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A Heckler's Veto After All?

Nina Shea

The First Amendment provides the strongest protection of free speech in the world, and it has been the key to America’s free society. Under the 1969 Supreme Court case of Brandenburg v. Ohio, it protects even that expression which advocates the use of force unless such “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Pastor Terry Jones’s burning of a Koran is protected speech under that standard, because it wasn’t advocating violence. But his demonstration, with the help of lots of media publicity and direction from Muslim leaders, did lead to murders in Kashmir. Still, Jones has a constitutional right to burn the Koran.

Courts are wary of a “heckler’s veto,” where listeners’ reactions become a reason to suppress speech. This jurisprudence was established in the civil-rights era case. In Brown v. Louisiana, the Court decided that orderly demonstrators are “not chargeable with the danger…that their critics might react with disorder or violence.” In Dunlap v. City of Chicago,the city was required to provide adequate police protection for a pro–Martin Luther King protest that had met a violent response in every prior year it was held. (Subsequently, the court permitted protesters to sue police for violating their rights by providing inadequate protection.) In U.S. v. Forsyth, the Supreme Court invalidated a local ordinance creating administrative fees for protests that varied with the expected costs of policing the event, because “speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”

But now Justice Breyer has raised the unthinkable. Disregarding over 30 years of precedents, he raised the possibility, George Stephanopoulos reveals, that an exception may be carved out of the First Amendment to punish those who demonstrate against the Koran — and, as he reasoned, only the Koran. The heckler, or Islamic extremist, may just get his veto afterall.

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