The Heckler’s Veto

A fellow holds an opinion contrary to general public opinion. He declares that opinion in public, arousing the ire of passersby, who gather about him, blocking the sidewalk and spilling into the street.

The police arrive. They arrest … the fellow holding the contrary opinion.

Bzzzzt.

The position of the police and of the district attorney is that, by holding forth on a controversial subject, the fellow knew he would create a disturbance, and therefore is liable to prosecution for disturbing the peace and blocking pedestrian and vehicular traffic — even though the disturbance and the blockage came from those who opposed the fellow’s position, none of whom were arrested.

Bzzzzt.

It’s autocratic states that prosecute people for holding controversial opinions, not the US. It’s dictatorships, or repressive governments, who consider creating a public disturbance through one’s opinions to be a crime.

If folks were standing in the street or blocking the sidewalk, they were the ones who needed arrests or citation, not the person they were, in turn, protesting.

And, frankly, it doesn’t make any difference what the fellow’s opinion was about. The First Amendment doesn’t protect just popular speech. It most particularly protects speech that is unpopular.

The defendant says he is being punished merely for expressing unpopular views in a public place. The judge, however, insists that his views are not at issue. “It is the reaction which speech engenders, not the content of the speech, that is the heart of disorderly conduct,” he declared. It’s reasonable to assume, said the judge, that he knew he was going to create “public inconvenience, annoyance or alarm.” By his thinking, if someone becomes disorderly because he’s angry over what Harvey said, then Harvey rather than his listener is in violation of the law.
But the 1st Amendment does not protect Harvey’s right to say only things that won’t upset anyone, or to say them only in places where no one will care enough to stop to listen.

No freedom is absolute, and there are plenty of ways that the fellow could have expressed his opinion that would warrent arrest or citation (if he chose to stand in the middle of the street himself and do it, for example). But being arrested and prosecuted for voicing an opinion that disturbs people and causes them to act in a disorderly fashion strikes me as just plain wrong.

Bad show, New York.

(Via InstaPundit)