, the issuance of invitations to outside speakers shall be limited in the following particulars, but only in the manner set forth herein:

(1) A request to invite an outside speaker will be considered only when made by an organized student or faculty group, recognized by the head of the college or university;

(2) No invitation by such organized group shall issue to an outside speaker without prior written concurrence by the head of the institution, or such person or committee as may be designated by him (hereafter referred to as his authorized designee), for scheduling of speaker dates and assignment of campus facilities;

(3) Any speaker request shall be made in writing by an officer of the student or faculty organization desiring to sponsor the proposed speaker not later than ten calendar days prior to the date of the proposed speaking engagement. This request shall contain the name of the sponsoring organization, the proposed date, time and location of the meeting, the expected size of the audience and topic of speech. Any request not acted upon by the head of the institution, or his authorized designee, within four days after submission shall be deemed granted;

(4) A request made by a recognized organization may be denied only if the head of the institution, or his authorized designee, determines, after proper inquiry, that the proposed speech will constitute a clear and present danger to the institution's orderly operation by the speaker's advocacy[1] of such actions as:

1. The violent overthrow of the government of the United States, the State of Mississippi, or any political subdivision thereof; or

2. The willful damage or destruction, or seizure and subversion, of the institution's buildings or other property; or

3. The forcible disruption or impairment of, or interference with, the institution's regularly scheduled classes or other educational functions; or

4. The physical harm, coercion, intimidation, or other invasion of lawful rights, of the institution's officials, faculty members or students; or

5. Other campus disorder of a violent nature.

In determining the existence of a clear and present danger, the head of the institution, or his authorized designee, may *980 consider all relevant factors, including whether such speaker has, within the past five years, incited violence resulting in the destruction of property at any state educational institution or has willfully caused the forcible disruption of regularly scheduled classes or other educational functions at any such institution.

(5) Where the request for an outside speaker is denied, any sponsoring organization thereby aggrieved shall, upon written application to the head of the institution, or his authorized designee, obtain a hearing within two days following the filing of its appeal before a Campus Review Committee, composed of three faculty members and two students of the institution, for a de novo consideration of the request. The Campus Review Committee shall have power to grant or deny the request; and its decision shall be final, unless judicial review is sought as hereinafter provided. If such request is neither granted nor denied within said two-day period, it shall be deemed granted, and the speaker's invitation shall issue. The three faculty members to serve on the Campus Review Committee shall be appointed at each institution for a one-year term beginning September 1 of each calendar year, and this appointment shall be made by the President of the Board of Trustees of the Institutions of Higher Learning. The two student members on the Campus Review Committee shall be the president and secretary of the student body of each institution, and they shall serve only as long as they hold those student offices.

Any sponsoring organization aggrieved by the action of the Campus Review Committee in denying the request may obtain judicial review thereof upon application to any court of competent jurisdiction, state or federal, by presenting its verified petition setting forth the grounds of complaint and giving adequate notice of such filing to the head of the institution. Upon a hearing to be conducted as soon as practicable, and at such time and place as the court may prescribe, the court shall either reverse or affirm the decision of the Campus Review Committee as may be proper under the law and facts.

(6) Where the request for an outside speaker is granted and the speaker accepts the invitation, the sponsoring organization shall inform the head of the institution, or his authorized designee, in writing immediately of such acceptance. The head of the institution, or his authorized designee, may, in his discretion, require that the meeting be chaired by a member of the administration or faculty, and he may further require a statement to be made at the meeting that the views presented are not necessarily those of the institution or of the sponsoring group. By his acceptance of the invitation to speak, the speaker shall assume full responsibility for any violation of law committed by him while he is on campus.

NOTES

[1] Cause No. WC 6725, filed June 30, 1967, was instituted by student members of the University of Mississippi's Chapter of the Young Democratic Clubs of Mississippi, Institute of Civics under National Defense Education Act, and University of Mississippi Chapter of American Association of University Professors, and they complained of denial of request for campus speech by Aaron Henry as guest lecturer at a special civics program. Cause No. WC 6837, filed October 2, 1968, was also instituted by student representatives of the University of Mississippi's Chapter of the Young Democratic Clubs of Mississippi, and they complained of denial of a request for campus speech by Charles Evers, in support of the Humphrey-Muskie Presidential ticket. On October 21, 1968, student members of the Mississippi State University Chapter of the Young Democratic Clubs of Mississippi filed their complaint in intervention in No. WC 6837-K, complaining of the Board's refusal to allow Charles Evers to speak on the State College campus in support of the national Democratic Party. Henry and Evers joined as co-plaintiffs in the respective actions. Temporary restraining orders, issued by a single judge, allowed Henry and Evers to fulfill their speaking engagements at the University of Mississippi campus, but such relief was declined to intervenors from Mississippi State University. The cases were then consolidated for trial.

[2] In a Memorandum Opinion, yet unpublished, entered in Stacy, No. WC 6725, on December 28, 1967, United States Circuit Judge Claude F. Clayton, sitting by special designation as District Judge, held this a proper case for convening of a three-judge court as it seeks injunctive relief against enforcement of a state administrative regulation having state-wide application on the ground of unconstitutionality. Agreeing, we adopt that Opinion as our own to settle jurisdiction.

[3] The several written regulations and amendments thereto are set forth by date of adoption, as follows:
February 17, 1955
"All speakers invited to the campus of any of the state institutions of higher learning must first be investigated and approved by the head of the institution involved and when invited the names of such speakers must be filed with the Executive Secretary of the Board of Trustees."
November 17, 1966
"Henceforth names of anticipated visiting speakers at the several institutions of higher learning shall be furnished in advance of release of invitation not only to the Executive Secretary as heretofore but also to each member of the Board; and the executive heads of the several institutions will be charged with the responsibility of not approving invitations for speakers who will do violence to the academic atmosphere of the respective institutions; and persons in disrepute in the area from whence they come, and those charged with crime or other moral wrongs shall not be invited; and there will be no invitation to any person who advocates a philosophy of the overthrow of the government of the United States."
November 21, 1968
This regulation amended those of February 17, 1955, and November 17, 1966, by prohibiting invitations to, in addition to those earlier banned, "any person who has been announced as a political candidate or any person who wishes to speak on behalf of a political candidate."
October 22, 1964
"In general it shall be the policy of the several institutions not to make available the buildings and other facilities of the institutions to outside organizations. Exceptions to this policy may be approved by the executive head of an institution. No exception shall be approved for commercial enterprises, political or sectarian meetings, without specific approval of the Board."
February 15, 1968
"The Board will allow no more sectarian or political meetings to be held on the campuses of the state-supported institutions conducted by organizations outside the college complex." (Emphasis added)

Plaintiffs further complained of an unwritten regulation which, like the amendment of November 28, 1968, banned political candidates and their spokesmen. The portions emphasized above obviously must be, and are, condemned under the void-for-vagueness doctrine.

[4] See also: Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926); Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939).

University or college regulations analogous to those in this case were voided for facial unconstitutionality because of vagueness in Dickson v. Sitterson, 280 F. Supp. 486 (M.D.N.C.1968), three-judge court; Snyder v. Board of Trustees of the University of Illinois, 286 F. Supp. 927 (N.D.Ill.1968), three-judge court; Smith v. University of Tennessee, 300 F. Supp. 777 (E.D.Tenn.1969). Cf. Brooks v. Auburn University, 296 F. Supp. 188 (M.D.Ala.1969), aff'd 412 F.2d 1171 (5 Cir.1969), which involved vagueness in administrative decisions taken without rule or regulation.

[5] We also provided that if the Board failed to propose new regulations within the time period specified, the injunctive relief prayed for would be granted as a matter of course. Attorneys representing the Board stated, at the hearing, that they very much desired an opportunity to propose new Board regulations.

[6] Accord, Blackwell v. Issaquena Board of Education, 363 F.2d 749 (5 Cir. 1966): "There was an unusual degree of commotion, boisterous conduct, a collision with the rights of others, an undermining of authority, and a lack of order, discipline and decorum. * * * The school authorities in the instant case had a legitimate and substantial interest in the orderly conduct of the school and a duty to protect such substantial interests in the school's operation." Also Ferrell v. Dallas Independent School District, 392 F.2d 697 (5 Cir. 1968).

[7] We extend our hearty endorsement to the following statement made by the United States District Judges for the Western District of Missouri, sitting en banc, on the subject of "Obligations of a Student" in General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133, at 141:

"Attendance at a tax supported educational institution of higher learning is not compulsory. The federal constitution protects the equality of opportunity of all qualified persons to attend. Whether this protected opportunity be called a qualified `right' or `privilege' is unimportant. It is optional and voluntary.

"The voluntary attendance of a student in such institutions is a voluntary entrance into the academic community. By such voluntary entrance, the student voluntarily assumes obligations of performance and behavior reasonably imposed by the institution of choice relevant to its lawful missions, processes, and functions. These obligations are generally much higher than those imposed on all citizens by the civil and criminal law. So long as there is no invidious discrimination, no deprival of due process, no abridgement of a right protected in the circumstances, and no capricious, clearly unreasonable or unlawful action employed, the institution may discipline students to secure compliance with these higher obligations as a teaching method or to sever the student from the academic community.

"No student may, without liability to lawful discipline, intentionally act to impair or prevent, the accomplishment of any lawful mission, process, or function of an educational institution."

[8] We perceive no difference between the constitutional rights of students and their teachers.

[9] The only decision we find raising any doubt as to this proposition is Buckley v. Meng, 35 Misc.2d 467, 230 N.Y.S.2d 924, 933 (1962), wherein it was observed that:

"The overriding issue as to use of school facilities for non-academic purposes is not raised. Thus, while there may be no duty to open the doors of the school houses for uses other than academic and I have some doubt even as to this proposition once they are opened they must be opened under conditions consistent with constitutional principle[s]."

Plaintiffs in the instant case do not take issue with the power of the Board "to constitutionally limit the use of college facilities by forbidding all outside speakers to appear on campus and restrict campus facilities exclusively for use by immediate members of the university community." Plaintiffs' brief dated December 18, 1968, p. 21.

[10] 392 F.2d at 704:

"But in measuring the appropriateness and reasonableness of school regulations against the constitutional protections of the First and Fourteenth Amendments the courts must give full credence to the role and purposes of the schools and of the tools with which it is expected that they deal with their problems, and careful recognition to the differences between what are reasonable restraints in the classroom and what are reasonable restraints on the street corner."

[11] The clearest statement on the subject may be found in Danskin v. San Diego Unified School Dist., 28 Cal. 2d 536, 545-546, 171 P.2d 885 (1946):

"Once it [the State] opens the doors, however, it cannot demand tickets of admission in the form of convictions and affiliations that it deems acceptable.

* * * * *

"It is not for the state to control the influence of a public forum by censoring the ideas, the proponents, or the audience; if it could, that freedom which is the life of democratic assembly would be stilled. And the dulling effects of censorship on a community are more to be feared than the quickening influence of a live interchange of ideas."

Circuit Judge Griffin Bell, in Brooks v. Auburn University, supra, observed: "[I]t nevertheless is clear under the prior restraint doctrine that the right of the faculty and students to hear a speaker, selected as was the speaker here, cannot be left to the discretion of the university president on a pick and choose basis." Compare the reasoning of the Supreme Court in Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 [invalidating a Louisiana statute held to vest broad discretion in state officials to deny picketing except where conducted by a labor organization], holding:

"It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute."

[12] As held by the United States Supreme Court in Tinker v. Des Moines Community School Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731, 737 (1969):

"First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years."

Plaintiffs, representing student and faculty associations, have, without question, standing to attack the Board's regulations which abridge their first amendment rights.

[13] The first amendment provisions that "Congress shall make no law * * * abridging the freedom of speech * * * or the right of the people peaceably to assemble * * *," have long been incorporated into the fourteenth amendment so as to apply to the state's public educational institutions as an aspect of substantive due process. Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925); West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943).

[14] See, e. g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963); Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938).

[15] The "clear and present danger rule" is not a mechanical test applicable in every case touching first amendment freedoms, without regard to the context of its application; it is the considerations that gave birth to the rule, not the phrase itself, that are vital. American Communications Association v. Douds, 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925 (1949).

[16] The Supreme Court's majority opinion, authored by Mr. Justice Fortas, cited with approval the aforementioned Fifth Circuit cases of Burnside v. Byars and Blackwell v. Issaquena Board of Education.

[17] In Whitney, supra, Mr. Justice Brandeis also said:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. * * But even advocacy of violation [of law], however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind." (Emphasis added)

[18] It is worthy of note that Justices Black and Douglas now question the propriety of the clear and present danger doctrine in the interpretation of the first amendment. See their separate concurring opinions in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430, decided June 9, 1969.

[19] Schneiderman v. United States, 320 U.S. 118, 157, 63 S. Ct. 1333, 87 L. Ed. 1796, 1819 (1943); Noto v. United States, 81 S. Ct. 1517, 367 U.S. 290, 6 L. Ed. 2d 836 (1961).

[20] Brandenburg v. Ohio, supra. The Supreme Court also said, in reference to Dennis v. United States and like decisions, that:

"These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

[21] In this case we do not reach the issue of whether the privilege of an individual faculty member, asserted as part of the right of academic freedom to teach, to invite an outside speaker to address his own class, is exempt from any regulation by university authorities.

[22] Avins v. Rutgers, supra, 385 F.2d at 153:

"The right to freedom of speech does not open every avenue to one who desires to use a particular outlet for expression. On the contrary, each particular avenue for expression presents its own peculiar problems. * * * Nor does freedom of speech comprehend the right to speak on any subject at any time."

[23] This is a considered enumeration of the categories of serious substantive evil which a college or university has an unmistakable right to guard against. We do not exclude other types of speech, equally subject to constitutional suppression, provided they qualify upon the basis of clear and present danger and satisfy requirements made rigid in these words: "Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly." Thomas v. Collins, supra, 323 U.S. at 530, 65 S. Ct. at 323.

[24] I. No speaker shall be invited or permitted to speak on any campus of the state institutions of higher learning without first having been investigated and approved by the head of the institution involved, and the name of such proposed speaker must be submitted to the Executive Secretary and to all members of the Board of Trustees of Institutions of Higher Learning, and shall remain on file with the Executive Secretary of said Board of Trustees for a period of ten days before the approval may be had.

II. An invitation to speak on the campus of any state institution of higher learning shall be extended in writing only by the head of the institution or by the head or dean of a school or department thereof with the written authorization of the head of said institution.

[25] Kunz v. New York, supra; Brooks v. Auburn University (Court of Appeals Opinion), supra.

[26] III. No person shall be permitted to speak or make speeches on any campus of any state controlled institution of higher learning in Mississippi who has announced as a political candidate for public office; and no person may speak on behalf of such announced political candidate or candidates or use on-campus buildings or facilities of any of the state owned and controlled institutions of higher learning under the jurisdiction of the Board of Trustees of Institutions of Higher Learning in Mississippi. An announced candidate is defined as a person who has formally qualified as a candidate under the laws of the state from which he comes or who has received nomination by the political party with which he is affiliated and under the banner of which he runs as such political candidate.

[27] Chief Justice Hughes, in speaking for the Court in DeJonge v. Oregon, 299 U.S. 353, 365, 57 S. Ct. 255, 260, 81 L. Ed. 278, 284 (1937), declared:

"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."

[28] IV. The buildings and facilities of state institutions of higher learning in Mississippi under the supervision of the Board of Trustees of such institutions shall not be made available for public religious meetings or gatherings to off campus persons or groups of persons.

[29] V. No person who has been convicted of a felony or other crime in the State of Mississippi or the United States involving moral turpitude or breach of the peace will be invited to speak or permitted to speak on any campus of any of the state institutions of higher learning in Mississippi.

[30] VI. No person shall be invited or permitted to speak on the campus of any of the state institutions of higher learning in Mississippi who has willfully damaged property of any institution of higher learning in the State of Mississippi or who has disrupted any institution of higher learning in the State of Mississippi by willful acts which resulted in violence and destruction of property owned by the State of Mississippi with adjudications relating thereto by a court or courts of competent jurisdiction within the last fifteen years.

[31] VII. No person shall be permitted to use the facilities of the state institutions of higher learning whose presence will constitute a clear and present danger of inciting a riot on any campus thereof. Factors to be considered in determining whether a person's presence will constitute a clear and present danger include whether that person has in the past promoted or incited a riot resulting in the destruction of state owned property at any of said institutions or has disrupted the classroom activities existing at any of said institutions to the extent that classes had to be suspended with substantial interference with or total disruption of the teaching processes. (Emphasis added)

[32] Such a test might well preclude speeches on many of the nation's college campuses by high government officials and military leaders who advocate a "hard line" in dealing with North Vietnam, contrary to the sentiment of great masses of today's college youth. The corrective, of course, is to discipline unruly, misbehaving students, but not curtail discussion of controversial government policy.

[33] Terminiello v. Chicago, supra, at page 4, 69 S.Ct. at p. 896:

"Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute [citing cases], is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. [citing cases] There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."

[34] VIII. No person shall be permitted to use the facilities of the state institutions of higher learning who has been convicted of any crime involving violence or moral turpitude within a period of fifteen (15) years immediately prior hereto.

[35] IX. No person shall be invited or permitted to speak on the campus of any of the state institutions of higher learning in Mississippi who advocates the violent overthrow of the Government of either the United States of America or the State of Mississippi.

[36] X. No person shall be invited or permitted to speak on the campus of any of the state institutions of higher learning in Mississippi who has advocated violence or who has caused violence to be used by others which has actually resulted in the destruction of public property within a period of fifteen years prior to the date of invitation.

[37] XI. No person shall be invited or permitted to appear on any campus of the state colleges or universities of Mississippi who has incited or provoked a riot in effort to cause or require a state college or university head to be ousted or his services terminated within a period of fifteen years prior to the date of such invitation; and in that connection and by way of explanation, those to be denied said privileges shall include any person who has, within a period of fifteen years, incited any group of more than three persons to enter a college or university campus or building and destroy property.

[38] XII. The buildings and facilities of the state colleges and universities in Mississippi shall not be made available and are not available to any off-campus groups for public meetings or public gatherings, except when approval is first had and obtained from the Mississippi Board of Trustees of Institutions of Higher Learning; but no such off-campus group will be granted permission by said Board of Trustees for use of said buildings and facilities if it includes persons or groups prohibited in any of the foregoing regulations.

[39] XIII. Any person or organization feeling aggrieved at any adverse ruling of the Chancellor or President of any Mississippi state institution of higher learning, as the case may be, may file an appeal within five days after such adverse ruling to said Board of Trustees of Institutions of Higher Learning for a hearing at their next succeeding regular Board meeting. Said notice will be filed with the Executive Secretary of the Board.

[1] Advocacy, as described above, means preparing the group addressed for imminent action and steeling it to such action, as opposed to the abstract espousal of the moral propriety of a course of action by resort to force; and there must be not only advocacy to action but also a reasonable apprehension of imminent danger to the essential functions and purposes of the institution.

# data[].attributes.attachment_link.description
US District Court for the Northern District of Mississippi - 306 F. Supp. 963 (N.D. Miss. 1969) December 1, 1969 Donald R. STACY et al., Plaintiffs, v. John D. WILLIAMS et al., Defendants. Danny E. CUPIT et al., Plaintiffs, v. M. M. ROBERTS et al., Defendants. Nos. WC 6725, 6837.

# data[].attributes.attachment_link.title
The Heckler's Veto: Does the First Amendment Allow the Audience to Shut Down a Speaker?

# data[].attributes.headline
Alumna Among Plaintiffs Awarded in Sines v. Kessler Decision

# data[].attributes.subject
Alumna Among Plaintiffs Awarded in Sines v. Kessler Decision

# data[].attributes.attachment_link.title
Alumna Among Plaintiffs Awarded in Sines v. Kessler Decision

# data[].attributes.attachment_link.description
Elizabeth Sines, a 2019 University of Virginia School of Law alumna, and her fellow plaintiffs have prevailed in the civil suit against white supremacists who organized the violent Unite the Right rally in 2017.

# data[].attributes.headline
UVA Deans Working Group Review of University Response

# data[].attributes.subject
UVA Deans Working Group Review of University Response

# data[].attributes.attachment_link.readable_text
Status: Final

Oversight Executive: Associate Vice President for Safety & Security and Chief of Police, Executive Vice President and Chief Operating Officer

Applies To:

Academic Division and Medical Center.

Reason for Policy:

The University of Virginia Police Department is committed to providing a safe workplace and environment for its employees, students, patients, contractors, and visitors. The Chief of Police, or designee, is authorized by the Code of Virginia §§ 23.1-815 and 18.2-119 to issue a Trespass Warning that excludes individuals from all University or Medical Center property or a specific building or area. This policy governs the issuance of a Trespass Warning by the University of Virginia Police Department.

Definition of Terms in Statement:

Threat Assessment Team (TAT):

The TAT is the team required by Virginia Code §23.1-805 to implement the University's assessment, intervention, and action protocol.

Trespass Warning:

A written notice issued by the University of Virginia Police Department, the UVA Medical Center, the Division of Student Affairs, or Office for Equal Opportunity and Civil Rights that warns a person that they are not permitted to enter or remain upon the University or UVA Medical Center property described in the Trespass Warning.

Policy Statement:

The University and the Medical Center retain the authority to ban individuals from all University or Medical Center property or a specific building or area. A Trespass Warning may be issued by Authorized University Officials. For this policy, Authorized University Officials include:

1. University Police Officers are authorized to issue a Trespass Warning that bans individuals from all University or Medical Center property or a specific building or area.

2. Medical Center Office of Patient Safety and Risk Management Authorities are authorized to issue Trespass Warnings to patients and visitors at the University Medical Center.

3. Division of Student Affairs (Student Affairs) Officials are authorized to issue a Trespass Warning to a student they reasonably believe poses a threat to themselves, to the health or safety of other members of the University, to University property, or to the educational process, pending a hearing on an underlying offense charged under the Standards of Conduct (see STAF-003: Statement of Students' Rights and Responsibilities). Student Affairs officials may temporarily or permanently issue a Trespass Warning to a student to enforce an interim disciplinary suspension or disciplinary outcomes for violations of the Student Standards of Conduct.

4. Office for Equal Opportunity and Civil Rights (EOCR) Officials are authorized to issue an interim Trespass Warning to employees or students to provide remedial or protective measures per HRM-041: Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence, HRM-009: Preventing and Addressing Discrimination and Harassment, or HRM-010: Preventing and Addressing Retaliation. EOCR officials may issue a temporary or permanent Trespass Warning to a student or employee found responsible for violation of University policies HRM-041, HRM-009, or HRM-010.

1. Issuance of a Trespass Warning:
Authorized University Officials may issue a Trespass Warning for:

1. The commission of or upon conviction of any criminal activity occurring on or off University or Medical Center property.

2. A violation of a University regulation.

3. A violation of a University, Health System, or Medical Center policy.

4. The failure to adhere to the lawful directive of a police officer or University official.

5. Conduct that threatens the health, safety, or property of a member of the University or its Medical Center community; a patient or visitor at the Medical Center; or the educational, research, or healthcare process.

6. Enforcement of disciplinary outcomes or findings of responsibility for violation of the Student Standards of Conduct or University policy HRM-041: Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence, HRM-009: Preventing and Addressing Discrimination and Harassment, or HRM-010: Preventing and Addressing Retaliation.

7. The provision of remedial or protective measures per HRM-041: Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence.

Under no circumstances shall a Trespass Warning prohibit any individual from accessing the Medical Center Emergency Department, Labor and Delivery, or any other medical facility owned and operated by the Medical Center for an examination or treatment for an emergency medical condition in accordance with Medical Center Policy 0214: Medical Screening and Stabilizing Treatment for Emergency Medical Conditions. Only the Medical Center Office of Patient Safety and Risk Management may authorize a Trespass Warning that prohibits an individual from seeking or receiving non-emergent care or authorize the modification or removal of such prohibition from an existing Trespass Warning.

2. Enforcement:
University Police serve as the enforcement body for all trespass warnings enforceable within their jurisdiction, and Authorized University Officials from the Medical Center, Student Affairs, and EOCR must notify University Police in writing when a Trespass Warning is issued so that enforcement can occur. University Police must maintain a list of trespassed individuals. If an authorized University Official lifts a trespass warning, written notification to University Police must be provided within 48 hours so records may be updated. Prior to granting permission for a trespassed person to come on University or Medical Center property for a hearing, to receive medical care, or for other purposes, an Authorized University Official must consult with the University Police to consider safety issues and provide details pertaining to the location, date, time, and approximate duration that the individual will be on University or Medical Center property.

3. Responsibilities:
AnAuthorized University Official is responsible for:

Issuing a Trespass Warning when circumstances are warranted per the criteria set forth in Section I.

Notifying University Police within 48 hours when a Trespass Warning has been issued.

Notifying University Police within 48 hours when a Trespass Warning has been modified or removed.

Notifying the Office of the Executive Vice President and Provost in the event the employee in question is a member of the faculty or listed as an instructor of record for the current term.

Consulting with the University Police Department prior to a determination expressly granting permission for a trespassed individual to be on University or Medical Center property.

Reporting violent or threatening behavior in accordance with University Policy HRM-028: Preventing and Addressing Threats or Acts of Violence or Medical Center Policy 0172: Preventing and Responding to Violence in the Workplace, respectively, as it pertains to the issuance of the Trespass Warning.

The University Police Department is responsible for:

Enforcing a Trespass Warning.

Maintaining a current listing of all individuals issued a Trespass Warning by any Authorized University Official.

Consulting with the Medical Center Office of Patient Safety and Risk Management prior to issuing, modifying or withdrawing a Trespass Warning to an individual that meets the criteria set forth in Procedure I.1.a or b.

Consulting with Student Affairs, EOCR, and the Threat Assessment Team within 48 hours of issuance of a Trespass Warning to a suspended or unenrolled student.

Consulting with Employee Relations and the Threat Assessment Team within 48 hours of issuance of a Trespass Warning to an employee, employment applicant, or contractor/vendor.

The trespassed individual is responsible for abiding by all terms and conditions as set forth in the Trespass Warning.

4. Compliance with Policy:
Violation of a Trespass Warning constitutes a Class 1 Misdemeanor and is grounds for arrest pursuant to Virginia Code §18.2-119.

Trespass Warnings issued by the University Police Department will automatically expire four (4) years after the date the Trespass Warning was served, unless otherwise noted in the Trespass Warning. University Police Trespass Warnings can be reissued prior to the four-year expiration to persons engaged in ongoing conduct that threatens the health, safety, or property of a member of the University or its Medical Center community, a patient or visitor at the Medical Center, the educational process, or for other reasons described above.

Trespass Warnings issued by the Office of Patient Safety and Risk Management, Student Affairs, or EOCR will expire per the terms and/or conditions noted on the Trespass Warning.

For questions about Trespass Warnings and the appeal process:

University Police-issued Trespass Warnings - questions/appeals should be directed to the Office of the Associate Vice President for Safety and Security or designee at safety@virginia.edu.

Student Affairs-issued Trespass Warnings - questions/appeals should be directed to the Vice President and Chief Student Affairs Officer or designee at vpsa@virginia.edu.

EOCR-issued Trespass Warnings - questions should be directed to the Associate Vice President, Office for Equal Opportunity and Civil Rights or designee at uvaeocr@virginia.edu.

Medical Center-issued Trespass Warnings - questions should be directed to the Office of Patient Safety and Risk Management/Appeals should be directed to the Chief Executive Officer (CEO) of the Medical Center or to such other office or individual as the CEO of the Medical Center may designate to review such appeals on the CEO's behalf.

Procedures: Related Information:

[Note: The accompanying procedures do not apply to any Trespass Warning issued by local law enforcement for trespass on University or Medical Center property.]
University Policy: Health System and Medical Center Policy: Virginia Code: Federal Regulation:
Emergency Medical Treatment and Active Labor Act (EMTALA)
Virginia Code § 18.2-119. Trespass after having been forbidden to do so, penalties.
Virginia Code § 23.1-815. Campus police forces and auxiliary police forces; powers and duties; jurisdiction.
Virginia Administrative Code, Title 8, Agency 85.
HSG-006: Patient Rights and Responsibilities
0050: Patient Visitation
0172: Preventing and Responding to Violence in the Workplace
0214: Medical Screening and Stabilizing Treatment for Emergency Medical Conditions
Student Standards of Conduct
STAF-003: Statement of Students' Rights and Responsibilities
HRM-009: Preventing and Addressing Discrimination and Harassment
HRM-010: Preventing and Addressing Retaliation
HRM-028: Preventing and Addressing Threats or Acts of Violence
HRM-041: Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence
For issuance and appeal of Medical Center-issued Trespass Warnings - Trespass Warnings shall be issued by the Medical Center Office of Patient Safety and Risk Management. Refer to Health System Policy HSG-006: Patient Rights and Responsibilities and Medical Center Policy 0050: Patient Visitation. Persons seeking to appeal issuance of a Trespass Warning issued by the Office of Patient Safety and Risk Management may contact the CEO of the Medical Center, in writing, within seven business days from the date the Trespass Warning was issued.

For issuance and appeal of Student Affairs-issued Trespass Warnings - Refer to policy STAF-003: Statement of Students' Rights and Responsibilities and the respective procedures and appeal process.

For Equal Opportunity and Civil Rights-issued Trespass Warnings there is no appeal - Refer to policies HRM-041: Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence, HRM-009: Preventing and Addressing Discrimination and Harassment, or HRM-010 Preventing and Addressing Retaliation.

For Issuance and Appeal of University of Virginia Police Department-issued Trespass Warnings.

1. Procedures Related to the Issuance of a Trespass Warning by the University of Virginia Police:

1. Consultation with the Medical Center:
Prior to the issuance of a Trespass Warning, the University of Virginia Police Department shall consult with the Medical Center Office of Patient Safety and Risk Management during normal business hours (Monday-Friday, 8:00a.m. - 5:00 p.m.) if:

1. the incident occurred at the Medical Center¹ and

2. the nature of the criminal activity, violation, or conduct presents a threat to public safety that may necessitate barring the individual from seeking or receiving non-emergent patient care at the Medical Center.

¹In the context of the requisite consultation, the "Medical Center" means the University Hospital, connected buildings, connective elements between them, the Medical Research Buildings on the Medical Center Comples (MR-4, MR-5, & MR-6) and all parking lots or garages serving the University of Virginia Medical Center. See Map.

2. Trespass Warnings Issued to Students:
University Police Trespass Warnings issued to suspended or unenrolled students or student applicants can impact the student's return or admission process. In these cases, University Police must consult with Student Affairs or EOCR, as well as the Threat Assessment Team, within 48 hours to consider the circumstance under which the Trespass Warning was issued, safety risk to members of the University community, and to determine if the Trespass Warning will supersede any current disciplinary sanction, return process, or admission decision.

3. Trespass Warning Issued to Employees and Employment Applicants
University Police Trespass Warnings issued to employees or employment applicants may impact employment or hiring decisions. In these cases, University Police must consult with Employee Relations and the Threat Assessment Team within 48 hours to consider the circumstance under which the Trespass Warning was issued, the safety risk to members of the University community, and to consider the implications of the Trespass Warning on employment or hiring status.

2. Procedures to Appeal a University Police-Issued Trespass Warning:
The Trespass Warning must be appealed in writing to the Associate Vice President for Safety & Security (AVPS&S) within five (5) calendar days after the date the Trespass Warning is served.

Written appeals can be mailed to:
Associate Vice President for Safety & Security
P.O. BOX 400214
2304 Ivy Road
Second Floor
Charlottesville, VA 22903-44790

Written appeals also may be submitted by electronic mail to: safety@virginia.edu.

If the appeal is not delivered or postmarked within five (5) calendar days after the date the Trespass Warning is served, then the recipient of the Trespass Warning waives the opportunity to appeal.

Written appeals shall include:

1. Appellant's contact information, including address, telephone number, and e-mail address.

2. Date of the issuance of the Trespass Warning and the Incident Based Reporting (IBR) Number located in the upper left-hand corner of the Trespass Warning.

3. The reason for the review request.

4. A complete and candid explanation for the conduct that precipitate the Trespass Warning.

5. The basis for the desire to be on University or Medical Center property.

6. Any other information the appellant wishes to be considered.

The Trespass Warning remains in effect while the appeal is being considered, unless the University of Virginia Police modifies or withdraws the Trespass Warning.

If the basis of the appeal is for a need to be on Medical Center1 property for a scheduled medical procedure or appointment or to visit a registered patient at the Medical Center [in instances where a Trespass Warning otherwise prohibits the person from coming to the Medical Center for any purpose other than emergency care and treatment in accordance with the Emergency Medical Treatment and Active Labor Act (EMTALA)], the AVPS&S or a designated representative must consult with the Medical Center's Office of Patient Safety and Risk Management within 48 hours prior to finalizing a decision regarding upholding, modifying, or withdrawing the Trespass Warning.

The Associate Vice President for Safety & Security shall issue the decision upholding, modifying, or withdrawing the Trespass Warning within twenty-one (21) calendar days after receipt of the written appeal. The AVPS&S may modify or withdraw the Trespass Warning at any time.

Policy Background:

The Policy Statement is the codification of existing practice. This Policy and the accompanying Procedures apply to all trespass warnings issued on or after the effective date of this Policy, April 25, 2018, revised May 16, 2020.

Major Category: Physical Resource Management

Category Cross Reference: Safety, Security and Environmental Quality

Next Scheduled Review:

Approved by, Date: Executive Vice President and Chief Operating Officer,

Revision History: Revised 5/16/20; Updated 10/8/18.

# data[].attributes.attachment_link.description
Status: Final Oversight Executive: Associate Vice President for Safety & Security and Chief of Police, Executive Vice President and Chief Operating Officer Applies To: Academic Division and Medical Center. Reason for Policy: The University of Virginia Police Department is committed to providing a safe workplace and environment for its employees, students, patients, contractors, and visitors.