the first amendment in a time of crisis

[Tobias Barrington Wolff]

Bill Funk writes:
<< Feiner is not a popular case among First Amendment devotees, but
narrowly construed it must be correct.  By narrowly construed, I mean that
it should be interpreted to require the police to use all reasonable
efforts to protect a lawful speaker from threats of violence and/or to
restrain those who would disturb the peace in retaliation for the lawful
speech.  If, however, no reasonable effort will enable the police to
prevent or contain the violence, then the law may require the speaker to
cease speaking at that time and place.  Refusal to cease speaking may then
be sanctioned.  Feiner, which also was highly dependent upon the particular
facts, can be read this way. >>

I'm afraid I disagree.  First, the reported facts in Feiner don't even
remotely support the proposition that the police used "all reasonable
efforts" to prevent a disturbance before arresting the speaker.  That's a
good part of why it has been so roundly criticized.  Second, it is
incorrect that a narrow construction of Feiner "must be correct."  Cooper
v. Aaron resoundingly stated even that serious threats of disturbance or
violence by lawbreakers cannot justify the acquiescence by government
officials in the limitation or abridgment of another citizen's
constitutionally protected rights.  One may debate whether, and to what
extent, Cooper applies in the First Amendment context, but I think it
insupportable to suggest that Feiner "must be correct" and Cooper inapplicable.

-- Tobias