OP-ED: The Heckler’s Veto is the Poisonous Fruit of the Marketplace of Ideas

Courts have long recognized that higher education provides a unique forum for free speech and expression under the First Amendment. Notably, in its landmark decision Healy v. James, the Supreme Court held that “First Amendment protections should [not] apply with less force on college campuses than in the community at large.”  

In writing for the majority, Justice Lewis Powell acknowledged that “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools … [and that] [t]he college classroom, with its surrounding environs, is peculiarly the marketplace of ideas and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.” 

Unfortunately, in recent years we have seen numerous efforts by students and faculty to restrict the marketplace to only a few, select ideas, while stripping the free speech and expression rights of others using the heckler’s veto.  

University of Chicago Law School Professor Harry Kalven first coined “heckler’s veto.” In a series of lectures in 1964, Kalven criticized the use of force by police and hostile crowds against civil rights marchers and invoked the term when challenging the Supreme Court as to whether it would permit “the South one gigantic heckler veto” over those expressing their support for equal rights.

[RELATED: WATCH: Nigel Farage challenges heckler, ‘Why don’t you listen and ask questions?’]

In higher education, the heckler’s veto is generally characterized by either an institution’s passive response to a speaker being interrupted and shouted down by those who oppose the viewpoint or message being expressed, or when an institution imposes unreasonable costs or other restrictions on a speaker to limit or prohibit their speech out of fear of the reaction the speech might elicit, or simply because it disagrees with the message being conveyed. 

In either case, the heckler’s veto strips the speaker of their First Amendment protections and the institution’s conduct amounts to nothing short of censorship. As Justice Potter Stewart declared in his strongly worded dissent in Ginzberg v. United States, “[c]ensorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.”  

Recent examples of the successful use of the heckler’s veto underscore its corrosive effect on the teaching and learning process in higher education. In 2019, Dr. Arthur Laffer, a Reagan administration official, was invited to Binghamton University to discuss domestic economic policies. Shortly after Laffer began speaking, students disrupted the event with bullhorns, eventually driving him from the stage to the cheers of the mob.  

In 2018, Georgetown University Law School invited Kevin McAleenan, then acting secretary of the Homeland Security Department, to address an annual conference on immigration. Before he could begin his remarks, protestors began screaming and chanting, making it impossible for McAleenan to speak and forcing him from the stage.  

In 2017, Israel’s Ambassador to the United States, Michael Oren, was invited to the University of California at Irvine to deliver a lecture on U.S. and Israeli relations. A group of screaming and shouting students cut the talk short, with some individuals repeatedly calling the Ambassador a “killer.”  

Also in 2017, students at the College of William and Mary shouted down the executive director of the ACLU’s Virginia affiliate who was invited to lecture on the First Amendment. The group sought to silence the ACLU representative because of her organization’s decision to represent an “alt-right” activist in his lawsuit against the City of Charlottesville, which revoked the activist’s rally permit. 

While these examples illustrate that the heckler’s veto often involves disruptive mob activity, the heckler’s veto can also be employed subtly, but with no less chilling effect on speech.  

[RELATED: Middlebury cowers before ‘heckler’s veto’ with new policy]

For example, in 2016, a Dance Therapist Instructor at the University of Florida prohibited students from using certain words in her class, such as “boyfriend,” “girlfriend,” “husband,” “wife,” “mom,” or “dad” because they were not inclusive enough. Instead, students were instructed to use terms such as “partner” or “significant other,” or “family,” which are free of stereotypes and “inclusive of alternative orientations and family structures.” The instructor also required students to “speak in a way that does not make assumptions about others based on norms, stereotypes, or one’s own identity or experience.” Those who violated the policy were subject to academic sanctions.  

In 2020, an English faculty member at Iowa State University threatened to kick students out of her class for engaging in “othering.” Included in her syllabus was the following warning: “Any instances of othering that you participate in intentionally (racism, sexism, ableism, homophobia, sorophobia, transphobia, classism, mocking of mental health issues, body shaming, etc) in class are grounds for dismissal from the classroom. The same goes for any papers/projects: you cannot choose any topic that takes at its base that one side doesn’t deserve the same basic human rights as you do (ie: no arguments against gay marriage, abortion, Black Lives Matter, etc). I take this seriously.”  Fortunately, the university concluded that the faculty member’s threats violated her students’ First Amendment rights and forced her to revise her syllabus. 

In the aftermath of these types of events, some campus leaders have rightfully condemned the conduct. 

Following the incident at the College of William and Mary, its president issued a statement, which read in part: “[s]ilencing certain voices in order to advance the cause of others is not acceptable in our community. This stifles debate and prevents those who’ve come to hear a speaker, our students in particular, from asking questions, often hard questions, and from engaging in debate where the strength of ideas, not the power of shouting, is the currency. William & Mary must be a campus that welcomes difficult conversations, honest debate and civil dialogue.”  

Campus Reform has highlighted universities’ efforts to curb the use of the heckler’s veto as a cudgel against the free speech rights of others. In 2017, Adam Sabes reported that following the unruly disruption of a College Republican meeting and the arrest of a university employee for assaulting two conservative students, the University of Illinois developed a set of guiding principles intended to reinforce its commitment to free expression, while explicitly prohibiting students from exercising a “heckler’s veto” to prevent free speech on campus.  

[RELATED: University of Illinois cracks down on ‘heckler’s veto’]

“We welcome and encourage members to respond to speech with which they disagree by engaging in counter-speech of their own. But we will not condone shouting down or physically obstructing or threatening a speaker or the speaker’s audience,” the university statement explained. “Such activities are antithetical to the primary value on which freedom of speech rests: a commitment to the power of ideas rather than the use of force to influence the way people think and act.”  

Though, regrettably, these cases are rare and words amount to cold comfort when institutions continually permit the heckler’s veto for a small minority intent on stifling debate on campus.  

So, how can higher education effectively curtail the use of the heckler’s veto while fostering and promoting the free flow and exchange of diverse and divergent viewpoints?   

First, and foremost, higher education must challenge and correct the misperceptions many students harbor about the First Amendment and the speech protections it affords. In a 2017 student survey conducted by Yale University, 38% of student respondents indicated that it is appropriate to shout down or disrupt a campus speaker, 30% believed physical violence is justified to prevent a speaker from using “hate speech,” and 58% believed their college should forbid speakers on campus who have a history of engaging in “hate speech.” 

These responses reflect a fundamental misunderstanding of the First Amendment and the protections it affords, even to unpopular or controversial speech, including so called “hate speech.” These attitudes have clearly contributed to the steady uptick in the use of the heckler’s veto to suppress and censor speech on college campuses.  

Second, faculty and administrators should actively engage and encourage students in the classroom and elsewhere to debate and discuss controversial issues. Having the ability to form and present a cogent argument, engage in active listening and critical thinking, develop points and counter points, respond constructively to challenges and criticism, and acknowledge other points of view are essential life skills, which are seriously lacking among many of today’s students, as evidenced by the recent indulgence in the similarly intellectually lazy practice of “cancelling.”  

Third, faculty and administrators must model these skills themselves, setting aside personal partisan positions in order to effectively facilitate an academic environment which supports debate and discussion.  

[RELATED: Former prof SUES after being heckled while reciting Pledge of Allegiance]

While faculty and administrators have a right to hold personal and political views, they must not permit those views to influence their primary role as educators.  

Fourth, institutions must adopt clear principles and policies, like those at the University of Illinois, which reflect and reinforce a commitment to free speech and expression, regardless of the viewpoint expressed, while providing no safe harbor for the disruptive conduct marked by the heckler’s veto. 

It is no wonder that we have seen an escalation in students’ use of the heckler’s veto since there are often no ramifications for engaging in such conduct.  

While a handful of disruptive students will not be dissuaded from using the heckler’s veto by the threat of disciplinary action, a good many students might channel their energies and efforts in a more productive direction if they understand there are real consequences for violating institutional policies.  

Student discipline can serve as a teachable moment, particularly if the lessons learned are to tolerate different views and perspectives and engage in legitimate forms of dissent without infringing on the rights of others.  

Lastly, institutions must recognize that in most cases the time to stop a heckler’s veto is not at the moment of disruption; that could easily lead to an escalation in tension and even violence.  Rather, higher education must more effectively educate students beforehand of the bright line between legitimate and respectful debate and discussion, which is a hallmark of higher education, and the kind of prohibited conduct exemplified by the heckler’s veto. Institutions can foster the type of vibrant and intellectually diverse learning environment envisioned by the Supreme Court in Healy by adopting such practices. 

If higher education is to truly be a marketplace of ideas, where speakers can express their views without fear of retribution or reprisal, then its leaders can no longer remain ambivalent or indifferent to the coercive and destructive effects of the heckler’s veto.  

Students too have a responsibility to learn restraint and tolerance for views they disagree with and should face disciplinary consequences when they fail to exercise such restraint.  

Learning to tolerate the viewpoints of those we disagree with, sometimes vehemently, is not easy, but it is a crucial life skill and it is incumbent on us all to foster a learning environment where such skills are the rule and not the exception. If we continue to fail in this task, we are doing a disservice to our students and not living up to our responsibilities as educators.