Counter-Demonstration as Protected Speech: Finding the Right to Confrontation in Existing First Amendment Law

The various modes of public assembly and petition play a vital role in the modem system of free expression.... IT]hey are of special and crucial significance for radical, unpopular or underprivileged individuals and groups. [P]ublic assemblies possess important advantages for effective expression that do not inhere in other forms of communication. They permit face-to-face contact between the speaker and his audience, thereby increasing the flexibility of the interchange 229. Id. (quoting Walter Lippman, The Public Philosophy-The Indispensable Opposition, THE ATL wrc, August 1939, at 189). 230. JOHN S. MILL, ON LBERTY 35 (Hackett Publishing Co. 1978) (1859). 231. Id. HeinOnline -23 Hastings Const. L.Q. 121 1995-1996 HASTINGS CONSTITUTIONAL LAW QUARTERLY and enhancing the power of the communication. For the participants they evoke feelings of solidarity and mutual support. For the audience they evidence the intensity and dedication with which the views expressed are held. 32 The same arguments apply with equal (if not greater) force to counter-demonstration, which presents participants with a particularly salient forum for enhancing the presentation of their message,2 3 3 bearing witness to the strength of their conviction,234 and engaging their ideological opponents in a direct contest of opposing viewpoints.235 In short, counter-demonstration is an apt example of the marketplace of ideas turned from abstraction into reality, where the proponents of opposing views are permitted to vie for public support while defending their position through their words, their conduct, and whatever message about their integrity (and the integrity of their beliefs) can be inferred therefrom. The benefits of open confrontation and dialectic are surely every bit as present in counter-demonstration as in other forms of provocative speech. Moreover, it is in no way evident that counter-demonstration presents a greater risk of public disorder than other forms of provocative expression protected by the First Amendment. 236 Even if a specific act of counter-demonstration did present a demonstrably greater risk to public safety than previously tolerated acts of provocative expression, that would not justify prohibiting counterdemonstration generally, any more than a greater threat of audience violence would justify a general ban on speech before hostile crowds. The obligation of authorities is often to defend the unpopular speaker from his censorial adversaries237 and-as is amply demonstrated by the Supreme's Court's holding in Forsyth County-that obligation is not changed by the degree of opposition the speaker may face. It may well be that a community would find it cheaper to silence a speaker or prohibit a demonstration than to furnish police or possible military protection. But the constitutional right cannot 232. EMERSON, supra note 190, at 286. 233. See supra notes 41-54 and accompanying text. 234. See supra notes 55-56 and accompanying text. 235. See supra notes 37-40 and accompanying text. 236. In fact, the hostile audience cases (see supra notes 117-156 and accompanying text) present instances where the risk of public disorder was truly staggering, but was held not to justify foreclosing free expression. In Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 133-36 (1992), for example, the Supreme Court held that the First Amendment would not permit local authorities to foreclose a protest march involving 20,000 marchers, 1000 counter-demonstrators, and 3000 law enforcement officers. See supra notes 125-128 and accompanying text. 237. See supra notes 150-156 and accompanying text. [Vol. 23:77 HeinOnline -23 Hastings Const. L.Q. 122 1995-1996 Fall 1995] COUNTER-DEMONSTRATION AS PROTECTED SPEECH 123 be measured in financial terms. Many aspects of democracy, including holding elections and granting due process in criminal trials, are more costly than other modes of procedure. Yet this has never been considered grounds for dispensing with the democratic process. [I]t would be an unusual situation if a determined showing of official force could not maintain order. If violence occurred despite such protection it would most probably be the result of willingness on both sides to incur it. Under these conditions violence would probably take place anyway, whether or not it was preceded by a public assembly. 238 The essential "bargain" presented by counter-demonstration is the same as presented by other forms of provocative speech. The clash of conflicting ideas advances the search for political truth. The cost of this dialectic is the risk of civil disorder. In every modem case where courts have been confronted with this bargain, they have opted to protect expression whenever practical. The result with respect to counter-demonstration should be the same. 2. Non-Consequentialist Principles Non-consequentialist limitations on the power of the state to regulate free expression compel a similar conclusion. The most basic of these limitations-the rights of citizens to express dissent and confront the government with grievances-is deeply implicated by limits on provocative speech. If the right to 'free expression is to remain in any sense a right, then it cannot be subject to the whim of a speaker's opposition, to be withheld every time an angry crowd murmurs dissent. "To cut off expression when a hostile group creates a clear and present danger of disorder is to entrust enjoyment of constitutional rights to the opposition, and indeed to encourage violence and disorder in public assemblies. '239 Another significant non-consequentialist limitation on state regulation of provocative expression is suggested by Scanlon, who questions the legitimacy of any regulation that would prohibit speech to avoid incitement based on the acceptance of or reflection upon ideas expressed by the speaker. 238. EMERSON, supra note 190, at 34041. 239. EMERSON, supra note 190, at 326 (criticizing shortcomings in the Brandenburg articulation of the clear and present danger test). HeinOnline -23 Hastings Const. L.Q. 123 1995-1996 HASTINGS CONSTITUTIONAL LAW QUARTERLY If I were to say to you, an adult in full possession of your faculties, "What you ought to do is rob a bank," and you were subsequently to act on this advice, I could not be held legally responsible for your act, nor could my act legitimately be made a separate crime. This remains true if I supplement my advice with a battery of arguments about why banks should be robbed or even about why a certain bank in particular should be robbed and why you in particular are entitled to rob it.24 The reason why advice, even the advice to commit a crime, should not give rise to criminal sanction (even if heeded) is that the auditor's reflection upon the wisdom of the advice, and not the advice itself, is what motivates the auditor to act. A person who acts on reasons he has acquired from another's act of expression acts on what he has come to believe and has judged to be a sufficient basis for action. The contribution to the genesis of his action made by the act of expression is, so to speak, superseded by the agent's own judgment. 4' The intermediation of reason on the part of the auditor leads Scanlon to conclude that any principled restriction of free expression that takes seriously the autonomy of the individual would not justify limiting expression "where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the expression led the agents to believe (or increase their tendency to believe) these acts to be worth performing. ''242 Scanlon's principle encapsulates, as a general rule, the repeated decisions of the Supreme Court that prohibit foreclosing expression because the opinion expressed is likely to motivate the auditor to action. This is true whether the opinion expressed is feared as provocative by its power to incite the willing, or its repugnance to those who hear it.243 In either case, prohibition is illegitimate if it seeks to foreclose speech because it has the power to change minds. To hold otherwise and to assume (consistent with the spontaneous combustion thesis) "that every expression of a provocative idea will incite a riot,"'244 is to 240. Scanlon, supra note 216, at 212. 241. Id. 242.. Id at 213. 243. In Texas v. Johnson, 491 U.S. 397 (1989), for example, the Court explicitly held that "'if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection."' Id. at 409 (quoting FCC v. Pacifica Found., 438 U.S. 726, 745 (1978) (Stevens, J., concurring)) (emphasis added). Likewise, with respect to incitement to violence, expression may be curtailed to preserve order only where lawlessness is both the imminent and intended result of the provocation. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 244. Johnson, 491 U.S. at 409. [Vol. 23:77 HeinOnline -23 Hastings Const. L.Q. 124 1995-1996 Fall 1995] COUNTER-DEMONSTRATION AS PROTECTED SPEECH 125 view listeners as automata, incapable of directing their own misdeeds.24 The Supreme Court has expressly rejected such a view with respect to other forms of provocative speech, and the reasons for such a rejection apply with equal force to counter-demonstration.