Legal Commentary

Irving Feiner died last month at the age of 84. Feiner was the defendant/petitioner in Feiner v. New York, the 1951 decision in which the Supreme Court upheld a conviction of a public speaker for disorderly conduct based on the audience's angry reaction to the speech. The case formally remains good law, although it generally gets taught along with Terminiello v. Chicago, which came out the opposite way in a situation involving a legitimate riot and the general view has become that Terminiello was right and Feiner dead wrong. The Court has basically recognized that a "hecklers' veto," a negative audience reaction to speech, is not a basis to restrict speech, although the principle is not always enforced vigorously enough for my tastes in the lower courts. And the modern definition of incitement should exclude a speaker who says things that cause listeners to become angry at the speaker, as opposed to convincing listeners to agree with the speaker and to act unlawfully. Thus, Feiner's position ultimately prevailed, even if too late.

The obituary says that Feiner, at the time a junior at Syracuse University, was kicked out of school and had his acceptance to law school revoked. In 1984, he went back and completed his undergrad degree. And in 2007, the university invited him to give a lecture on freedom of speech.

(H/T: Dan Levin, political scientist at Utah).