The Irvine 11: Let’s Not Make Martyrs Out of Ruffians

An Article by Anne-Marie D. Dao

Abstract

The right to free speech is not an absolute right.  An orchestrated “University of Chicago style” disruption of U.S. Israeli Ambassador Oren’s speech resulted in the arrest of eleven Muslim student activists (the “Irvine 11”).  The subsequent prosecution of the Irvine 11 has become the center of controversy. This paper explores the constitutional soundness and public policy implications of the criminal prosecution. 

Introduction

In February 2010, the University of California, Irvine invited Israeli Ambassador to the United States Michael Oren to the university to deliver a lecture on American-Israeli relations.[1]  UC Irvine’s Department of Political Science, Center for the Study of Democracy, School of Law, Anteaters for Israel, College Republicans, Model United Nations, and the Middle East Studies Student Initiative, among other student groups, co-sponsored the event.[2]  Anticipating a contentious audience,[3] then-Chair of the Department of Political Science Mark Petracca introduced Ambassador Oren with the assertion, “we expect and we relish spirited discussion…but we also have the highest expectation for civility and respect.”[4]  Despite this expectation, disruptions began within seconds of Ambassador Oren taking the stage, and Professor Petracca’s pleas for civility and respect were left unanswered.

“Michael Oren, propagating murder is not an expression of free speech.”[5]  Quickly after a student shouted these words at Ambassador Oren, cheering, jeering, and clapping erupted in support of the disruptive student disruptor.[6]  This happened eleven times during the Ambassador’s speech, despite reprimand from both Professor Petracca and Chancellor Michael Drake.[7]  Professor Petracca even warned students that they were violating university policy and that they would be punished for their continued violation.[8]  After several interruptions that prevented Ambassador Oren from speaking, Professor Petracca again took the microphone to admonish the audience’s behavior: “Shame on all of you. All you did today was embarrass yourself and the university.”[9]

Still, students continued to shout statements such as “Michael Oren you are a war criminal,” “[i]t’s a shame this University has sponsored a mass murderer like yourself,” “[y]ou sir are an accomplice to genocide,” “Michael Oren, murder is not free speech” and chant “Whose University? Our University.”[10]  After each exclamation, the disruptor would walk towards the aisle and allow for exit and arrest by waiting police officers.[11]  When Ambassador Oren left the stage, Chancellor Drake came to the microphone, and stated that, “disruptions of academic freedom of the type that have occurred here earlier today” would not be tolerated.[12]  In toto, after Ambassador Oren was persuaded to come back to the stage to finish his talk, the disruptions consumed half of the event’s scheduled time slot, and the question-and-answer session was cancelled.[13]

Though the disruptive actions occurring on February 8 seemed orchestrated, this belief was not substantiated until the Orange County District Attorney obtained posts, by search warrant, from a Google message board belonging to the Muslim Student Union (“the MSU”).[14]  These clarified that the MSU had meticulously planned and executed the disruption to Ambassador Oren’s speech.  One post read: “[the Muslim Student Union] will be staging a University of Chicago Style disruption of the Ambassador’s speech”[15]  The posts warned not to ask questions, as that would allow the Ambassador to have control of the microphone.[16]  Instead, the objective was to “push the envelope” and to “set a precedent.”[17]  Another post flouted legal ramifications, stating that arrest would result “in nothing permanent, or a misdemeanor, which would be dropped.”[18]  The message board users categorized disruptors into: “those willing to disrupt if there were no consequences,” those “willing to go all the way,” and “reserves.”[19]  In fact, disruptors were given index cards so as to not forget their statements, which they were instructed to yell “VERY LOUD, firm and strong.”[20]

Thus, it seems Professor Petracca’s goal of a civil and respectful discussion, one in which people with opposing viewpoints would pose questions to Ambassador Oren during the question and answer session, would not be achieved.  The MSU had come up with multiple plans to ensure as much.  By the night’s end, eleven students were arrested—eight from UC Irvine, and three from UC Riverside—and cited for disturbing a public event.[21]  At the time, none had been criminally charged.  Almost a year later, the “Irvine 11”—as they have been dubbed—were charged with misdemeanor conspiracy to commit a crime and misdemeanor disruption of a meeting.[22]

In filing the charges, Orange County District Attorney Tony Rackauckas rationalized the prosecution under the premise that the Irvine 11’s actions were, “meant to stop this speech and stop anyone else from hearing his ideas, and they did so by disrupting a lawful meeting.”[23]  It is this prosecution, and the intense debate regarding the freedom of speech which ensued, that is the focus of this paper.  Part I discusses constitutional law principles, including time, place, and manner restrictions on speech.  Part II goes over the California statutes under which the Irvine 11 were prosecuted.  Part III posits the constitutional soundness and public policy implications of the criminal prosecution.

I. Time, Place, and Manner Restrictions

The First Amendment states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”[24]  Though written as an absolute right, the First Amendment has never been interpreted as such by the Supreme Court.[25]  In fact, the Court has articulated restrictions on free speech, making clear that the right does have limitations.

A.      General First Amendment Principles

Generally, speech is protected by the First Amendment—under reasonable time, place, and manner restrictions—unless it falls into one of the unprotected and lesser protected categories of speech.  Regulations of speech that fall into these lesser or unprotected categories are not subject to strict scrutiny analysis as content-based regulations typically are.  Categories of unprotected speech include speech that incites unlawful or violent conduct, [26]  fighting words and offensive speech,[27] obscenity and pornography.[28]  Additionally, there are categories of lesser protected speech, where the government enjoys a higher ability to regulate.  These include commercial speech,[29] and sexually oriented speech which does not meet the test for obscenity.[30]

Because speech often requires a physical location to occur (assuming one does not have a readily available platform in television, radio, or a newspaper), another First Amendment issue is what property can be used for speech.  The Supreme Court has identified several types of public property and affixed rules as to when the Government can properly regulate each type of public property: public forums, limited public forums, and nonpublic forums.  A fourth type of property—private property—is not subject to the constitutional demands of the First Amendment.

Public schools are obviously not private property, and as such it can be argued that public forum doctrine analysis should apply to speech occurring on public schools.  For the most part, the Court has not relied on forum analysis and has instead articulated a separate set of tests for dealing with speech in public schools.  The leading case in school speech, Tinker v. Des Moines, held that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[31]  This being the case, school officials can only regulate speech in the event that the students’ activities would “materially and substantially disrupt the work and discipline of the school.”[32]

This protectiveness of student free speech has been curtailed in recent years, granting more deference to school authorities.[33]  In Bethel School District, a student delivered a speech to nominate a classmate for a student government seat.[34]  The speech was filled with “elaborate, graphic, and explicit sexual metaphor(s).”[35]  The school punished the student and the lower courts held that the punishment violated the student’s constitutional rights. The Supreme Court disagreed, holding that the, “First Amendment did not prevent the School District from disciplining respondent for giving the offensively lewd and indecent speech at the assembly.”[36]  The Supreme Court’s most recent First Amendment case relating to schools held that law students’ right to free speech can be constitutionally curtailed because, “in regulating property in its charge, [schools] may impose restrictions on speech that are reasonable in light of the purposes of the forum and viewpoint neutral.”[37]

Thus, it is clear that public school officials have latitude in regulating student speech on a variety of justifications, including the prevention of disruptive behavior.

B.  Application to the Irvine 11

After the events of February 8, Chancellor Drake issued a statement condemning the group’s behavior as “intolerable.”[38]  Drake continued:

Freedom of speech is among the most fundamental, and among the most cherished of the bedrock values our nation is built upon. A great university depends on the free exchange of ideas. This is non-negotiable. Those who attempt to suppress the rights of others violate core principles that are the foundation of any learning community. We cannot and do not allow such behavior.[39]

The University went on to suspend the MSU for one quarter, ending December 31, 2011.  Additionally, the MSU is required to complete 100 hours of community service and will remain on probation through December 2012.[40]

Some applauded this suspension of the MSU, arguing that it established “an important and appropriate precedent…[sending] a powerful message to other universities across the nation.”[41]  After the suspension decision was reached, the MSU at UC Irvine released a statement claiming the suspension would “create a chilling effect and deprive Muslim students—both current and incoming—of a place where they can develop a sense of community.”[42]

The right to freedom of speech is not an absolute one.  In fact, the Dean of UC Irvine School of Law, Erwin Chemerinsky, opined, “[f]reedom of speech, on campuses and elsewhere, is rendered meaningless if speakers can be shouted down by those who disagree.  The law is well established that the government can act to prevent a heckler’s veto — to prevent the reaction of the audience from silencing the speaker.”[43]  It is not the punishment from the University; however, that has received the most criticism.  Critics met the Orange County District Attorney’s decision to charge the Irvine 11 with fervor as well.

II. Criminal Prosecution of the Irvine 11

The Irvine 11 were charged with violating two California Statutes: misdemeanor conspiracy to commit a crime and misdemeanor disruption of a meeting of a public assembly.  Since the charges were announced, many groups, including the American Civil Liberties Union of Southern California have urged the charges to be dropped.[44]  One hundred faculty members from UC Irvine, including Professor Petracca and Dean Chemerinsky, signed a petition asking the District Attorney to drop charges against the Irvine 11.  Opponents to prosecution fear that criminal sanctions are excessive and “[t]he use of the criminal justice system will be detrimental to our campus as it inherently will be divisive and risk undoing the healing process which has occurred over the last year.  It also sets a dangerous precedent for the use of the criminal law against non-violent protests on campus.”[45]  UC Davis Law faculty echoed: “[r]esponding to these non-violent student protests by way of criminal prosecution will have a chilling effect on the students, staff, and faculty of the University of California, and place the principles of free speech and freedom of expression at risk.”[46]

Defending the criminal prosecution, a spokesperson from the Orange County District Attorney’s office asked: “[W]hat if we substituted different groups — what if this were the Klu Klux Klan [sic] who conspired to silence a speech by Martin Luther King?”[47]  What if?  It seems as though the passion felt for the Irvine 11 is driven, at least in part, by personal opinions on Middle Eastern Politics as opposed to strictly Constitutional First Amendment rights.  The issue then, is twofold: first, is the prosecution of the Irvine 11 constitutionally sound?  Second, if the prosecution is constitutionally sound, is it good public policy?  It is my belief that the answers to the questions are yes to the former, and no to the latter.

III. Analysis

A.  Prosecution of the Irvine 11 is constitutionally sound

As briefly mentioned in the Introduction, the Irvine 11 were charged with violating two statutes of the California Penal Code:[48] Section 403 (disturbance of public assembly or meeting) and section 182 (conspiring to commit a crime).[49]  Section 403 provides that: “[e]very person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in section 302 of the Penal Code…is guilty of a misdemeanor.”[50]  If convicted of a misdemeanor, each of the Irvine 11 can be punished by up to six months in jail, and be fined up to one thousand dollars.[51]

Two cases are relevant in analyzing whether prosecution of the Irvine 11 under section 403 is constitutionally sound: In re Kay,[52]  and McMahon v. Albany Unified School District.[53]

In re Kay involved the Fourth of July, a Congressman, and a boycott of grapes.[54]  Coachella, a city in the center of the major grape-producing regions of California, invited Congressman John Tunney to deliver a speech.  Congressman Tunney did not support a widely publicized boycott of non-union table grapes, a position at odds with many of Coachella’s Mexican-American residents, several of whom supported the boycott.[55]  A small number of protesters of Congressman Tunney’s speech “engaged in rhythmical clapping and some shouting for about five or ten minutes.”[56]  At one point during his speech, Congressman Tunney paused to “assure those protesting that they had a right to do so and to urge them to be grateful that they live in a country whose Constitution protects their right to demonstrate in that manner.”  Two weeks later, some of the protestors were arrested and charged with violating section 403.[57]

The Kay Court recognized that although methods of protestation, including “heckling, interrupting, harsh questioning, and booing” can be “impolite,” they “can nonetheless advance the goals of the First Amendment.”[58]  Furthermore, wary of the statute’s ability to infringe upon the First Amendment, the Kay Court established the following test: “that the defendant substantially impaired the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.”[59]  The Court further requires that criminal sanctions are appropriate only when “the defendant’s activity itself—and Not [sic] the content of the activity’s expression—substantially impairs the effective conduct of a meeting.”[60]  Applying the test to the case, the Kay Court recognized the informality of the public rally, and the customs attached to this sort of meeting.  Because the prosecution failed to show that the protestors’ actions—clapping, flag waving—are not generally accepted at such a meeting, or that their activities substantially impaired the conduct of the meeting, the protestors were not found guilty of violating section 403.[61]

The second relevant case discussing section 403 is McMahon v. Albany Unified School District.[62]  Though the arrestee here was not prosecuted under Section 403, the Court embarked on an analysis of the statute in order to determine if Mr. Mahon was falsely arrested.  The facts of the case are as follows: Mr. McMahon was upset about trash being left around his neighborhood by students attending nearby Albany High School, and spoke at several board meetings to voice his concerns.[63]  At one meeting, he brought a bag of litter he had collected to demonstrate his frustration.[64]  At a subsequent meeting, he brought five 13-gallon bags of trash and placed them around the room prior to the meeting.[65]  After discussion about his intentions with a board member, Mr. McMahon proceeded to empty his bag of trash in front of the Board.[66]  Mr. McMahon was not arrested by police because “no misdemeanor has been committed in police presence.”[67]  However, Mr. McMahon was arrested by the superintendent in a citizen’s arrest for willfully disturbing a public meeting.[68]  Mr. McMahon sued the District, board members, and the superintendent alleging false arrest, among other claims.[69]  The Court dismissed his false arrest claim.[70]  The Court then engaged in a discussion of the Kay case, which stated that section 403 was written “constitutionally infirm” and thus interpreted section 403 in a constitutionally permissible way, articulating the Kay test.[71]  The Court recognized the Kay Court’s emphasis on the nature of the meeting and the role of customary behavior.  Because Mr. McMahon dumped garbage on a cafeteria floor, it was clear that his conduct “exceeded the bounds of constitutionally protected speech and crossed the line into the ‘tumult of license.’”[72]

Applying the holdings in Kay and McMahon to the Irvine 11 case, application of section 403 seems to be constitutionally sound.  This case is easily distinguishable from Kay.  Whereas Kay involved a public, informal talk, the talk here was held inside where people had seats and a designated question-and-answer period.  Furthermore, while the hecklers in Kay clapped in unison, the hecklers at Irvine screamed at the Ambassador so as to impede his ability to deliver an audible speech.  Finally, in the Kay case, the Congressman was able to finish his speech, even stopping to let the hecklers know they were lucky they had the right to protest, whereas Ambassador Oren was unable to get a word in edgewise. This surely “substantially impairs the conduct of the meeting” as required by Kay.  Furthermore, though no criminal charges were filed in McMahon, the Court embarked on an analysis of Kay and section 403 that makes clear Mr. McMahon’s actions were not constitutionally protected—and the disruptive nature of the Irvine 11 was far worse than Mr. McMahon dumping trash in front of a school board meeting.

Accordingly, the answer to the first question posed above—is the prosecution of the Irvine 11 constitutionally sound—is yes.  The next question is whether this prosecution is good public policy.

B.  Criminal Prosecution in this case is bad public policy

Though the criminal prosecution may be constitutionally valid, it is not good public policy.  Put simply, it looks excessively forceful to use a statute which has been used sparingly in the last few decades against a group of students expressing their point of view on a very heated topic: Middle Eastern politics.  Perhaps it is the case that no disruptions rose to this level of incivility, rendering criminal prosecution via section 403 unnecessary, but the taint of selective prosecution in this case will overshadow the lesson—that those who willfully disturb speeches will be punished.

In fact, as Dean Chemerinsky pointed out, prosecution of the Irvine 11 has made it necessary to always criminally punish disturbances like this in the future: “[n]ow, of course, if this happens in the future and the D.A. doesn’t prosecute, then there’ll be claims of unequal justice, of discriminatory prosecution. And I think those would be very powerful criticisms.”[73]  This puts a large burden on the D.A.’s office to constantly monitor happenings at local Universities and colleges, all to ensure that this one criminal prosecution does not bear the taint of selective prosecution.  However, it seems as though this is precisely what D.A. Rackauckas wants.  He reasoned that if the Irvine 11 were not prosecuted in this case, that “we would not be able to proceed on another future case where say the Muslims were shut down in their attempt to give some kind of a speech.”[74]  D.A. Rackauckas’ reasoning is flawed because while prosecuting the Irvine 11 does ensure that future groups creating disturbances must also be prosecuted to avoid the taint of selective prosecution, it does not follow that if the Irvine 11 are not prosecuted here that no other similar cases could be prosecuted.

In other words, not prosecuting the Irvine 11 would not hinder the D.A.’s ability to prosecute others using this statute later, whereas prosecuting the Irvine 11 will create a duty in the eyes of the public to prosecute all similar cases in the future.  The bottom line is that the facts of this case give rise to a taint of selective prosecution in the eyes of the public.  As a District Attorney in a state facing pressing budget issues, it makes little sense to prosecute a case and obligate the office to prosecute all similar future cases in order to preserve the right to prosecute future similar cases—that ability will always be there, regardless of actions taken against the Irvine 11.  The decision to prosecute should be the result of a balancing test, and in this case—because of the state’s budgetary issues, coupled with the strong public sentiment that the Irvine 11 should not be prosecuted, in addition to the fact that the Irvine 11 have been punished by the University—when all the factors are balanced, it makes more sense to not go forward with a criminal prosecution.

In his classic paper, “The Aims of the Criminal Law,” Henry Hart stated that “[i]n the criminal law, as in all law, questions about the action to be taken do not present themselves for decision in an institutional vacuum.”[75]  Hart was making the point that “each agency of decision must take account always of its own place in the institutional system and of what is necessary to maintain the integrity and workability of the system as a whole.”[76]  It would seem as though D.A. Rackauckas has forgotten that the District Attorney’s office is but one part of a whole judicial system in the state of California.  The stated objectives of the D.A.’s office are to: promote a healthy community, build for the future of our community, and protect our community.[77]  Furthermore, community safety is touted as a “first and foremost” objective.  The fact that there are alternative punishments to criminal prosecution that were levied against the Irvine 11 by the University, and that the crime was non-violent should have been reason enough to conserve resources and not criminally prosecute the Irvine 11.

To be clear, the Irvine 11’s actions are reprehensible—they make a farce of freedom of speech and infringed on Ambassador Oren’s right to free speech by drowning him out.  Tyranny by those who are able to shout loudest is not permissible, and should not be permissible.  Because of their efforts in conspiring to shut down Ambassador Oren’s speech, the MSU at UCI deserves to be punished.  However, it is the University’s punishment of suspension and probation that they deserve—not criminal prosecution.

Whether or not criminal prosecution is deserved, it is an ineffective way of deterring others from acting this way in the future.  Criminally prosecuting the Irvine 11 turns the group into martyrs and the Irvine 11 frankly do not deserve that status.  If it is desirable to deter fractious behavior such as conspiring to shut down a speaker with whom one does not agree, turning the Irvine 11 into free speech martyrs is not the appropriate action.  The University of California, Irvine has already punished the MSU (and amongst them the Irvine 11) for their actions.  Only if the Irvine 11’s punishment is not overshadowed by a criminal prosecution tainted with the accusation of selective prosecution will the public grasp the severity of the wrongness of the Irvine 11’s actions.

Additionally, there is the concern that criminal prosecution of the Irvine 11 will bring backlash towards Jewish groups in Orange County for the district attorney’s actions.[78]  In fact, the president of Hillel, the Jewish student group at UCI, said “I am very aware that we had nothing to do with that process, but the line can get blurry in other people’s minds.”[79]  Criminal prosecution is not desirable if it makes conditions between the MSU and Hillel worse at UCI.

The mission of the Orange County District Attorney’s office is to “enhance public safety and welfare and create a sense of security in the community through the vigorous enforcement of criminal and civil laws.”[80]  The role of the prosecutor is to enforce laws in a manner that will improve the lives of Orange County residents.  In this case, enforcement of section 403 will not reach that goal—it will waste valuable funds, create friction, and possibly chill speech.  None of these outcomes is desirable and though District Attorney Rackauckas is well within his purview to prosecute the Irvine 11, this does not serve justice nor does it serve the residents of Orange County.

Conclusion

Orange County District Attorney Tony Rackauckas says he filed charges because:

We cannot tolerate a pre-planned violation of the law, even if the crime takes place on a school campus and even if the defendants are college students. In our democratic society, we cannot tolerate a deliberate, organized, repetitive and collective effort to significantly disrupt a speaker who hundreds assembled to hear.[81]

D.A. Rackauckas is right.  But the District Attorney serves the residents of Orange County and has an obligation to listen to what they want—the residents of Orange County want the Irvine 11 to be punished for their actions on February 8, 2010 and they have been by the University.  Using section 403 to criminally prosecute them only makes them martyrs, which is certainly not what the residents of Orange County, or anyone who respects freedom of speech and the First Amendment would desire.