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Is heckling a right?

By Ben Harris · February 18, 2010

The Council on American Islamic Relations thinks so. The group, along with the National Lawyers Guild (according to its website, a group that is an "effective political and social force in service of the people") has publicly come out and defended the rights of the students arrested at the University of California, Irvine last week, saying that interrupting Oren "falls within the purview of protected speech." This follows a public call for an inquiry by the Muslim Public Affairs Council, whose executive director, though a little more circumspect than CAIR, also described the arrested students in glowing terms, as individuals with "the courage and conscience to stand up against aggression."

It's all further evidence of my suggestion this week that, when it comes to free speech, as in matters of war, the strong do what they can and the weak do what they must. 

Inside Higher Ed decided to probe this issue a little more deeply: Is heckling a right protected by the Constitution? Most scholars, they report, say no. 

"That's definitely not free speech," Jarret S. Lovell, a professor of politics at California State University at Fullerton, said of the interruptions at Irvine and similar tactics elsewhere. Lovell is a scholar of protest and the author of Crimes of Dissent: Civil Disobedience, Criminal Justice, and the Politics of Conscience (New York University Press).

Not only does Lovell think the tactic is wrong in that it denies a hearing to whoever is being interrupted, but he thinks it fails to win over anyone. "When you only hear sound bites" from those interrupting, the students come off as intolerant, he said. "There are so many better ways to demonstrate."

But the CAIR representative in Los Angeles, Hussam Ayloush, held his ground. 

Ayloush noted that he is frequently interrupted when he gives lectures, and that it goes with the territory. "We firmly believe that both the representative of the foreign government had the full right to speak and the students being addressed have the right to express their speech, too," he said.

Asked why it might not be better to organize protests with a rally outside or leaflets or signs that don't interrupt a talk, Ayloush said such approaches might well be better, but that this was beside the point and that he wouldn't exclude the heckling strategy used at Irvine. "These are all tactics and different methods of expressing their free speech, and everyone might have their favorite," he said. "The First Amendment was never intended to be exclusively polite and courteous."

The article also notes that the University of Michigan has a policy that, to a degree, protects heckling provided it doesn't result in "undue interference" with the speech. I suppose one could argue about whether the Irvine hecklers unduly interferred with Michael Oren's right to speak. They certainly interefered, but Oren also did manage to finish his speech, though it was also quite annoying.

Irvine's policy is arguably more restrictive: Free speech is protected so long as it does not "interfere [no use of the modifier "unduly"] with the right of the University to conduct its affairs in an orderly manner and to maintain its property, nor may they interfere with the University's obligation to protect rights of all to teach, study, and fully exchange ideas." Separately, the where, when, and how free speech is excercised is to be governed by "orderly behavior and the normal conduct of University affairs." In other words, order comes first. 

So my question is: If the CAIR/MPAC crowd is right, and the Constitution does indeed protect the right of hecklers to heckle, wouldn't the policies of Michigan and Irvine (and, one assumes, many others) be unconstitutional?