The Sanders Incident and Legal History

IN A PUBLIC meeting, what are the permissible limits of expression on the part of the speaker and the audience? If there is a free speech issue in the Sanders Theatre incident, this is it. And the answer is not simple, since it requires a balancing of the First Amendment freedoms of the speakers and the audience so as to protect both without endangering either.

In the aftermath of the Sanders cacophony some have argued that at a political rally anything goes short of actual violence. Just as the libel laws are relaxed for politicians and public officials, so their freedom of speech is limited by the right of the electorate to remonstrate with them at public rallies. They are as vulnerable, so the argument goes, to vocal as to printed abuse. This vulnerability is essential to ensure that the feelings of the citizenry are freely expressed to public officials whose control of the instruments of violence and disproportionate access to the communications media may tend to make the public debate too one-sided.

Professor Warner Berthoff expressed a similar point of view in a letter printed in the CRIMSON on April 1st. He wrote:

Like those on the platform those in the audience came to say something. They said it. In the circumstances of a political rally, wherever at happens to be staged, the right to shout down speakers is embraced by the same principle of freedom of speech and expression as protects the speakers in their effort to make themselves heard.

Teaching Fellow Steven Kovacs put a similarly broad construction on the audience's right of expression at a political gathering. "When," he wrote, "has lack of courtesy been a crime? Prosecuting students as criminal offenders for successful antiwar protest is a blow by the Administration against their own students..." (CRIMSON, April 1). The argument about audience rights is accompanied by a claim that one of the speakers forfeited any privilege to speak he might have had by hurling obscenities at the audience. Since he incited the crowd, he is to blame for the consequences.

Indeed, one graduate of the Harvard Law School suggested that the very presence of the pro-war speakers on campus was an incitement. "Bringing in pro-warriors to a militantly antiwar campus," wrote B. Ko-Yung Tung, "logically results in disruption. Therefore, it is the pro-war speakers and their sponsors who... provoked the resultant disruption." (CRIMSON, April 13, 1971.)

HOW VALID are these arguments? Are "disturbances" at a political meeting a legitimate exercise of free speech? Are both speakers and audience free to express whatever opinions they wish as they feel? Or is one freer than the other? If blame is appropriate, who should be arrested-the speaker for inciting or the audience for disrupting? A discussion of these questions need not be hypothetical. Federal and state court cases on these issues go back to the nineteenth century. A large body of constitutional precedent has grown up around these problems. Because they involve competing rights and often chaotic situations, such disputes have often brought split decisions. These disagreements have engendered lengthy opinions and dissents. An examination of this judicial history will provide a useful perspective on the present debate over the meaning of the Sanders incident.

Limitations on the Audience: Disturbing a Public Meeting.

The Massachusetts statute on disturbance of a public meeting reads as follows: "Whoever willfully interrupts or disturbs a school or other assembly of people met for a lawful purpose shall be punished by imprisonment for not more than one month or by a fine of not more than fifty dollars," The only case under this statute ever to reach the Massachusetts Supreme Court occurred in 1854. The opinion handed down by Justice C. J. Shaw has often been cited in subsequent cases as a guide to the legal definition of a "disturbance."

In this case, three men were indicted for disturbing a temperance meeting by "coughing, laughing, whistling, and talking in a loud and boisterous manner." Their counsel argued that the statute should extend only to meetings authorized by law, such as school classes and town meetings, and not "to all the noisy political gatherings of the times." In these, he felt, citizens could express their feelings as they wished. Justice Shaw disagreed and explicitly interpreted the statute to include political gatherings, meetings for amusement, and all public meetings held for lawful purposes. He waxed eloquent on the right of performers and promoters licensed by the state to be protected against wilful disturbances. Otherwise, he said, "a few ill-disposed persons... by tin horns, cracked kettles, and other loud and discordant sounds, as well as by vociferation, might destroy the effect of the most pathetic tragedy, or the sublimest oratorio."

On the question of exactly what constituted a disturbance, he penned a paragraph that is still the basic text for such cases:

What shall constitute an interruption and disturbance of a public meeting or assembly, cannot easily be brought within a definition, applicable to all cases; it must depend trere-what on the nature and character of each particular kind of meeting and the purposes for which it is held, and much also on the usage and practice governing such meetings. As the law has not defined what shall be deemed an interruption and disturbance, it must be decided as a question of fact in each particular case; and although it may not be easy to define it beforehand, there is commonly no great difficulty in ascertaining what is a wilful disturbance in a given case. It must be wilful and designed, an act not done through accident or mistake.

The cases that have arisen under similar statutes in other states have been relatively trivial. For the most part they have involved disturbances of religious meetings. In a religious meeting, the standards for decorum, of course, are higher than at a political meeting. Therefore, these cases are only a loose guide to the "customs and usages" of a political gathering. Even in a church, however, certain protests have been held to be a legitimate exercise of free speech even if they interrupted the service.

Where a preacher used the privilege of the pulpit to vilify members of the congregation as coming from "the lowest down scrapings of the earth," the Georgia Court of Appeals held that vigorous protest by the targets of the abuse was justified. The disturbance of the service, in effect, was the fault of the minister for inciting the congregation. ( Jackson us, State. 1918 ) In Gaddis us. State (1920) the Supreme Court of Nebraska held that certain interruptions of a religious service, even in the absence of personal insult, did not amount to a disturbance.

The exercise of free speech protected a member of the Christian Church of Beaver City, Nebraska who, "in a becoming manner" and in keeping with "the precepts and usages" of the church, interrupted the preacher to contest a point of religious doctrine. The impromptu sermon was held to be legal even though it caused a commotion in the church. But it was held to be a disturbance of worship for one faction of a congregation to enter a church while another faction was worshipping there and to inform the minister of the rival faction that he could not preach there that day. ( Morris us. State, Alabama, 1887.) Such behavior evidently crossed the line between reasonable interruption and unwarranted disturbance.

These few cases comprise most of the extant case law on audience rights. Since they date back more than fifty years and primarily concern religious meetings, they can only be suggestive for current problems. There do exist, however, two recent cases that examine the issues discussed by Judge Shaw in a contemporary context.

On October 22, 1963, a group of 47 people led by two clergymen stood up during a presentation of a zoning question at a meeting of the Omaha City Council and began singing "The Star Spangled Banner." After finishing the National Anthem, they marched around the council chamber singing "We Shall Overcome." The Council president asked them to desist. When they refused, he had them arrested for disturbing the meeting. The clergymen argued in court that their behavior was an act of conscience in the face of the refusal of the Council to enact a civil rights ordinance. Their demonstration, they contended, was a statement of moral feeling protected by the First Amendment right to petition for redress of grievances. The Court rejected their plea. Recognizing that what constitutes a disturbance is contingent upon circumstances, the Court held that interruption of the orderly process of city council proceedings violated the customs and usages of such a meeting. No matter how moral the motivation of the defendants, the action, premeditated by the clergymen and expressly ordered to cease by the presiding officer, was impermissible. Expression of views by the audience in a legal hearing, it appears, is limited by the canons of decorum in such a setting.

BUT WHAT of meetings held in a less formal setting and for political purposes? On July 4, 1968, Congressman John Tunney gave a campaign speech at an Independence Day celebration in Dateland Park, Coachella, California. A group of Mexican-Americans in the crowd of 6000 "engaged in rhythmical clapping and some shouting for about five or ten minutes" during the speech in protest against Tunney's refusal to support the grape boycott. Tunney finished his speech despite the protest, pausing to urge the demonstrators to be grateful that they lived in a country that allowed such protest. Neither Tunney nor the police asked the demonstrators to be silent or to leave. Nor did their actions prevent the rest of the crowd in the park from hearing Tunney's speech. Four of the demonstrators were convicted of disturbing a public meeting and sentenced to four months in jail. The Supreme Count of California, in reversing the conviction, presented a detailed discussion of the First Amendment freedoms of the audience at a political rally.

The Court emphasized that audience behavior, though "impolite and discourteous," can nonetheless advance the goals of the First Amendment. An unfavorable reception given to a public figure is an important method by which citizens can forcefully make their views heard and achieve a change in policy. "The very possibility of adverse audience reaction," wrote Justice Tobriner, "may aid in the corrections of evils which would otherwise escape opposition." He continued. "The right to free expression articulated through 'disturbances' that are no more than announced differences in ideology or beliefs lies at the heart of the First Amendment."

In order to protect the rights of expression of all those present at a meeting, the Court held that a criminal disturbance existed only when the conduct of the meeting was "substantially impaired" by acts committed intentionally in violation of the customs and usages of the meeting. What constituted impairment would vary from case to case. "Prolonged, raucous, boisterous demonstrations" were customary at political conventions but would violate the customs of a church service. In an outdoor political meeting, "nonviolent demonstrations of political views" are acceptable.

The Court freed the defendants for three reasons. First, the meeting was not substantially impaired. Second, no warning was given that defendants' conduct violated the customs of the meeting. Third, no evidence of actual intent substantially to ampair the meeting was produced.

This case indicates that intent, warning, and substantial impairment must be present to sustain a disturbance conviction at a public meeting. Therefore, if the same Court were to consider the Sanders incident, they would probably ask: did the defendants intend their expression of views substantially to impair the conduct of the meeting and were they given warning to cease at the time? Since the meeting occurred indoors in a university and was not a campaign rally, the Court, were it to hear such a case, might feel that the customs and usages of such an event would warrant a narrower definition of permissive conduct than applied in the Tunney case.

The rights of an audience to free expression, according to this survey of judicial opinion, are considerable but not limitless. Ft the behavior of the audience violates the customs, of a meeting, warning is given, and intent to disturb is evident, the protections of the First Amendment have reached their limit.

Limitations on the Speaker: Disorderly Conduct.

Like the audience, the speaker too cannot transgress certain boundaries. The Supreme Court has ruled that if a speaker creates a "clear and present danger" of a substantive evil that the state has a right to prevent, he can be silenced or arrested. Such a test very much depends upon circumstances since language provocative in one context might be applauded in another. The burden, however, appears to lie with the speaker to avoid inciting to riot or using language that would cause an average man to fight. According to a Note in the Harvard Law Review (1967), "If the varying nature of audiences can be taken into account, very slight taunting may be enough to withdraw constitutional protection under some circumstances." The mere appearance, however, of a speaker in a community unfriendly to his views is not evidence of provocation. When violence or disorder result solely from audience hostility, the police must ordinarily seek to restrain the crowd, not arrest the speaker.

THE ASSIGNMENT of responsibility in a chaotic situation, however, is often difficult. In Feiner us. New York (1950), the Supreme Court upheld the conviction of a speaker for disorderly conduct on the grounds that his soapbox talk inflamed his audience to the point of violence. Feiner was speaking to a racially mixed audience and "gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights." When an aroused member of the audience told a police officer at the scene, "If you don't get that son of a bitch off, I will go over and get him off there myself," the officer asked Feiner to stop speaking. He refused and was arrested.

A majority of the Court felt that the imminence of violence and the provocative words of the speaker justified the police action. Justices Black and Douglas dissented. They argued that Feiner deserved protection from a hostile audience and that the threat of one man to assault the stage did not indicate disorder. If anyone was to be arrested, it should have been the angry member of the audience. Black cited testimony which claimed Feiner had exhorted the crowd to go "arm in arm" to a Young Progressives of America meeting, rather than to "rise up in arms" as a majority of the Court held.

Both the opinion and the dissent, however, indicate that for a charge of incitement to be plausible, the expressed hostility of the audience must be a consequence of the speaker's words, not merely his presence. And these words must be shown to have been the cause of the riotous behavior of the audience. The possible provocation of the speaker by the audience, one might also add, must be taken into accountsince "fighting words" can presumably be hurled in either direction.

When competing First Amendment freedoms are at stake, blanker statements are usually inexact. As often as not, the decision of a court hinges on a careful examination of facts and these vary from case to case. The dilemma of satisfying equally legitimate yet potentially conflicting rights accounts for the care with which the courts have discussed these issues and the diversity of opinion on them.