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The Heckler's Veto
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On Feb. 7, 1946, Arthur Terminiello, a Roman Catholic priest who was a fierce opponent of communism and believed that President Harry Truman was too comfortable with it, gave an incendiary speech in a Chicago hall that his sponsors had rented.

The hall held about 800 people, but nearly 2,400 showed up. Father Terminiello’s opponents outnumbered his supporters by a 2-1 ratio. The atmosphere in the hall was electric, with almost everyone present taking sides for or against this priest — all under the watchful eyes of Chicago police.

The speech delighted the priest’s supporters and enraged his detractors. When it became apparent that violence might break out, the Chicago police approached Terminiello while he was speaking and asked him to stop and leave the building.

He refused to leave and resumed his speech. The police prediction soon came to pass. The fiery priest ignited the hatred of his adversaries, many of whom seemed to have come to that venue to silence him. The shouters hurled chairs, rushed the stage and attempted to attack him.

The police safely escorted Terminiello out of the hall and then, in the presence of the many rioters who by now had spilled out onto a public street, arrested him for inciting a riot. The charge was defined in Illinois in the mid-1940s so as to criminalize any behavior that intentionally arouses the public to anger or brings about public unrest.

The police did not arrest any of the rioters who smashed windows, destroyed the stage and assaulted the priest. They saw him arrested for his words that they hated.

Terminiello was tried and convicted. After his conviction had been upheld by the Illinois Supreme Court, he appealed to the U.S. Supreme Court, which reversed his conviction. In so doing, the high court saved the First Amendment from authoritarian impulses that sought to narrow its scope, and it ushered in the modern judicial understanding that has informed the present-day parameters of the freedom of speech.

The ruling generally barred the punishment of speakers who are expressing political opinions and held that the First Amendment needs breathing room; and breathing room contemplates that some people will hate what they hear and articulate that hatred.

The court warned the police against permitting audiences to silence speakers — what lawyers and judges call “the heckler’s veto.” Thus, the police today cannot throw up their hands and permit a speaker to be silenced as they did to Father Terminiello. They have an affirmative obligation to take all reasonable steps to protect the speaker’s right to speak, the audience’s right to hear and the protesters’ right to protest.

Fast-forward to last Saturday, also in Chicago, when Donald Trump canceled a rally and said he did so because he feared that protesters would disrupt it and some folks might be injured. Was this an example of the heckler’s veto?

The legal issues here are complex and subtle, involving property rights and free speech. As a lessee of a government-owned building for his rally venue, Trump could not prevent any person from entering or remaining because of the person’s political views.


However, he could have asked the police to employ reasonable force to remove those whose behavior made it impossible for him to use the venue for the principal purpose for which he leased it. Since the First Amendment requires breathing room, the police must be extremely tolerant of protesters and may remove only those whose behavior physically prevents the use for which the venue was leased.
Stated differently, protest of political speech is itself protected speech, but protest cannot be so forceful or dominant that it vetoes the speaker.

What about the allegations that Trump himself is responsible for the violence at some of his rallies? If Trump publicly demands violence and there is no time or ability for any speech to neutralize his demands and the demanded violence takes place, his speech is unprotected — and he can be prosecuted for incitement to riot. This is the modern rule that holds that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut or neutralize it.

When there is no time between the demand for violence and the responsive reactive violence, the speaker is liable for the violence he demanded. But if there is time for more speech to counsel against the violence, even if no neutralizing speech is actually uttered, the speaker cannot be prosecuted. And before any prosecution for speech may commence, the court must eliminate every possible lawful interpretation of the speaker’s words.

All these rules further the whole purpose of the First Amendment. It is to recognize, codify and protect the natural human right to form thought and to express the thoughts, and to encourage open, wide, robust, challenging speech about the government, uttered without a permission slip, free from government interference and without personal hesitation.

In the case of the canceled Trump rally last weekend, many fingers have been pointed. The Chicago police claim they never advised Trump to cancel. The Secret Service claims the same. Trump says he was the victim of ideologically driven fanatics who wanted to silence him, just as their predecessors did to Father Terminiello. If there is ever litigation over this, a jury will decide the facts.

But the law is clear. The First Amendment tolerates the maximum possible public discourse, disagreement and confrontations; and it commands the government to protect the values it embodies.

Copyright 2016 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, Freedom of Speech 
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  1. fnn says:

    Almost certainly, these terrorists were mainly Jewish:

    “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.

  2. I am glad to see Napolitano writing about this. It needs to be said. I only wish the general public would be more aware of it. The press and networks will not help, preferring to imply that Trump is somehow responsible for the actions of those who would veto his speech.

    Almost always in this country it is the left that silences the right. Too many times Mr. Trump is interrupted in this manner. He was wise to cancel Chicago, for it was set up by the left (and facilitated by mainstream operatives) to turn into something much worse than it became. A full week before the event, I was reading about community leaders organizing to infiltrate and disrupt the rally in large numbers.

    Protestors have the right to protest, but not to infiltrate and interfere with other people’s meetings. What they do outside a venue is okay. What they have been doing inside is not.

    The responsibility for the FEW, unfortunate scenes that have played out (and which are magnified by media) is entirely that of the anti-Trump operatives and their useless idiots. If you shout unpopular things when you are surrounded by thousands of people who share a common purpose, you are tempting fate, no matter how good their leader is. Your are lighting a match in a pile of kindling. You are the idiot. What you are doing should be as illegal as the proverbial shouting of “fire” in a crowded theater.

  3. Donna says:

    then why did the police forcefully evict Ray McGovern from Hillary Clinton’s speech in 2011? He was simply standing silently with his back to her. He was not disrupting her speech. All of these legal niceties are useless unless the police follow the law.

    • Replies: @Exudd1
    , @Exudd1
  4. Exudd1 says:

    Excellent point/question. Thanks.

  5. Exudd1 says:

    Excellent point/question. Thanks.

  6. Wow, I didn’t know about this. So, in 1946 a mob attacks a Priest for making an anti-communist speech. He’s assaulted and almost killed, and the Chicago Police – arrest Him!

    Chicago hasn’t changed much.

    • Replies: @Buzz Mohawk
  7. @Honesthughgrant

    Chicago hasn’t changed much.

    Most corrupt city in America.

    Home of Barack Obama, America’s first black president, who began his politcal career there as a community “organizer” (disruptor).

  8. unit472 says:

    Unfortunately , the right of assembly and to free speech is curtailed far more by intimidation than by overt violence. I suspect Trump will draw fewer people to his rallies now as a result of what happened in Chicago just as the leftist organizers intended.

    Most people with a casual interest in politics are not willing to become street fighters and battle leftist mobs over their right to attend a candidates rally. Even displaying a bumper sticker can be problematic in the US. I had a Dornan for President bumper sticker defaced and my car ‘keyed’ years ago. Fortunately I acquired some bumperstickers from the Lyndon Larouche group which proclaimed ‘AIDS IS A GIFT FROM THE FAIRIES’ and “HONK IF YOU HAVE AIDS” which I applied to vehicles with leftist bumper stickers in the hope that their own kind would vandalize their cars!

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