1.

Free speech is noisy and disheveled. At any given moment, it puts on parade a disconcerting variety of images, utterances, propositions, and ideas, few of them sitting tidily with any of the others—whether in their order or in their consistency or as part of a well-defined dialectic. Free speech is willful and boisterous. A free market in ideas—if that is what we want—ought to sound like a cacophony of carnival barkers and not a laborious Rotary Club debate. Free speech means high-spirited people shouting out what matters to them and what they don’t like about what’s being said by other people. They do so of their own will and usually without anyone’s permission. At any given moment, free speech should give the impression of being about to get out of hand. Certainly it ought to be disconcerting. And, in a community of high-spirited individuals, free speech should be fun.

In this essay, I want to say a few encouraging things about this boisterous vision of free speech. I shall use this vision to criticize some of the ways in which we attempt to manage and discipline the free expression of ideas. Free speech, I shall argue, should not be managed; we should not expect it to be manageable. And by this, I don’t mean only to embrace Robert Post’s idea that it should not be managed in the service of some institutional goal. I also mean that in general there are dangers in trying to manage free speech along the lines of orderly traffic regulations, with each speaker taking her turn through a congested intersection of ideas.

2.

How we think about free speech is partly a matter of how we think about rights in general. People get awfully solemn when they talk about rights. Our rights, we say, are sacred: Thomas Jefferson said that we have been endowed with them, inalienably, by our Creator. But even if our rights are sacred, they don’t have to be approached with reverence; their exercise doesn’t have to be hushed or holy. Rights are important, but their exercise should not be like a quiet devotion (except, maybe, when the right in question is a right to quiet devotion).

We say that all our rights are based on human dignity. But as Michael Rosen pointed out in an excellent book, there is a distinction between dignity as a foundational value and a stultifying sense of having to be or look dignified. Dignity needs to be taken seriously, but we do not need to take ourselves or our actions too seriously in order to do that. True, some of the rights based on human dignity are deadly serious, like the right not to be tortured. But other rights convey or assume a greater sense of activity and exuberance for all in that they are serious in the sense of important. Freedom of assembly does not necessarily mean a silent procession; the right to be secure in one’s home or habitation doesn’t mean sitting quietly in a locked and darkened room; a right to procedural due process is a right to make a fuss where necessary, a right to press questions, and a right to insist on putting one’s case before the authorities as forcefully as possible, not a right to sit as a passive congregant in a solemn juridical liturgy.

Even religious rights that are devotional in their content—freedom of worship etc.—can involve noisy joyous singing and dancing; it will be a sad day for religious liberty indeed if its exercise is held appropriate only in the setting of a quiet and dimly lit sanctuary. As Pierre Bayle acknowledged, in a diverse society crowded with different forms of religious observance, decorum may be the first thing to go. He considered and dismissed, as an objection to religious toleration, the claim that it would “throw the State into all kinds of Confusion, and produce a horrid Medly of Sects.” Sure, if a “Multiplicity of Religions” were to be tolerated, it would be like a noisy marketplace, characterized by

an honest Emulation between ’em which shou’d exceed in Piety, in good Works, and in spiritual Knowledg. The Strife among ’em wou’d only be, which shou’d most approve it self to God by its Zeal in the Practice of Vertue, which out-do the other in promoting the Interest of their Country. . . . [I]t’s manifest, such an Emulation as this must be the Source of infinite publick Blessings. . . .

And it would impose upon our attention (and on God’s) a “Consort of different Voices, and Instruments of different Tones.” But the diverse, gaudy, and vociferous character of such liberty would be “as agreeable at least as that of a single Voice,” whether it was the one voice imposed by the state or the “one voice at a time” decorum of a properly managed form of freedom of worship.

3.

Here is another point about rights in general. Every right I have should be thought of as being held and exercised not just by me but by thousands, indeed millions of high-spirited individuals, who despite the universalism of their human rights differ from one another in innumerable ways.

Some rights are exercised by each of these millions of persons individually—millions of individual exercises. Others are interactive in character and involve necessarily some relation between your rights and my rights. The right to marry is an example: People do it in twos. The right to freedom of assembly brings rights-exercisers together in their thousands according to a common plan. The right to vote makes no sense if it is divorced from a large-scale political community, where the exercise of each person’s right has to be counted and tabulated against the exercise of millions of others.

This last example illustrates an important point. Though many rights-exercises are cooperative with others (like freedom of assembly), often they are antagonistic: You vote for Trump; I vote for Hillary. Or in the earlier example: My exercise of the right to freedom of assembly is cooperative with the others assembling for the march in which I am participating, but it is also confronted antagonistically by a counter-demonstration by thousands of others also exercising their right to freedom of assembly. We compete with one another as we exercise our rights: We compete for space, we compete for attention, and we compete for influence.

4.

All this is true of freedom of speech. To begin with, what is envisaged is millions of opinionated people speaking their minds. But they don’t just do this as individuals—in the shower, as it were. We mostly don’t speak unless others can hear us. We hope for an audience, and we don’t open our mouths if there is no one nearby to listen. The right to free speech is a right to speak to or with (or at) others. If I figure things right, some of those I speak to will want to hear what I have to say. Some may interrupt with applause and shouts of encouragement. But other interruptions may be hostile: interruptions, cries of disagreement, or conventional expressions of disapproval like booing.

One way or another, it is to be expected that when I speak, someone else will want to speak too, to speak instead of me or in response to me. As well as the various noises—cheers, boos—I have mentioned, there may be interventions that are more articulate. People present when I speak may contradict what I say or express a different point of view, or make a point, or try to put what I am saying in a different light. They may even try to supplant my speaking with a speech of their own. Different people don’t just want to be heard saying things on their own account; they want to engage with my speech, to challenge and respond to what they hear me saying. And for my part, I may be more or less adept at dealing with these interruptions, sometimes responding spontaneously to my interlocutors—modifying my text in a way that takes seriously their interventions (or denounces or derides them)—and sometimes trying to ignore what they say.

5.

The interchanges I have been describing can be quite heated, back and forth, especially between speakers who have no great love for each other personally or politically. The antagonism may appear problematic, to an extent that seems to call for official intervention to ensure an orderly exercise of free speech rights. Any right whose exercise by many of its bearers involves this sort of antagonism seems to require some sort of ordering. Potential speakers, it may be thought, can’t just be left to their own devices talking across one another, yelling at each other, trying to shout one another down. Someone has to manage free speech so that all the rights-bearers—all potential speakers—can have their say.

Or at least that is one way of thinking about issues of interaction that arise in the context of speech. We manage or organize speaking so that everyone gets an opportunity to have their say, so that one person’s exercise of free speech rights is not permitted to drown out that of another. We don’t do this necessarily in the service of some instrumental goal. We may do it just to coordinate the exercise of rights. We might do it in the interests of securing a fair distribution of the opportunity to be heard. We may separate speakers in time or space—or both—such that the noise of the one does not interfere with or drown out the noise that constitutes the free expression of the other. Just as we do not permit rival groups or parades of demonstrators to occupy or even to try to occupy the same literal space in the public square, just as we separate distinct exercises of the right of free assembly, so (it is thought) we should intervene in the free speech arena to separate speakers from one another, so that Speaker A, who wants to interrupt Speaker B, is removed from the place where B is speaking or given the stage in the same place only after speaker B has finished. That way the respective audiences of A and B get to hear what they want to hear their favorite speakers say. Intervention along these lines stops some people from speaking exactly as they want to (when they want to, where they want to), but the interference is based on considerations of “time, place, and manner” and not on the content of what anyone wants to say. As such, the approach is consistent with the idea of fair but orderly exercise of free speech rights by myriad individuals.

In a moment I will say something about a less managerial approach to the problems that interaction gives rise to. But first a word about the form that our speaking takes. The medium of free expression makes a difference. Management of free speech is easier when the “speech” consists in the printed (or posted) word: hundreds of books or articles can appear in paper form and on the internet simultaneously, and it is up to the potential readers to sort through them, figuring out which ones they want to peruse in what order and which ones they want to have “interrupt” their reading of the others. We would not dream of suppressing some publications in the name of making the overall publishing environment fairer or more orderly. Those issues don’t really arise. If you publish a pamphlet espousing one particular view, I can publish a pamphlet espousing the opposite view more or less at exactly the same time. The physical difference between one piece of paper and another—or the virtual difference between one URL and another—ensures that all items can be put out there as a matter of free expression and that their antagonism will not necessarily lead to any one such item blocking or drowning out any of the others. The published or posted word doesn’t call for the management of time, place, and manner in the way that the spoken word requires. But with spoken speech, we do have to face up to the problem of one person’s speech interfering with another’s, as well as rival speakers grappling for platforms or—fairly or unfairly—for the attention of the same audience.

6.

So, how do we do this? It is natural to think that we have to navigate between two different scenarios. The first scenario, Cacophony, involves the unleashing of noisy disarray: interruptions, shouting, heckling, and competition. No one sits quietly to listen, and no one gets heard. The other scenario, Turn-taking, involves a well-ordered but ultimately deadening succession of individual speeches, delivered as though at a Rotary Club debate—each speech read carefully from a teleprompter and each received in silence, without any challenge or interruption. No one ever has to depart from their script. When one speech is over, speaker and audience depart, and a new speaker and new audience take their place in the same deadening spectacle.

Obviously the second scenario envisages a greater role for management. Someone has to order the speeches, set their timing, and suppress or eject anyone who breaks the rule about the silence in which each speech will be attentively listened to. It is a paradigm of “time, place, and manner” ordering of a kind that students of the First Amendment are quite familiar with. Speech is not regulated really by its content, except that there may be a principle of content alternation. Mostly, though, it is akin to traffic control, like a police officer or a set of lights at an interaction, with only one stream of traffic passing through at a time, however exhilarating a more anarchic progress might be. Turn-taking may not sound like fun, but the idea is that if the attention of management begins to fall off, the speech situation will lurch toward Cacophony and nothing will be heard. Turn-taking seems reasonable. As I have indicated, it is tempting to think that we have to deal with the problem of interaction with some sort of managerial intervention, assigning a succession of speakers to times and places that will preclude their interference with one another. This, it seems, is an obvious and reasonable model for the well-ordered exercise of the free speech right.

7. 

Academics, I fear, are attracted by Turn-taking since it is a principle that they use to structure their seminars or the “Q&A” periods of their lectures. They don’t want all their students speaking at once. Instead, those who want to “intervene” raise their hands, their names may be placed in some sort of “queue,” and they are called on one at a time. I won’t comment on the merits of this as an educational strategy; it’s a lazy method (and I say that with the confession that I use it myself). I do think we should be wary of extending it as a model for free speech in general, even as a model for speech on campus outside formal educational settings. The classroom context is governed by the overarching telos of education, which I think is mostly absent or can be postulated only in the most abstract terms for speech generally in society. The world of “student societies,” engaged as they are in high-spirited, provocative politicking, is not apt for this sort of management, nor is free expression in society at large.

8.

There are some settings where Turn-taking seems natural or intuitive. Proceedings in court are an example, where opportunities to speak are highly managed with a clear sense of the procedural due process values at stake. The antagonism that defines the parties’ presence in court, the issues of justice and fairness between them, and the substantive and dignitarianreasons for insisting that everything germane is heard—all this adds up to a powerful case for intensive ordering under the auspices of carefully thought-out procedural rules laid down in advance.

Yet even in court, there are times when we compromise Turn-taking with somewhat more cacophonous interventions: arguments and questions may be interrupted with objections, Justices on the Supreme Court may interrupt carefully timed oral arguments with a slew of questions and comments addressed both to advocates and to each other, and in a number of settings such as family court, interactions may be much less formal than, say, a criminal trial.

Even to the extent that Turn-taking is or remains characteristic of judicial proceedings, it would be unwise to extrapolate very much from it to the way we should govern the exercise of speech rights generally. Few scholars think of a trial as a paradigm occasion for free speech. Free speech values are present, certainly, but a trial is acknowledged as an exceptional setting.

9.

What about models of formal deliberation like Robert’s Rules of Order or the parliamentary order that is upheld in legislative chambers? Those forms of ordering have their place and may be particularly important for debate among strangers and adversaries where the immediate stakes of decision are very high. If the upshot of deliberation is going to be a binding rule or some other decision that affects people’s lives and livelihood and, if time for debate is short, then some sort of “traffic control” in the interests of both fairness and efficiency is likely justified. But even then, we can see space between Turn-taking and Cacophony. Compare the boisterous antics of members of the House of Commons in the United Kingdom at Prime Minister’s Question Time—Canada follows a similar practice—with the sedate succession of “Special Order” addresses in the U.S. Congress after formal proceedings have ended.

Prime Minister’s Question Time is characterized by shouted interruptions, roars of approval or disapproval even while efforts are made to mitigate its more cacophonous aspects from the Speaker’s Chair. And for all the noise and (to American ears) anarchy of this hour on Wednesday afternoons, questions and follow-up questions do get asked and answered and answers evaluated in the heat of high-spirited shouting. It is probably unfair to take Prime Minister’s Question Time as a paradigm of legislative debate in the Commons: Such debate is much more ordered, though there is both formal and informal provision for interruptions.

Equally, it would be unfair to present “Special Order” speeches in the U.S. Congress as a paradigm application of Turn-taking in American congressional business. A “special order” speech is delivered to an empty chamber after the end of the day’s legislative proceedings. The speech is heard in silence because no one is present except perhaps some staff members who work for the member who is speaking. No opponent responds; no opponent is present. If there is any virtue to the practice at all, it is that it offers legislators the chance to reach a television audience of his or her constituents. (It is probably important for this purpose that many constituents labor under some misapprehensions about the relationship between special order speech and genuine legislative debate.) Actual legislative debate is potentially more interactive: At least members from both parties are present in the chamber. But American legislators have evolved a norm of non-interruption except for points of order that make the spectacle depressingly close to Special Order speeches. It wasn’t always thus. (Consider the portrayal of speech in the House of Representatives in Steven Spielberg’s movie Lincoln.) And this was not just true in legislative engagement or in the consideration of constitutional amendments. Back in the day, heckling was a common and accepted feature of political meetings. “The heckling and harassment of public officials and other speakers while making public speeches is as old as American and British politics,” observed Mathew Torbiner in a 1970 judicial ruling. Skill with hecklers was an important part of any public speaker’s training. Politicians were used to it in the legislature, and they expected it on the hustings.

10.

Sometimes Turn-taking is used as the principle of a competition—that is, the activity known as “Debate,” as practiced in high schools and colleges all over the country. Small teams of students engage in discussing the merits of a given proposition. Speeches are carefully timed and delivered by team members on an alternating basis. One set of rules for high school debates that I have seen insists: “There cannot be any interruptions. Speakers must wait their turns.” (Actually, when I was a high school debater, making and managing interjections was part of the art of debating. But that was another time and another place—New Zealand.)

Sometimes a debate format may be used in a classroom setting as an educational device. Students might address some issue in civics or history by presenting the merits of rival positions. Whatever the intellectual and educational merits of debate as a “structured contest,” we should be wary of taking it as a paradigm of the exercise of speech rights. (It would be like taking high school football as a paradigm of exercise.) Equally, we should not allow the collegiate setting for education or formal contestation of this kind to determine the appropriate basis for managing political meetings on college campuses. Formal debate is a tiny subset of the exercise of free speech on campus, and its highly structured rules tell us next to nothing about how free speech should be managed or organized in campus settings that do not involve classroom teaching or team competition.

11.

I am using these various examples to expand our sense of possibility and the basis of a genuinely two-sided concern about what free speech might become. With just Cacophony and Turn-taking in play, each side tends to exaggerate the tendency of the other’s strategy. From a managerial point of view, every interruption intimates a cacophony, a drowning-out of speech. From the other point of view, every restriction upon response and interruption takes us further in the deadening direction of a series of set pieces, each delivered as a sort of lecture, heard in silent succession, with each speaker and her fans departing after her own speech, leaving the stage and the auditorium to the next speaker and his moment. No engagement, no interaction, no nothing. I fear that defenders of the managerial model are untroubled by this possibility; a succession of speeches heard in silence is exactly their best case for free speech: each interruption takes us away from that ideal and in the direction of cacophony. But perhaps we should be looking for something in between these two extremes: lively engagement, not deadening silence and not deafening cacophony.

Fortunately, Cacophony and Turn-taking are not our only options. We may think of an intermediate scenario, one that allows a lot of interruption and a certain amount of people speaking over one another. It might be modeled on conversation—not one of those parallel conversations, where each party simply waits for the other to draw breath or otherwise stop talking so that they can tell their anecdote or contribute their opinion, but a genuine back and forth—vigorous, unwieldy, and engaged. In ordinary exuberant conversation, when one person speaks with another, they take turns, certainly, but they also interrupt with informal responses and interjections that break the parallel rhythm. There are pauses for thought, and there are interventions running together. If one person disagrees vehemently with another, she may choose to wait until the other is finished or she may make her disagreement evident throughout in ways that, in turn, affect what the primary speaker is saying and the way that he develops his case. It is always possible to respond to an interruption with a “Let me finish” or with the retort that interrupting is rude, but there is nothing privileged about either of these responses. They too are part and parcel of the informal conversational to and fro. Not only that, but both interruptions and retorts are important. On the one hand, a misleading impression created by a speaker may need to be corrected right away or, at a minimum, a marker laid down for discussion. Or, on the other hand, sometimes a speaker needs to remind her audience that what is being said may take time to develop and that its import won’t become clear until the speaker has finished. And this too may need to be corrected or responded to. None of this is managed. Ordinary conversations do not have a referee, though sometimes third-party participants will intervene also with “Let her finish” or “Let him answer that.” All of this is thrown together into conversational rhythms that are both lively and awkward, as high-spirited individuals interact noisily with one another.

With this scenario in mind, we might have a better sense of affirmative possibility, not just the depressing scenario of an overmanaged series of performances. Like any golden mean, the Conversation scenario would help us order free speech, if ordering is necessary, with two nightmares in prospect, not just one, and with a consciousness that we can go wrong by overmanaging as well as undermanaging the clashes and interactions that free speech involves.

12.

I have said that the extremity of the Turn-taking scenario represents a best case for the managerial model. Actually, this may be unfair. In real life the managerial model need not place the highest value on a silent and passive audience. What is desired is an appreciative audience, one disposed to applaud the speaker’s applause lines and to stand and cheer—maybe even chant “Lock her up! Lock her up!”—when the speaker’s rhetoric calls for it. Interruptions like these are not seen as problematic by speakers or by defenders of free speech. They are valued, though not I think as instances of genuine engagement. A point to emphasize is that those who look forward to cheers and applause deplore any tendency in the audience to boo and object to a speech. Booing is seen as rude at best or as an interference that must be managed away; by contrast, rising to applaud, even multiple times throughout a speech, is a consummation truly to be sought. Indeed, the rhythms of the speaker’s rhetoric are rigged to elicit exactly these interruptions; from the speaker’s point of view—certainly from the point of view of her speechwriters and the focus groups who have tested the product—the problem with hostile interruptions is not so much that they detract from free speech as that they mess with the rhetorical rigging.

This brings us to an important point. If one were to explain why heckling is met increasingly with intolerance in modern political meetings, the answer would have something to do with the rise of political choreography. Public addresses are no longer mere speeches. They are political occasions in which spoken word and audience response are choreographed for the television cameras. They represent an enormous investment by a committee of the speaker’s aides and supporters—an investment in precise rhetoric, command of the audience, cadences that tend to elicit applause at crucial moments, ceremonial staging, and so on. The last thing anyone involved in this spectacle wants is for these rhythms to be screwed up by importunate hecklers. Booing or heckling—a shouted question, an impudent interjection—means that the audience is not hearing exactly what the speaker wants them to hear in the order he presents it and exactly as he wants them to hear it. He loses the control over the event that his aides’ careful choreography presupposes. Commentators’ perspectives change, cameras move in to focus on the hecklers, the audience is distracted, and what people will talk about afterwards will be different. This is not what the speaker wants. From the speaker’s point of view, critical engagement with what is said, at the time it is being spoken, is inherently disruptive. Now, “disruptive” is not necessarily the same as “disorderly”: The disruption complained of will be disruption to the speaker’s choreography rather than to public order as such. But it is easy to present the one in the light of the other and to convince people that there is something inherently disorderly, perhaps even dangerous about an episode of booing or a few shouted interjections.

13.

Everything said so far, on both sides, treats antagonistic interruption as a form of speech and its relation to the speech being interrupted as the relation of one exercise of the right of free speech to another.

Not everyone regards heckling in this light. Some who oppose the sort of engagement that heckling involves and who demand that speakers be heard quietly without expressions of dissent do so not in terms of the ordered exercise of free speech like the ordering of rival demonstrations but in terms of the protection of speech from what they regard as pure obstruction. Thus, for example, Thomas Emerson maintains that

conduct that obstructs or seriously impedes the utterance of another, even though verbal in form, cannot be classified as expression. It has the same effect, in preventing or disrupting communication, as acts of physical force. Consequently it must be deemed action and is not covered by the First Amendment.

David Frum uses the following image to illuminate the character of what he calls the “forceful interruption” of public events: “If I see you reading a book that I dislike, I have no right to grab it from you.” In this light, the heckler may be regarded (in the words of Alexander Meiklejohn) as “a public nuisance, who must be abated, by force if necessary.”

A term sometimes used in this regard is “heckler’s veto.” If hecklers make it difficult for the speaker to be heard, they are thought of as exercising a veto on her speech, much like the operation of a prior restraint. I guess a continuous “wall of sound”—booing, chanting, loud rhythmic hand-clapping—lasting from the beginning of the occasion for the speech until its scheduled end might be regarded in this light. A problem arises however when the mere “disruption” of the speaker’s presentation is brought under this heading—interruptions that break up its rhythms and rhetoric, preventing it from having exactly the effect on the audience that the speaker (and her speechwriters) want it to have. This is not a veto, it is interaction, and it reflects the fact that when free speech is exercised in the presence of other intelligent individuals, its effects may not be those that the speaker would most like to elicit from a more appreciative audience. I think it is better to confine the phrase “heckler’s veto” to its technical meaning in constitutional law, referring to situations in which the authorities shut down a speech or a public meeting because of the violence they anticipate from people opposed to those who are scheduled to speak. Even in this technical sense, the phrase “heckler’s veto” gives rise to some difficulties, but at least it avoids the crude suggestion that any interruption or immediate response to the speaker from a member of her audience counts as a restriction of her freedom of expression.

Treating heckling as such a veto or viewing any interruption at all as an attempt to block another’s speech makes things too easy for those who favor a managerial approach. It relieves them of the challenge and the responsibility of reconciling the freedom of the primary speaker with the high-spirited engagement of hecklers and interrupters who want to contribute to the reception of the former’s ideas. At an extremity, heckling can get out of hand and can turn into an attempt to shut down an occasion for speech altogether. But there is no reason to see every interruption in that light. As the California Supreme Court once observed, “Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advancethe goals of the First Amendment.” At the very least they represent exercises of the First Amendment. And they have to be dealt with as such.

14.

In this essay I have emphasized free speech as an inherently interactive idea. We speak in order to engage, and also, we listen in order to engage. In the provision we make for free speech, we should be open to a variety of forms of engagement—from the sedate succession of speeches that I have associated with the Turn-taking scenario, to the boisterous and immediate back and forth that seems to some to be always in danger of toppling into Cacophony. Maybe there has to be some ordering, in some settings more than others. But it will be a pity if our attempts to order free speech lead to a domestication of it as an ideal and a taming of the energies that go into its challenging and raucous exercise.

 

© 2019, Jeremy Waldron.

 

Cite as: Jeremy Waldron, A Raucous First Amendment, 19-02 Knight First Amend. Inst. (Aug. 21, 2019), https://knightcolumbia.org/content/a-raucous-first-amendment-1 [https://perma.cc/KPL8-H2QH].