Moving events online due to protests is still a heckler’s veto

The widespread availability of Zoom, Google Meet, and similar online platforms for virtual meetings has been speech-expanding in many ways. They allow speakers to reach larger audiences where, previously, location and travel hurdles might have limited attendance. And when the 2020 COVID-19 pandemic prevented many in-person gatherings, using Zoom to meet with colleagues or gather with friends and family became indispensable.

Despite the real benefits of virtual meetings, they are not a replacement for real life. At its best, they facilitate meetings and communication that otherwise could not have occurred. But a screen cannot replicate the experience of an in-person gathering. 

In short, virtual events and in-person events are not interchangeable. 

Yet many universities have started treating them as such. In recent years, FIRE has seen schools increasingly rely on the availability of virtual meeting platforms to evade their constitutional and other free speech obligations to provide sufficient security for events to proceed without sustained disruption. 

The most recent incident occurred at UCLA’s Nazarian Center for Israel Studies, where director Professor Dov Waxman planned to host an in-person lecture, “Israel and the Middle East after the October 7 Massacre: Threats, Challenges, and Hopes,” featuring former Israeli foreign minister Tzipi Livni. The day before the event, UCLA’s chapter of Students for Justice in Palestine announced plans to protest the event. In response, Waxman moved the event to Zoom “in order to avoid any disruptions.” SJP declared victory and canceled its protest.

The First Amendment obliges public universities like UCLA to protect the expressive rights of students, faculty, and invited guests to speak and listen. When critics attempt to disrupt and silence the protected speech of an invited speaker — what is known as a “heckler’s veto” — a university must make “bona fide efforts” to protect the speaker’s expressive rights (and the audience’s right to listen) rather than canceling the event. While a university must respond to credible threats of violence or disruption, its actions must be the “least restrictive with respect to the speaker’s First Amendment rights.” That usually means providing the security required to prevent disruption or violence or to remove individuals engaged in disruptive or violent acts before resorting to more serious actions that alter the planned event or its method of communication. 

If UCLA had its way, only the least controversial messages could enjoy in-person audiences on campus. 

While canceling an event is obviously the most severe imposition on First Amendment rights, other burdens or limitations short of cancellation — such as assessing large security fees on groups hosting controversial speakers or preventing a student from distributing political literature on campus because some react violently to his presence — are also unconstitutional content-based restrictions on speech. Another such restriction is “moving” a speech from an in-person venue to an online format when protesters threaten the in-person event with disruption. 

After the incident with the Livni lecture, we wrote UCLA on April 10 urging Waxman to hold UCLA to its constitutional duty to secure future events against disruption rather than ratifying a heckler’s veto, which only incentivizes similar attempts by those who disagree with speech to see it censored. 

UCLA responded, arguing that because Waxman’s decision to move the lecture online led to it being viewed “by far more individuals than it would have if it had been presented in person,” there was no heckler’s veto. UCLA further claimed the case law on heckler’s vetoes does not extend to modifying events from in-person to online to avoid disruptive protests. 

So we wrote UCLA a second time to explain why restricting a speaker to an online platform to prevent threatened disruption is an unlawful infringement on First Amendment rights: 

“Moving” Livni’s lecture from in-person to online because of threatened disruption is precisely such a content-based restriction: a limitation on how Livni and her hosts may communicate their messages, based solely on reactions of their critics. While online fora may have some advantages in-person events lack, the latter obviously have significant benefits Zoom cannot replicate. But even more importantly, event hosts have the right to consider these respective pros and cons as they make venue and format decisions — and UCLA consequently may not constitutionally allow protesters to dictate those choices for the hosts.

If UCLA had its way, only the least controversial messages could enjoy in-person audiences on campus. Any speaker controversial enough to attract disagreement would face relegation to the internet, as critics would understand they could prevent live events on campus merely by threatening disruption. The First Amendment requires more from universities to protect campus discourse.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund’s 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative’s 24-hour hotline at 717-734-SPFI (7734).