These few cases comprise most of the extant case law on audience rights. Since they date back more than fifty years and primarily concern religious meetings, they can only be suggestive for current problems. There do exist, however, two recent cases that examine the issues discussed by Judge Shaw in a contemporary context.
On October 22, 1963, a group of 47 people led by two clergymen stood up during a presentation of a zoning question at a meeting of the Omaha City Council and began singing "The Star Spangled Banner." After finishing the National Anthem, they marched around the council chamber singing "We Shall Overcome." The Council president asked them to desist. When they refused, he had them arrested for disturbing the meeting. The clergymen argued in court that their behavior was an act of conscience in the face of the refusal of the Council to enact a civil rights ordinance. Their demonstration, they contended, was a statement of moral feeling protected by the First Amendment right to petition for redress of grievances. The Court rejected their plea. Recognizing that what constitutes a disturbance is contingent upon circumstances, the Court held that interruption of the orderly process of city council proceedings violated the customs and usages of such a meeting. No matter how moral the motivation of the defendants, the action, premeditated by the clergymen and expressly ordered to cease by the presiding officer, was impermissible. Expression of views by the audience in a legal hearing, it appears, is limited by the canons of decorum in such a setting.
BUT WHAT of meetings held in a less formal setting and for political purposes? On July 4, 1968, Congressman John Tunney gave a campaign speech at an Independence Day celebration in Dateland Park, Coachella, California. A group of Mexican-Americans in the crowd of 6000 "engaged in rhythmical clapping and some shouting for about five or ten minutes" during the speech in protest against Tunney's refusal to support the grape boycott. Tunney finished his speech despite the protest, pausing to urge the demonstrators to be grateful that they lived in a country that allowed such protest. Neither Tunney nor the police asked the demonstrators to be silent or to leave. Nor did their actions prevent the rest of the crowd in the park from hearing Tunney's speech. Four of the demonstrators were convicted of disturbing a public meeting and sentenced to four months in jail. The Supreme Count of California, in reversing the conviction, presented a detailed discussion of the First Amendment freedoms of the audience at a political rally.
The Court emphasized that audience behavior, though "impolite and discourteous," can nonetheless advance the goals of the First Amendment. An unfavorable reception given to a public figure is an important method by which citizens can forcefully make their views heard and achieve a change in policy. "The very possibility of adverse audience reaction," wrote Justice Tobriner, "may aid in the corrections of evils which would otherwise escape opposition." He continued. "The right to free expression articulated through 'disturbances' that are no more than announced differences in ideology or beliefs lies at the heart of the First Amendment."
In order to protect the rights of expression of all those present at a meeting, the Court held that a criminal disturbance existed only when the conduct of the meeting was "substantially impaired" by acts committed intentionally in violation of the customs and usages of the meeting. What constituted impairment would vary from case to case. "Prolonged, raucous, boisterous demonstrations" were customary at political conventions but would violate the customs of a church service. In an outdoor political meeting, "nonviolent demonstrations of political views" are acceptable.
The Court freed the defendants for three reasons. First, the meeting was not substantially impaired. Second, no warning was given that defendants' conduct violated the customs of the meeting. Third, no evidence of actual intent substantially to ampair the meeting was produced.
This case indicates that intent, warning, and substantial impairment must be present to sustain a disturbance conviction at a public meeting. Therefore, if the same Court were to consider the Sanders incident, they would probably ask: did the defendants intend their expression of views substantially to impair the conduct of the meeting and were they given warning to cease at the time? Since the meeting occurred indoors in a university and was not a campaign rally, the Court, were it to hear such a case, might feel that the customs and usages of such an event would warrant a narrower definition of permissive conduct than applied in the Tunney case.
The rights of an audience to free expression, according to this survey of judicial opinion, are considerable but not limitless. Ft the behavior of the audience violates the customs, of a meeting, warning is given, and intent to disturb is evident, the protections of the First Amendment have reached their limit.
Limitations on the Speaker: Disorderly Conduct.
Like the audience, the speaker too cannot transgress certain boundaries. The Supreme Court has ruled that if a speaker creates a "clear and present danger" of a substantive evil that the state has a right to prevent, he can be silenced or arrested. Such a test very much depends upon circumstances since language provocative in one context might be applauded in another. The burden, however, appears to lie with the speaker to avoid inciting to riot or using language that would cause an average man to fight. According to a Note in the Harvard Law Review (1967), "If the varying nature of audiences can be taken into account, very slight taunting may be enough to withdraw constitutional protection under some circumstances." The mere appearance, however, of a speaker in a community unfriendly to his views is not evidence of provocation. When violence or disorder result solely from audience hostility, the police must ordinarily seek to restrain the crowd, not arrest the speaker.
THE ASSIGNMENT of responsibility in a chaotic situation, however, is often difficult. In Feiner us. New York (1950), the Supreme Court upheld the conviction of a speaker for disorderly conduct on the grounds that his soapbox talk inflamed his audience to the point of violence. Feiner was speaking to a racially mixed audience and "gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights." When an aroused member of the audience told a police officer at the scene, "If you don't get that son of a bitch off, I will go over and get him off there myself," the officer asked Feiner to stop speaking. He refused and was arrested.
A majority of the Court felt that the imminence of violence and the provocative words of the speaker justified the police action. Justices Black and Douglas dissented. They argued that Feiner deserved protection from a hostile audience and that the threat of one man to assault the stage did not indicate disorder. If anyone was to be arrested, it should have been the angry member of the audience. Black cited testimony which claimed Feiner had exhorted the crowd to go "arm in arm" to a Young Progressives of America meeting, rather than to "rise up in arms" as a majority of the Court held.
Both the opinion and the dissent, however, indicate that for a charge of incitement to be plausible, the expressed hostility of the audience must be a consequence of the speaker's words, not merely his presence. And these words must be shown to have been the cause of the riotous behavior of the audience. The possible provocation of the speaker by the audience, one might also add, must be taken into accountsince "fighting words" can presumably be hurled in either direction.
When competing First Amendment freedoms are at stake, blanker statements are usually inexact. As often as not, the decision of a court hinges on a careful examination of facts and these vary from case to case. The dilemma of satisfying equally legitimate yet potentially conflicting rights accounts for the care with which the courts have discussed these issues and the diversity of opinion on them.