How far should the Feiner exception go?

[Volokh, Eugene]

        Feiner did indeed seem to endorse the arrest of a speaker when the
audience got unruly enough; and it went beyond the boundaries of incitement
and fighting words, at least as they've been defined since Feiner (by
Brandenburg v. Ohio and Gooding v. Wilson).

        But there's been a lot of water under the First Amendment bridge
since then, include Edwards, Brandenburg, Gooding, and other cases.  So let
me ask those who would consider applying Feiner here:  How far do you think
this exception should go?  According to the N.Y.L.J. reprint of the Harvey
opinion (I haven't been able to get my hands on the Upshaw opinion yet), a
crowd of 60 people had gathered around Harvey; some said "Fuck this guy,
lock that fucking guy up before I kill him"; there was at least one police
officer present (the one who arrested Harvey); the judge pointed to no
evidence that the police officer thought himself incapable of restraining
the crowd.  (My guess is that post-9/11, a NYPD officer urging calm and
restraint, even on behalf of a jerk like Harvey, probably would have had
quite a bit of moral authority, to add to his legal and physical authority.)
Is that enough to make Harvey's speech constitutionally unprotected?  What
if there had been more officers present?

        One possible position might be that whenever a speaker says
something that leads some listeners to threaten his life, the police officer
may arrest the speaker (and not the listeners!).

        Another might be that this is so only when there's a hostile crowd
of more than a dozen or so listeners.

        Another might be that this is so only when the police officers
present on the scene lack the ability to restrain the crowd.

        Another might be that this is so only when the police officers
present on the scene, plus whoever may be summoned in a reasonable time,
lack the ability to restrain the crowd.

        Another -- which would involve the outright reversal of Feiner --
might be that the speaker may never be prosecuted, though perhaps in an
emergency he may be temporarily taken away from the location for his own
protection.

        Which view is taken is important; if, for instance, the first
position is adopted, then a great deal of speech -- from flagburning to Nazi
parades to Cohen's jacket to antireligious advocacy such as in Kunz -- would
quickly lose its protection, especially as audiences learn that strong
enough objections on their part can legally empower the police officers to
act against the speaker.

        Eugene
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