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The heckler’s veto by Karan Singh Tyagi

Let down by governments that curb free speech, we have become our own hecklers

In free speech jurisprudence, there is a concept called a “heckler’s veto”. It means the ability — but not the right — of a private actor, the heckler, to be loud and obnoxious enough to obscure the free speech of others. By pattern, a heckler is someone who is unable to defend his argument by legitimate use of facts, logic and reason. The term “heckler’s veto” is shorthand for the proposition that people who don’t like an idea get to veto its expression by threatening public safety. In essence, this is what happened in Salman Rushdie’s case, as his planned video address at the Jaipur Literature Festival was scrapped because of security fears.

The legal principle opposing the heckler’s veto is straightforward. No speech which would not otherwise be illegal becomes undeliverable because it will excite opposition which is itself unlawful. Constitutional theorist A.V. Dicey put it simply: “The plain rule is that A’s right to do a lawful act, namely walk down the high street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down”. Surely, a speaker ought not to be suppressed because his opponents propose to use violence. It is they who should suffer for their lawlessness, not he. If fear that hostile groups might indulge in breaches of the peace are to be enough to warrant repressive action, then all the speaker’s opponents would need to do to destroy constitutional rights would be to hire some thugs to create a disturbance every time the speaker wished to speak. This is exactly what transpired when nearly 30 angry representatives of various Islamic organisations in Jaipur tried to enter the Jaipur festival venue. What the protesters don’t understand is that the constitutional protection of speech exists precisely to protect speech that challenges widely held presumptions about politics and religion, and the answer to speech with which one disagrees is more speech, not violence or censorship.

In all such cases, the speaker’s right to speak should be regarded as paramount and the government must take all steps necessary to protect that right. If they do not, the burden of proof should be put on them to show that there was no conceivable way to maintain law and order. Only by the firmest display of the government’s intention to use all the powers at its disposal to protect the constitutional rights of speakers will hecklers be discouraged from taking the law into their own hands. The army or the Central Reserve Police Force should be called out if necessary. The temporary costs of any such move may seem exorbitant, but they may be nothing compared to the costs that could be suffered in the long run through any other course.

One incident is worth narrating. The US Supreme Court had struck down the segregation policy that prevented black students from attending schools along with white students. In many states, particularly in Arkansas and Alabama, hostile white groups openly attempted to flout the Supreme Court order. The situation was extremely volatile. However, Dwight D. Eisenhower, the then US president, stood strong and flew federal troops to Arkansas and ensured the entry of black students in schools. If hecklers had their way and federal marshals didn’t take little black kids to public schools, US schools would have stayed ghettoised and segregated.

In stark contrast, governments in India, like the Rajasthan government in this case, routinely hide behind the unpleasant reaction of some portions of the public in order to silence a speaker. They continually accede to a heckler’s veto. When the government is complicit in suppressing protected speech, the result is that the individual who is potentially being heckled will self-censor for the fear of the reaction it might create. This concept has a disastrous chilling effect.

How many potential M.F .Husains now think twice about their paintings, not because they are not creative or praiseworthy, but because they are now afraid of those who use violence rather than a rational debate? Or the Anurag Kashyaps who currently consider carefully whether they should be making another Paanch or Black Friday. Think about the young couples who don’t marry because of the fear of violence it might provoke from the khap panchayats. It is like the members of the Sri Ram Sene who accuse rape victims for “asking for it” by dressing provocatively rather than putting the entire blame on the rapist. To take another example, witnesses don’t testify because they fear the results will harm them personally if they do.

The truth is that the average Indian now anticipates and fears the reaction even though what he is doing is legal and what others are doing is illegal. The hecklers thus triumph even if they do nothing. Due to the failure of the governments to protect people like Salman Rushdie, we all are fast becoming our own internal hecklers. This fact is more depressing than any other.

The writer is a Paris-based lawyer