In “Mencia cancellation leads to policy change,” page 1, March 30, reporter Melody Hanatani covered a program at which I spoke. I spoke as what I called a “representative for the First Amendment.”
Ms. Hanatani quoted Superintendent of Schools Tim Cuneo as saying that he canceled the Mencia event “after learning that the benefit was causing divisions in the community and out of concern for the safety of those attending the performance, hearing that several dissidents were planning on buying tickets just to disrupt the event, which could have lead to litigation against the district.”
I didn’t hear Mr. Cuneo say that, but if he did, he is, essentially, admitting that the district violated the First Amendment rights of the PTA and Mr. [Carlos] Mencia, as well as community members — because someone might come and heckle.
What do I mean? Well, this is what First Amendment scholars refer to as a “heckler’s veto” case.
A heckler’s veto occurs when an acting party’s right to freedom of speech is curtailed or restricted in order to prevent a reacting party’s behavior. The common example is that of demonstrators (reacting party) causing a speech (given by the acting party) to be terminated in order to preserve the peace — almost precisely our fact pattern here, although our facts are more anticipatory — the disruption wasn’t occurring at the time, it was just possible.
That is a clear First Amendment violation.
Beyond that, in this case, I have difficulty with the factual assertion that anyone would have disrupted the event. What proof does anyone have of that assertion? Some people were upset, but that does not mean that they would have disrupted the performance.
Even if it is true that those demonstrators would have tried to disrupt the performance, if they refused to cease upon request, they would be subject to arrest for violation of various laws. This is something that I am most confident that Police Chief [Tim] Jackman and Santa Monica’s finest would be fully capable of handling.
On the other side, it is important to note that the dissidents referenced by Mr. Cuneo would also have First Amendment rights to come and disagree. In fact, I would defend their right to do that!
Those dissidents could demonstrate outside. They could write letters protesting to the school board or even the Santa Monica Daily Press! They could complain. And in the right circumstances, I might even join them in exercising my own First Amendment rights.
One other factor in this equation is the position of the school district. If the school district agreed with the dissidents and wanted to suppress the speech of Mr. Mencia and the PTA, and they used the possibility of dissidents to silence the PTA and Mr. Mencia, then the violation of First Amendment rights becomes even clearer and more serious. Then, the government is, in essence, using the possibility of a heckler to silence speech.
Mr. Cuneo is also quoted as saying that allowing the PTA and Mr. Mencia to proceed could have lead to litigation. How? The thing that could have lead to litigation against the district is stopping the performance, not allowing it to go forward!
The good news on that front is that it seems that, despite the facts, nobody is trying to file lawsuits. Instead, everyone seems to be working hard to use this event to avoid similar problems as we move forward, which is one of the wonderful things about Santa Monica — people care.
Finally, it is important to note that we are an empowered community. In a sense, some of us who were once out of power have become what we once dreaded — what was colloquially sometimes referred to as “The Man.”
But with our empowerment come the responsibilities of power — including the responsibility and the duty of allowing those with whom we may disagree to express themselves even when we don’t like it. Just because we control the levers of power doesn’t mean that we can ignore the rules of the game — and one of the most important of those rules is the First Amendment.
In fact, now that we are empowered, we should be better and do better because we know what it is like to be on the other end.
The First Amendment is a friend to all, and most particularly to those on the outside looking in. It is not opposed to equality. It should be cherished.
Let freedom ring!
Michael S. Klein is a senior partner with the law firm of Klein & Weisz in Santa Monica. A graduate of Yale Law School, he has spoken and written extensively on issues, including copyright, First Amendment law and contracts in the entertainment and business arenas. He is on the Board of Directors and Executive Committee of the American Civil Liberties Union of Southern California and chairs its First Amendment Committee.
