The fine line between the right to speak in public and the right to disrupt the speech of others in public has long fascinated me. That's because I've seen so many examples over the years of people being unable to control themselves when they hear things they disagree with. And while we all agree that free speech is protected, and that every citizen should have the right to say what he thinks, the fact is that some forms of speech are inherently more disruptive than others -- simply because of content. I am not exclusively referring to so called "fighting words" or the legal doctrine of that name.

While speech and expression are protected, the fact is that some speech is inherently disruptive. Ask the cops whose job it is to maintain order. A Berkeley event featuring a bombed Israeli school bus drew pro-PLO counterprotestors, who seemed convinced that they had a moral duty to shout down the pro-Israeli demonstrators, and it was all the cops could do to attempt to keep the PLO protestors on one side of the street, and the Israelis on the other. I felt sorry for the cops, because they only want to prevent violence, yet they also must protect the First Amendment rights of people whose belief in free speech is marginal at best, and who mainly want to use their First Amendment rights to silence others. It's a mess. Similar results obtain when pro-life and pro-choice people go at each other. Uniformed Nazis and Klansmen are even more of a headache. Need I mention the Fred Phelps crackpots whose goal is to use disruption to get attention? The protected First Amendment antics of these people cost a lot of police time (and overtime) -- all of which is paid for by the taxpayers.

The antics of Philadelphia-based activist Michael Marcavage have long intrigued me, because he is not content to merely stand around and spout his message. He specializes in getting arrested (whether at gay events, baseball games, or simply by waving bloody fetus pictures at highway drivers), and he's very good at it.

Today's Inquirer reported a decision from the Third Circuit Court of Appeal (that's one below the Supremes) which recognized that Marcavage has a right to speak, but not disrupt:

The activists were arrested after disobeying police orders to move as they proclaimed their message, with one member chastising a transgender person as a "she-man."

All charges were dropped, and the activists sued, contending that police and the city violated their First Amendment rights and that police silenced them because of their message.

But the Third Circuit said Philadelphia police "had ample justification" in directing the protesters to move when they "interfered" with event activities.

"The police action was not based on the content of [the activists'] message but on their conduct," wrote Judge Dolores K. Sloviter, who said a video showed the Repent America group had tried to "drown out" platform speakers and congregated in the middle of the walkway.

Philly Pride Presents Inc. organized OutFest to celebrate National Coming Out Day, which is held every October.

Philly Pride had a permit for the event, and contended that it had a right to exclude the antigay activists.

The court said that the anti-homosexual group had a First Amendment right to communicate its message - but that those rights "are not superior" to the rights of Philly Pride, as the permit holder, to effectively convey its message "that we're out and proud of who we are" and the public's ability to hear that message.

"The right of free speech does not encompass the right to cause disruption, and that is particularly true when those claiming protection of the First Amendment cause actual disruption of an event covered by a permit," Sloviter wrote.

When protesters "move from distributing literature and wearing signs to disruption of the permitted activities," she went on, "the existence of a permit tilts the balance in favor of the permit-holders."

Still, the line is very fuzzy, and I wonder whether it is possible to judge just how "disruptive" speech is without reference to its content. Telling a gay crowd that they are sinful and should be punished as "sodomites," for example, is in practice probably less inflammatory than telling a black crowd they are racially inferior and should be sent back to Africa, or telling a Hispanic crowd that they are racially inferior should be rounded up and deported. That's mainly because gays are more accustomed to being told these things, and it's more predictable that this will occur. How about telling a crowd of Jews that Hitler was right? Morally, that's considered by most people to be beyond the pale. But isn't it just as much free speech as any of the other claims? How are these statements to be adjudged legally other than by reference to their content? What worries me is that the idea of what is and what is not disruptive is based on the content of the speech as much as its time, place and manner, yet this is not acknowledged. Had Marcavage been promoting an anti-war, anti-Bush message, I doubt he would have been arrested or asked to leave -- even if his decibel levels had been the same.

It's easy to say, "speech yes, disruption no," but when the speech is inherently disruptive I'm still not seeing a clear rule. Not in the public square setting.

Is the best way to deal with counter-demonstrators to simply keep them a safe distance away? Or should emotional people who hate each other be allowed to comingle and shout at each other freely?

If the latter is to be allowed, I think maybe the police and cities need to be immunized against lawsuits for failing to keep the peace when trouble erupts.

MORE: Speaking of inflammatory things, the other day I saw this poster outside a bar in New Jersey:

Nothing inflammatory there, right? Never mind the tens of millions murdered in the name of that symbol. It's just ordinary "commercial speech" of the sort used in advertising these days.

And because Communism fell, the symbol is now cute and harmless, right?

Well, suppose we redesign it using the same words, but substituting another "outmoded" symbol:

Most people would consider the swastika far more inflammatory than the hammer and sickle, and any such commercial use in a brand name would generate nearly universal outrage. Why? Because tens of millions were murdered. Never mind that Nazism fell and the symbol is as much of (if not more of) an anachronism as the hammer and sickle.

So I'm confused.

Can anyone explain this double standard in logical terms?

MORE: I'd hate to think that the rule might be based on morality, because that might mean Communism is well, sort of OK, but Nazism is absolutely evil.

Whatever happened to left-wing moral relativism?