The Heckler’s Veto: Censorship in Disguise

One of the most important ideas that America was built on was that its citizens could peaceably protest against the government without fear of retaliation. The First Amendment makes this much explicitly clear: “Congress shall make no law … abridging the freedom of speech … or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

Unfortunately, it’s not just what governments can do to silence speech. Sometimes, it’s about what a government chooses not to do, allowing others to silence speech for them. One of the most common ways this happens is through a heckler’s veto.

What is a heckler’s veto?

A “heckler’s veto” traditionally referred to the restriction of a person’s speech, on behalf of the government, out of fear of a potential hostile reaction from opponents of that speech. Such government restrictions are usually placed on speech that has a risk of inciting violent reactions from a crowd. In such a case, a government can enact a heckler’s veto by shutting down the speech or removing the speaker.

But more colloquially, the expression “heckler’s veto” has come to mean literal “hecklers” shouting down speech that they don’t like. The past several years have seen a concerning trend of protesters attempting to shut down speakers with intimidation, heckling, and harassment. It’s a dangerous form of censorship disguised as legitimate protest. And it’s a form of censorship that the government has increasingly turned a blind eye to, so long as it targets voices that won’t parrot the establishment’s favored talking points. In this scenario, the government can enforce a heckler’s veto through inaction, by simply allowing the speech to be shouted down and silenced by others, while refusing to act themselves and protect the speaker’s rights.

What has the Supreme Court said about the heckler’s veto?

The Supreme Court has wrestled with the heckler’s veto for more than 75 years, and its rulings trace a clear arc toward protecting speech—even unpopular speech—from being silenced by a hostile crowd.

Terminiello v. Chicago

One of the Court’s earliest major statements on the issue came in Terminiello v. Chicago (1949). Speaker Arthur Terminiello had been convicted of disturbing the peace after his speech provoked a riot outside the hall where he spoke. The Supreme Court overturned the conviction, holding that his speech remained constitutionally protected regardless of the crowd’s reaction. Justice William O. Douglas, writing for the majority, explained that free speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In other words, speech doesn’t lose its constitutional protection just because it makes people angry enough to riot.

Feiner v. New York

Just two years later, though, the Court complicated that principle. In Feiner v. New York (1951), police arrested a street-corner speaker after his remarks provoked outrage from onlookers and a threat from one bystander to physically remove him. The Court upheld the arrest, reasoning that officers had acted to prevent an imminent breach of the peace rather than to suppress the speaker’s views. Legal scholars have long criticized this ruling, since it effectively let a crowd’s hostility determine whose speech could continue—the exact outcome Terminiello had rejected two years earlier.

Forsyth County v. Nationalist Movement

The Court would then reinforce the Terminiello principle decades later in Forsyth County v. Nationalist Movement (1992). Forsyth County, Georgia, charged groups a permit fee to march or demonstrate, and county officials set the fee based on how much police protection they expected the event would need—meaning controversial or unpopular groups faced steeper fees than uncontroversial ones. The Supreme Court struck down the ordinance, ruling that the government cannot charge speakers more because their message is likely to provoke a hostile audience. The listener’s reaction, the Court explained, cannot be used as a tool to price certain viewpoints out of the public square.

Together, these cases establish a clear rule: The government’s job is to protect the speaker and control the crowd, not to silence the speaker because the crowd got loud.

Is the heckler’s veto constitutional?

No. The heckler’s veto is incompatible with both the letter and the spirit of the First Amendment.

It helps to draw a distinction here. Governments are allowed to enforce content-neutral time, place, and manner restrictions—rules about noise levels, permits, or venue capacity that apply equally to everyone regardless of viewpoint. Those restrictions are constitutional because they don’t depend on what a speaker is saying or how an audience might react to it.

A heckler’s veto is different. It singles out speech for restriction specifically because of how listeners might respond to its content. That’s a viewpoint-based decision, and the Constitution treats it with deep suspicion. Law enforcement is expected to ensure that speech can be heard, even when it’s unpopular, by controlling disruptive behavior rather than removing the speaker who triggered it.

It’s also worth separating the heckler’s veto from a much narrower, rarely invoked exception to free speech protection: “fighting words,” a category the Supreme Court recognized in Chaplinsky v. New Hampshire (1942) for face-to-face insults likely to provoke immediate violence. That exception is exceedingly limited and has almost no application to a speaker addressing an audience from a podium. Protesters and administrators sometimes invoke the specter of “incitement” or “fighting words” to justify shutting down speech, but courts have consistently declined to stretch those narrow categories to cover ordinary, if provocative, public speech.

When the government fails to prevent a heckler’s veto, it violates the rights of both the speaker and the audience members who came to listen. And allowing it to succeed sends an unmistakable signal: If you shout loud enough, or show up with enough people, you can decide what everyone else is allowed to hear. That incentive structure rewards mob behavior over reasoned disagreement, and once rewarded, it tends to repeat.

What does the heckler’s veto look like in practice?

Alliance Defending Freedom has represented multiple clients confronted with a heckler’s veto and have even faced it ourselves.

Yale Law School

For example, in 2022, Alliance Defending Freedom CEO, President and Chief Counsel Kristen Waggoner was scheduled to speak on a panel discussion with Monica Miller of the American Humanist Association at Yale Law School. The topic? Freedom of speech and ADF’s case Uzuegbunam v. Preczewski. Both sides were prepared to have a vigorous but civil discussion.

But instead of the discussion taking place, over 100 law school students prevented the dialogue from happening by shouting down the moderator (a Yale professor), chanting, pounding on the walls, and harassing and physically threatening fellow students who organized the event. Eventually, the police were called and had to escort Kristen and Monica away in a patrol car for their safety. In short, a mob overran a campus event to shut down a civil conversation. (Thankfully, Kristen returned to Yale the following year to speak with former ACLU President Nadine Strossen on the freedom of speech and another ADF case, 303 Creative v. Elenis, and the event was able to take place without being shouted down.)

Virginia Commonwealth University

The campus chapter of Students for Life hosted an event featuring a pro-life speaker. A mob of students physically disrupted the event, blocking doors and shouting obscenities at attendees. The disruption ultimately turned violent, injuring several of the pro-life students present. University administrators, despite advance knowledge of planned protests, failed to provide adequate security. When officers finally arrived, they let the disruptive activists continue and asked the guest speaker to leave rather than removing the people disrupting her. Only after ADF sent the university a letter did officials agree to a properly secured “do-over” of the event, allowing the speech to proceed as it should have the first time.

Young America’s Foundation v. Stenger

This case offers one of the starkest illustrations of how a heckler’s veto operates when a university itself facilitates it. In November 2019, Young America’s Foundation (YAF) and the College Republicans at the State University of New York at Binghamton planned to co-host a lecture by economist and Presidential Medal of Freedom recipient Dr. Art Laffer. Days before the event, a mob of roughly 200 students confronted College Republicans members tabling on campus, destroyed their flyers, broke down and stole their table, and physically assaulted one student. University police did not intervene to stop the harassment—they instead ordered the College Republicans to leave.

On the day of the lecture itself, university police moved the event to a room adjacent to one they gave to the protesting group, separated only by connecting doors, despite objections from YAF and College Republicans. When the doors opened, hundreds of protesters stormed in. Within seconds of Dr. Laffer beginning his remarks, a protester began shouting him down through a megaphone. Rather than removing the disrupters, university police ultimately escorted Dr. Laffer out of the building.

ADF and co-counsel filed suit on behalf of YAF, the College Republicans, and a Binghamton student, arguing that university officials facilitated the mob’s disruption instead of protecting the speaker’s constitutional rights.

Does the heckler’s veto only happen on campus?

College campuses have become a common flashpoint, but the underlying dynamic shows up elsewhere—at public meetings, town halls, and community events where a vocal minority tries to shout down speakers rather than let them finish. The legal principle applies with the same force in any setting where government officials are present and responsible for keeping order.

It’s worth distinguishing this from a related but different phenomenon: online “cancel culture,” where private platforms or employers pressure someone into silence after public backlash. Because the First Amendment restrains government action, not private conduct, that kind of pressure campaign isn’t a heckler’s veto in the constitutional sense, even though it can feel similar. The heckler’s veto specifically describes government officials—police, university administrators, or city officials—choosing to silence a speaker because of how an audience reacted, rather than protecting that speaker’s right to be heard.

Civil society depends on the freedom to exchange and debate ideas

The heckler’s veto lets a hostile crowd, rather than the Constitution, decide who gets to speak. The Supreme Court has made clear that this is not how the First Amendment works: Government officials must protect speakers and control disruptive crowds, not allow unpopular views to be silenced to avoid conflict.