Yes, but what is disruptive?

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."

This strikes me as a classic time, place, and manner decision.

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?

posted by Eric on 07.16.08 at 08:03 AM


Interesting question on Nazis/Communists, one that has intrigued me for a very long time (since college, in fact). There was a brief discussion of that on Jonah Goldberg's LF blog at NRO, and the consensus seemed to be that the Nazis were tainted with the guilt of starting WWII. Of course, as some pointed out, the Soviets were just as guilty, the Ribbentrop-Molotov Pact having arranged the division of Eastern Europe between the two Evil Empires, and of course the USSR invaded Poland from the East after the Germans attacked (even today, how many people know about Katyn?).

Stalin pulled off the brilliant trick of beginning the war as an ally of the Axis, and finished it as one of the victorious Allies. So his hands were historically clean, more or less, despite his "liberating" armies having brought an occupying dictatorship on the points of their bayonets to all of Eastern Europe.

Another factor, of course, is the Holocaust. Despite having murdered many more people than did the Nazis, the Soviets did not attempt genocide (although they targeted entires classes of people, they were largely color blind to race or ethnicity). One can argue how much of a distinction that is, given the human cost of brutal reign, yet the death camps stained the Nazis forever (save in the Muslim world, and in some lefty enclaves of the West). Thus, not bearing the sin of genocide, the Communists can still be respected by those with a bent towards statism. And for the true believers, one can argue that the USSR's fall was due to bad judgment and mismanagement and not to the inherent unworkability of a hopelessly corrupt concept.

Mt assessment, for what it's worth, is that's little to choose between the two. It's a binary choice version of the execution poll on your sidebar. In my mind, using Soviet imagery (including wearing a Che shirt) is equivalent to using Nazi symbols. No matter how many omelets you plan to make.

Steve Skubinna   ·  July 16, 2008 1:46 PM

It's all about the advertising. The Communists claimed to be Enlightenment universalists, concerned with the welfare of all mankind. The Nazis never made such claims, and specifically excluded most of mankind from their definition of true humanity.

Many intellectuals, lacking native shrewdness, never look beyond the advertising.

david foster   ·  July 16, 2008 4:39 PM
Can anyone explain this double standard in logical terms?

The leftists that run our media and education systems have a soft spot for the grand romantic failure that was communism, so they downplay and/or excuse most of the dehumanizing brutality inherent in that system.

That is all.

There is no other reason

Fellow travelers get judged only by their intentions; everyone else is condemned... no matter the actual final result.

stevieray   ·  July 16, 2008 6:11 PM

I agree with david. The communists spouted left-wing propaganda and the Nazis didn't. It's that simple.

Eric, I won't addres your main point--becasue I agree. The difference between speech intended to enlighten needs to be protected but speech intended to shout down other speech does not. The line between the two can be very difficult to draw.

But on your second issue of the commies versus the fascists, you're trying to imagine the objective standard behind something that is subjective. Despite the fact that fascists and communists are basically the same and equally destructive of humanity, commies are advertising gold because they are, and the fascists are inflammatory because they are.

And that's that.

tim maguire   ·  July 16, 2008 6:16 PM

I had never heard of Hammer & Sickle vodka, but Mikhail Kalashnikov, inventor of the AK-47 assault rifle, has lent his name to a brand of vodka marketed in the USA. No kidding--they had a full-page ad in the American Rifleman.

I love the free market.

notaclue   ·  July 16, 2008 7:30 PM

There is always a double standard.

Christopher Hamilton   ·  July 16, 2008 11:24 PM

Next step: alcohol marketed at colleges featuring a stack of skulls (Nazi, Khmer Rouge, whatever) and the slogan, "Wow! What a night!"

Bleepless   ·  July 17, 2008 9:52 PM

Actually, the Nazis marched under the banner of Socialism. It was simply a home-grown Socialism in its advertising.

But don't be mistaken. ALL Socialist regimes resort to nationalism and, indeed, some form of racism to promote their agenda or solidify their power.

The Russians did not call WWII the great War for International Socialism. They call it The Great Patriotic War.

Ultimately, I think the Universalism is part of the appeal. If you're not German (or Aryan - whatever that actually is in practice) you're never going to get excited about being a Nazi.

But International Socialism gives everyone who feels the world owes him some credit to punch above his weight. It feels good to tell people what to do, It feels even better to say it's out of Love instead of out of a contradiction between one's view of oneself and the view the world has.

If Socialism is what we make it, if, as The Saint and God's Last Prophet says, "WE are the ones that we've been waiting for," well, then it feels absolutely wonderful to see a future where you can press your will on to other men.

After all, they clearly weren't the ones we've been waiting for. They're just in the way of Hope and Change for the Future Dreams of our Children's Unicorns.

Amos   ·  July 17, 2008 10:53 PM

stevieray is correct, but the elaboration on the theme could go on endlessly.

I will note that the countries we think of as socialist are big on sharing mostly with their own members only. Acting collectively in the international market, they are as market-driven as anyone else. That level of sharing may require belligerence directed outward at others. (See also: tribes, gangs)

Assistant Village Idiot   ·  July 18, 2008 9:02 AM

Sanity is optional.

Beck   ·  July 19, 2008 8:45 PM

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