Counter-Demonstration as Protected Speech: Finding the Right to Confrontation in Existing First Amendment Law

Authors

Kevin Francis O'Neill
Raymond Vasvari

Abstract

On any given issue, groups with rival viewpoints may clamor for access to a particular forum at a particular moment in time. Public officials, alarmed by the prospect of clashing demonstrators, may seek to enjoin the simultaneous presence of opposing groups. Though counter-demonstration is an increasingly prevalent phenomenon, few cases address the First Amendment implications of such an injunction. Courts granting injunctive relief have relied on a spontaneous combustion thesis, concluding the abstract possibility of violence suffices by itself to justify banishing counter-demonstrators from the forum.

This Article asserts that the spontaneous combustion thesis is utterly inconsistent with First Amendment doctrine. Examining two strands of precedent-limiting government power to restrict potentially volatile demonstrations and to punish seditious speech-this Article demonstrates that the First Amendment protects the clash of competing viewpoints even at the risk of public disorder. It contends that counterdemonstration is no less deserving of First Amendment protection than the right to protest generally-and that, absent a clear, present danger of imminent lawless conduct, counter-demonstrators otherwise have a right to deliver their message in the same forum, and at the same time, as those whose message they oppose.

Recommended Citation

Kevin Francis O'Neill and Raymond Vasvari, Counter-Demonstration as Protected Speech: Finding the Right to Confrontation in Existing First Amendment Law, 23 Hastings Const. L.Q. 77 (1995).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol23/iss1/2