The Hostile Audience Revisited

Abstract

This essay, commissioned by the Knight First Amendment Institute at Columbia University, addresses the way in which recent events in Charlottesville and elsewhere have raised once again the First Amendment problem of the hostile audience. When speakers, protesters, and demonstrators are met with hostile and violent audience reactions, when, if ever, is it appropriate and constitutional to restrict the speakers in order to prevent or control violence? Most of the relevant Supreme Court cases are decades old, and arguably fail to address what are now perceived as genuine threats to public order and personal safety. Perhaps most significantly, little in the existing doctrinal landscape focuses on the cost question – just how much must a municipality (or university) expend in financial and human resources in order to protect the First Amendment rights of controversial, provocative, or racist speakers? Addressing this question exposes even larger questions about the costs of the First Amendment, and thus about who should bear those costs.