Legal Commentary

Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense. The answer depends on two competing models of how free speech should operate.

On one hand, Congresspersons are trying to recreate some version of Alexander Meiklejohn's Town Hall Meeting, in which democratic governance occurs via a form of the New England Town Hall meeting and the freedom of speech is designed to ensure that the meeting functions towards that end. (Actually, this is more of a republican adaptation--no governance is occurring at the meeting, but the meeting is designed to enable communication between representative and constituents, which in turn enables the representative to directly participate in the governance process). But the point about the rules of the meeting remains the same: They must be designed to ensure that the meeting can function for its governance purpose; there is no right in every person present to speak; speech can be restricted if it interrupts the ordinary course of the meeting, prevents others from being heard, or otherwise interferes with the meeting; rules can be used to maintain order to the meeting process (Meiklejohn anticipating what has become known as time, place, manner restrictions).

On this conception, the tea folks are acting wrongfully. The meeting should be open to the protesters and those protesters must be permitted to speak, ask hostile questions, and express (even in loud terms) their opposition to health-care reform (none of these Bush-Era faux town hall meetings stocked with handpicked supporters). What they cannot do is interrupt the meetings by booing and jeering, shout down the Congressperson or other attendees and speakers, or otherwise try to prevent the meeting from occurring or functioning as a public conversation.

On the other hand, a competing free-speech model is the person speaking on the public street corner. This ordinarily assumes the lone, powerless speaker alone on a soapbox, railing against authority and government corruption. But I think it is a flexible enough concept to capture a Congressperson out in public, meeting and talking with his constituents or even giving a public statement. This model of speech and the public speaker also carries with it counter-speech and the counter-speaker--someone standing on an adjacent soapbox, countering the first speaker's words, symbols, and ideas, trying to convince the listening audience that she is right and the first speaker wrong, and perhaps trying to get the first speaker to give up and shut up. One speaker attempting to shout-down another--while rude, not conducive to civil or meaningful discussion that can accomplish anyway, and perhaps counter-productive--is consistent with this model of speech.

The tea folks thus are behaving consistent with this model, particularly in less-formal settings (show-ups at restaurants, picnics in the park and other public spaces, etc.). Freedom of speech includes freedom to heckle and shout-down competing speakers; the public space is not the place for the organization Meiklejohn assumes. This idea of the extreme of counter-speech is captured in this scene from Casablanca--what's the difference?

Two final caveats on this. First, I do not suggest that the tea people are behaving in a way consistent with republicanism and democratic governance. Preventing a public conversation about an important issue of public policy is hardly conducive to effective governance. But sometimes there is a divide between speech and governance. Second, Meiklejohn's model, even if appropriate here, does not speak to remedies for those who refuse to play by the rules of the town-hall meeting. Because the reality is there are none. Having even harassing and uncooperative protesters removed from the meeting is not going to play well on TV or the Internet.