By Erwin Chemerinsky
The Sacramento Bee
Shouting down speakers is inconsistent with the most basic values of freedom of speech and often is counter-productive in that it prevents advocacy for the very change that the disrupters want. This was evident at a recent event in San Francisco.
A panel on police use of excessive force was to be held at Grace Cathedral. The panel was to be moderated by Yolanda Jackson, Executive Director of the Bar Association of San Francisco. Four speakers were scheduled to be on the program: me; Pete Walsh, a commander in the San Francisco Police Department; Assemblywoman Shirley Weber, who has introduced a bill to reform the law in this area; and San Francisco District Attorney George Gascon.
As the panelists came on to the stage, there were about 150 people in the audience. We were asked to introduce ourselves. Commander Walsh and I did so without incident. As soon as District Attorney Gascon was about to begin speaking, about 20 people in the audience began yelling and then chanting so he could not be heard. They were angry that he found some recent police shootings to be within the law and declined to criminally prosecute the officers.
As the yelling and chanting intensified, the panelists were escorted off the stage. The moderator, Yolanda Jackson, went before the audience and asked the demonstrators to allow the panelists to speak and then the audience could ask its questions.
Instead, the protestors kept screaming and chanting. Jackson asked if they would please leave the room and protest outside. They refused and continued to yell so no one else could be heard.
At this point, the organizers of the event felt that they had no choice but to cancel the panel discussion. No one wanted to see the police physically remove the protestors.
I left with a profound sense of sadness. This was truly the heckler’s veto. All of those in the audience who came to hear a discussion of an important topic were deprived of that possibility. Also, the panel discussion was going to be recorded and broadcast to inform a much larger audience.
I fear that the protestors felt that what they were doing was exercising their free speech rights. But that is wrong. The law is clear that there is no First Amendment right to use speech to silence others. Otherwise the only speech that will occur is that which no one cares enough about to shout down.
I was sad, too, because the discussion was going to focus on a bill pending in the California legislature to address the protestors’ concerns: the need to change the law to better deal with the problem of excessive police force. Under current law, police officers can use deadly force when it is “reasonable.” AB 931, introduced by Weber, would permit police officers to use deadly force only when it is necessary to prevent imminent and serious bodily injury or death — that is, if, given the totality of the circumstances, there was no reasonable alternative to using deadly force, including warnings, verbal persuasion, or other nonlethal methods of resolution or de-escalation.
This would be a significant and important reform in the law. Indeed, it would be the first state-wide law changing the definition of what constitutes excessive force and thus could be a model for other state legislatures.
My understanding is that District Attorney Gascon was going to explain that under current law officers are acting lawfully and cannot be prosecuted so long as their actions are reasonable. But under AB 931, it would be a very different standard, and police could be criminally prosecuted unless the use of force is “necessary.”
The irony of the protest directed at Gascon is that he is the only district attorney in California who is supporting AB 931. He is doing so in the face of strong opposition from police organizations.
But the disruption kept him from expressing his support for this change in the law. It kept others, such as me, from explaining why this is a vital reform to deal with the serious problem of police excessive force directed especially at African-American and Latino men.
I worry that what happened that night in San Francisco is becoming all too common. There have been so many incidents in just the last year of protestors using yelling, chanting, singing, humming to silence speakers. That is antithetical to what freedom of speech and democracy are all about.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.
