How far should the Feiner exception go?

[Bill Funk]

Volokh, Eugene wrote:

>        So let me ask those who would consider applying Feiner here:
> How far do you think this exception should go?
>
As I believe the first to defend Feiner, albeit as I said, strictly (and
maybe even a little creatively) construed, I have no problem responding.
 My original formulation was 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.

What are "all reasonable efforts", of course, will depend upon the facts.

>         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!).
>
Is this a spontaneous gathering, not a permitted activity?  How many are
some?  How many listeners are there?  100?  Does it look like more than
"some" are sharing the same sentiment, even if not expressing it?  Is
this in Florida, where anyone can carry a concealed weapon?  Is there
only one police officer?  Is back up available and how soon can it
arrive?  Did the officer instruct the speaker to stop speaking at this
time and place before arresting him?  These are all critical facts.

>         Another might be that this is so only when there's a hostile
> crowd of more than a dozen or so listeners.
>
All the same issues, but if there are only a dozen listeners and the
crowd is only "hostile," that is, unfriendly, it would seem highly
unlikely to meet my test.

>         Another might be that this is so only when the police officers
> present on the scene lack the ability to restrain the crowd.
>
This is, I believe, a necessary prerequisite, but I do not share
Eugene's view that a lone policeman's "moral authority, to add to his
legal and physical authority," would likely be enough to restrain 60
really angry New Yorkers.  Moreover, if restraining the crowd would
itself disturb the civic order (which is the evil to be avoided), for
example, if it would take the use of gunfire, I think that would go
beyond "all reasonable efforts" to restrain the listeners.  Finally, I
don't think the police officer needs to try and fail to restrain the
crowd before telling the speaker to stop speaking at this time and
place.  It is enough if the police officer reasonably determines that he
would be unable to restrain the crowd.  But see below.

>         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.
>
Again, I believe this is a necessary prerequisite.  The police that
would be able to be summoned in sufficient time are, in my view, the
same as the policeman on the scene.  However, again, I would not require
a failed attempt as a prerequisite.

>         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.
>
Actually, in Feiner, Feiner was told to stop speaking (at that time and
place) and only when he refused was he arrested.  This too I would make
a prerequisite.

>         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.
>
I agree with Eugene's statement here.

Bill Funk
Lewis & Clark Law School
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