Free speech: Is there a limit to this Constitutional right?

BERKELEY (KTVU) -- Free speech is a basic American right that is enshrined in the U.S. Constitution, but the right does come with limitations, legal scholars say.

When American Nazis wanted to march in Skokie, Illinois, a community with a large population of Jewish Holocaust survivors, the U.S. Supreme Court essentially allowed it.

At the University of California at Berkeley Wednesday night, when a planned speech by alt-right figure Milo Yiannopoulos prompted fiery protests, bystanders saw what Constitutional scholars call a "Heckler's Veto."

While the fhe First Amendment of the Constitution guarantees the right of free speech there are some categories of speech that do not have blanket protection, which includes any speech that:

  • Incites violence.
  • Implies a threat of violence.
  • Defames or is linked to obscenity or child pornography.

"Even those have been seriously limited by the Supreme Court," said former federal Appellate Judge Michael McConnell, the Director of the Constitutional Law Center at Stanford Law School.

He said the Berkeley protesters, not the scheduled speaker, suppressed free speech.


"The biggest threat today is other students who have somehow gotten it into their ideas that when they are offended by something that they have the right to shut down the speaker," McConnell said.

Protesters at UC Berkeley, which was home of the 1960s free speech movement, violated Constitutional free speech the moment they started destroying things, legal scholars say.


"As soon a you move across that line, then of course, the speech protection really evaporates," said University of San Francisco Law Professor Julie Nice, who has practiced and taught in the Constitutional Law area for 30 years.

UC Berkeley is a state government agency with clear First Amendment responsibilities, officials say.

Said Nice: "Allow speech and protect speech, even the speech you hate, of a hateful speaker all the way up to where the speech crosses the line into inciting violence."


When violence broke out on the campus, the university had no choice but to cancel the speech, in effect enabling the so-called "Heckler's Veto" against the speaker.

"Then the university has, in fact, a duty that the courts have upheld in various school settings to say we need to have safety considered as well. So, we're balancing the free flow of ideas against public safety and order," Nice said.

Police and university officials cancelled the 8 p.m. speech by Yiannapolous as the protest grew and started flaring out of control.

"He is not the victim of this," McConnell said. "It's the students at the universities who want to be able to bring and hear unpopular speakers. And when organized thugs can shut down freedom of speech for other people, we're in serious trouble.

"The groups who shut down this speaking event are claiming victory," he said. "When bullies win, they're just gonna do it again." said Stanford Law School's McConnell.

By KTVU reporter Tom Vacar.