How far should the Feiner exception go?

[Volokh, Eugene]

        I appreciate Bill's thoughtful response; he may well be right that
Feiner should and will be read this way, though I'm not positive that this
is so; but in any event, it's noteworthy that the lower court in Harvey made
no findings as to what Bill thinks is a "necessary prerequisite" -- that
"the police officer reasonably determines that he would be unable to
restrain the crowd."  (I can't say anything about Upshaw, because I haven't
yet seen the opinion, though I've asked our excellent library to try to
track it down.)

        Eugene

> -----Original Message-----
> From: Bill Funk [SMTP:funk at LCLARK.EDU]
> Sent: Wednesday, April 03, 2002 3:40 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: How far should the Feiner exception go?
>
> 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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