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Subject Area: Political Theory

Freedom of Assembly vs. “Heckler's Veto” - Leonard P. Liggio, Literature of Liberty, Summer 1982, vol. 5, No. 2 [1982]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Freedom of Assembly vs. “Heckler's Veto”

David G. Barnum

  • Department of Political Science, De Paul University

“Freedom of Assembly and the Hostile Audience in Anglo-American Law.” The American Journal of Comparative Law 29 (Winter 1981): 59–96.

Public conflict between rival factions (such as neo-Nazis and Jews) creates legal dilemmas concerning civil liberties in England and the United States. When passions are inflamed, insisting on the right to speak and assemble by some controversial groups may pose the nearly certain prospect of serious public disorder. Authorities confront the dilemma of either preserving order by preventing public demonstrations or guaranteeing the constitutional right to assemble against a hostile audience's “heckler's veto.” The author presents a comparative legal analysis of the English and American constitutional policy and practice regarding prior restraint of publically controversial speech and assembly; in addition, he surveys the legal considerations of police intervention and criminal punishment in respect to this issue. Important legal cases in England and the United States (such as the banning of a proposed Nazi march in the largely Jewish Village of Skokie, Illinois in May 1977) involving freedom of assembly issues are discussed in detail.

Under inflammatory conditions, the author believes that the constitutional right of freedom of speech may have to be temporarily subordinated to the needs of law enforcement and restoring public order. Under normal circumstances, however, the right to demonstrate should never be revoked or even curtailed simply because of threats from a hostile audience. Authorities should offer protection so that a hostile audience cannot exercise “a heckler's veto” over the right to speak and to assemble.

“The difficult issue arises when demonstrators insist on the right to express a message in public which is highly provocative.” In the United States, the Supreme Court has avoided deciding whether provocative demonstrators may be punished or prevented from doing so. At the present time, the law is sufficiently ill-defined to enable two lower courts in the Skokie litigation—the Federal District Court and the Illinois Supreme Court—to interpret the U.S. Supreme Court to mean that Nazis wearing swastikas have a constitutional right to conduct a demonstration in a Jewish community provided the demonstrators' message is nonpersonal in content.

The author's “preferable solution to the dilemma of the hostile audience” would allow the police and courts in America to decide whether the protestors' nonpersonal message had the “inherent capacity. . . to provoke a breach of the peace.” He believes the alternative of his criterion (the capacity of a message to provoke violence) would be to formulate some other independent criterion or “to establish as a matter of constitutional law that demonstrators are entitled to express any message they choose in public and be protected by the police.”