Heckler Suit


June 7, 2002


BOB GARFIELD: In 1998, a man named Thomas Markovich was arrested with two other men after heckling former President George Bush at a meeting in Austin, Texas. The charges were dismissed on constitutional grounds before the case came to trial, but a higher court reversed that decision, and this week the highest appeals court in Texas ruled that yes, there was sufficient constitutionality to the anti-heckling statute, or as Ken Oden might have it, the "pro-meeting statute." He is the county attorney for Travis County, Texas. After having successfully appealed the initial ruling of unconstitutionality, his next job is to bring charges against Mr. Markovich. Ken Oden, welcome to On the Media.

KEN ODEN: Good to be here.

BOB GARFIELD: Tell me please what exactly Thomas Markovich did.

KEN ODEN: He disrupted a lawful public gathering by substantially impairing the ability to conduct the meeting. The allegations are that several individuals began yelling long enough and loud enough that each one would be taken from the chamber at which time the next would start.

BOB GARFIELD: So it was a conspiracy of heckling; serial heckling. [LAUGHTER] Were the hecklers apprehended and ejected?

KEN ODEN: Yes.

BOB GARFIELD: And President Bush then did what? Did he continue?

KEN ODEN: To my knowledge, he did eventually.

BOB GARFIELD: Did any of these men threaten the president with any kind of physical harm?

KEN ODEN: Not to my knowledge, no.

BOB GARFIELD: And as far as you know they didn't present any physical danger to those around them. It was strictly a, a political protest.

KEN ODEN:It was strictly some kind of verbal protest. I don't think there was any kind of intent to physically harm anyone or to threaten physical harm.

BOB GARFIELD:So apart from the fact that they were particularly cunning and organized and particularly obnoxious maybe, tell me again why in the world you're prosecuting them?

KEN ODEN: Well I will tell you why in the world I'm doing it, and it's because it's an old concept -- as old as our Constitution, and that is the First Amendment has rights not only for the protester but there are corollary rights for the speaker and the audience. If what is proven is conduct beyond just heckling, conduct that shows an intent to actually prohibit the meeting from happening or at least substantially impair it, then you would have a violation because if you didn't have that kind of limitation, you would never have the assurance that any kind of public meeting could happen, and it's just not the kind of First Amendment right that protects an aging former president. That kind of right is the right that says your civic organizations --every kind of public meeting -- your church service can continue. There is a right under the First Amendment for the meeting to be able to continue.

BOB GARFIELD:But this was not a church service. This was political commentary or political heckling. The fact that they were doing this to President Bush about his policies -- isn't that what makes this a First Amendment case and not a-- disturbing the peace case.

KEN ODEN: I think it certainly is exactly the same in all those settings because it doesn't depend on the content of the speech. I have no honest choice but to defend the statute, and that's what we've done. The statute is - and a very American principle in my opinion. I'm a hard core liberal. I would bet most of the things that the protesters were yelling at the former president on that day I would have been in considerable agreement with, personally. But it is very much not about this case and not about any particular defendant. It's about standing up for the constitutionality of a statute that says, at least in some small way, the rights of the speaker and audience is part of the equation in looking at protest behavior.

BOB GARFIELD: All right. Thank you very much.

KEN ODEN: You're welcome.

BOB GARFIELD: Ken Oden is the prosecuting attorney for Travis County, Texas.

BROOKE GLADSTONE: Coming up, Clear Channel taps workers for political capital, and the CIA goes for a media makeover.

BOB GARFIELD: This is On the Media, from National Public Radio.