IN A PUBLIC meeting, what are the permissible limits of expression on the part of the speaker and the audience? If there is a free speech issue in the Sanders Theatre incident, this is it. And the answer is not simple, since it requires a balancing of the First Amendment freedoms of the speakers and the audience so as to protect both without endangering either.

In the aftermath of the Sanders cacophony some have argued that at a political rally anything goes short of actual violence. Just as the libel laws are relaxed for politicians and public officials, so their freedom of speech is limited by the right of the electorate to remonstrate with them at public rallies. They are as vulnerable, so the argument goes, to vocal as to printed abuse. This vulnerability is essential to ensure that the feelings of the citizenry are freely expressed to public officials whose control of the instruments of violence and disproportionate access to the communications media may tend to make the public debate too one-sided.

Professor Warner Berthoff expressed a similar point of view in a letter printed in the CRIMSON on April 1st. He wrote:

Like those on the platform those in the audience came to say something. They said it. In the circumstances of a political rally, wherever at happens to be staged, the right to shout down speakers is embraced by the same principle of freedom of speech and expression as protects the speakers in their effort to make themselves heard.

Teaching Fellow Steven Kovacs put a similarly broad construction on the audience's right of expression at a political gathering. "When," he wrote, "has lack of courtesy been a crime? Prosecuting students as criminal offenders for successful antiwar protest is a blow by the Administration against their own students..." (CRIMSON, April 1). The argument about audience rights is accompanied by a claim that one of the speakers forfeited any privilege to speak he might have had by hurling obscenities at the audience. Since he incited the crowd, he is to blame for the consequences.

Indeed, one graduate of the Harvard Law School suggested that the very presence of the pro-war speakers on campus was an incitement. "Bringing in pro-warriors to a militantly antiwar campus," wrote B. Ko-Yung Tung, "logically results in disruption. Therefore, it is the pro-war speakers and their sponsors who... provoked the resultant disruption." (CRIMSON, April 13, 1971.)

HOW VALID are these arguments? Are "disturbances" at a political meeting a legitimate exercise of free speech? Are both speakers and audience free to express whatever opinions they wish as they feel? Or is one freer than the other? If blame is appropriate, who should be arrested-the speaker for inciting or the audience for disrupting? A discussion of these questions need not be hypothetical. Federal and state court cases on these issues go back to the nineteenth century. A large body of constitutional precedent has grown up around these problems. Because they involve competing rights and often chaotic situations, such disputes have often brought split decisions. These disagreements have engendered lengthy opinions and dissents. An examination of this judicial history will provide a useful perspective on the present debate over the meaning of the Sanders incident.

Limitations on the Audience: Disturbing a Public Meeting.

The Massachusetts statute on disturbance of a public meeting reads as follows: "Whoever willfully interrupts or disturbs a school or other assembly of people met for a lawful purpose shall be punished by imprisonment for not more than one month or by a fine of not more than fifty dollars," The only case under this statute ever to reach the Massachusetts Supreme Court occurred in 1854. The opinion handed down by Justice C. J. Shaw has often been cited in subsequent cases as a guide to the legal definition of a "disturbance."

In this case, three men were indicted for disturbing a temperance meeting by "coughing, laughing, whistling, and talking in a loud and boisterous manner." Their counsel argued that the statute should extend only to meetings authorized by law, such as school classes and town meetings, and not "to all the noisy political gatherings of the times." In these, he felt, citizens could express their feelings as they wished. Justice Shaw disagreed and explicitly interpreted the statute to include political gatherings, meetings for amusement, and all public meetings held for lawful purposes. He waxed eloquent on the right of performers and promoters licensed by the state to be protected against wilful disturbances. Otherwise, he said, "a few ill-disposed persons... by tin horns, cracked kettles, and other loud and discordant sounds, as well as by vociferation, might destroy the effect of the most pathetic tragedy, or the sublimest oratorio."

On the question of exactly what constituted a disturbance, he penned a paragraph that is still the basic text for such cases:

What shall constitute an interruption and disturbance of a public meeting or assembly, cannot easily be brought within a definition, applicable to all cases; it must depend trere-what on the nature and character of each particular kind of meeting and the purposes for which it is held, and much also on the usage and practice governing such meetings. As the law has not defined what shall be deemed an interruption and disturbance, it must be decided as a question of fact in each particular case; and although it may not be easy to define it beforehand, there is commonly no great difficulty in ascertaining what is a wilful disturbance in a given case. It must be wilful and designed, an act not done through accident or mistake.

The cases that have arisen under similar statutes in other states have been relatively trivial. For the most part they have involved disturbances of religious meetings. In a religious meeting, the standards for decorum, of course, are higher than at a political meeting. Therefore, these cases are only a loose guide to the "customs and usages" of a political gathering. Even in a church, however, certain protests have been held to be a legitimate exercise of free speech even if they interrupted the service.

Where a preacher used the privilege of the pulpit to vilify members of the congregation as coming from "the lowest down scrapings of the earth," the Georgia Court of Appeals held that vigorous protest by the targets of the abuse was justified. The disturbance of the service, in effect, was the fault of the minister for inciting the congregation. ( Jackson us, State. 1918 ) In Gaddis us. State (1920) the Supreme Court of Nebraska held that certain interruptions of a religious service, even in the absence of personal insult, did not amount to a disturbance.

The exercise of free speech protected a member of the Christian Church of Beaver City, Nebraska who, "in a becoming manner" and in keeping with "the precepts and usages" of the church, interrupted the preacher to contest a point of religious doctrine. The impromptu sermon was held to be legal even though it caused a commotion in the church. But it was held to be a disturbance of worship for one faction of a congregation to enter a church while another faction was worshipping there and to inform the minister of the rival faction that he could not preach there that day. ( Morris us. State, Alabama, 1887.) Such behavior evidently crossed the line between reasonable interruption and unwarranted disturbance.