Frederick Schauer

Costs and Challenges of the Hostile Audience

PUBLISHER
Notre Dame Law Review
DATE
2019
 

Abstract

In my own newly famous city of Charlottesville, Virginia, as well as in Berkeley, Boston, Gainesville, Middlebury, and an increasing number of other locations, individuals and groups engaging in constitutionally protected acts of speaking, marching, parading, protesting, rallying, and demonstrating have become targets for often-large groups of often-disruptive counterprotesters. And although most of the contemporary events have involved neo-Nazi, Ku Klux Klan, and other white supremacist speakers who are met with opposition from audiences on the political left, it has not always been so. Indeed, what we now identify as the problem of the hostile audience has often involved more sympathetic speakers confronted by less sympathetic audiences. Yet although the issue is hardly of recent vintage, contemporary events have highlighted the importance of reviewing the relevant constitutional doctrine and of thinking again and anew about how, if at all, the government and the law should respond to the disruptive audience. Indeed, the immediacy of the issue is exacerbated by the way in which existing legal doctrine on the question is less clear than is often supposed. It is now widely believed that restricting the speaker on account of the actual or predicted hostile and potentially violent reaction of the audience gets our First Amendment priorities backward. But it is hardly clear that this belief was ever correct, and, even if it were, it is even less clear that it is sufficient to deal with the constitutional and policy complexities of many of the contemporary encounters. It seems appropriate now to revisit this problem of the hostile audience, not so much to urge a change in existing understandings and legal doctrine as to emphasize how many open questions still remain, and how current events might bear on possible answers to these questions.

Citation

Frederick Schauer, Costs and Challenges of the Hostile Audience, 94 Notre Dame Law Review 1671-1698 (2019).
 

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