Ten Muslim students were found guilty on misdemeanor conspiracy charges for their “plot” to shout down the Israeli ambassador during a speech at UC Irvine.
LAT (“‘Irvine 11’ jury finds all 10 students guilty“):
After more than two days of deliberation, an Orange County jury on Friday found 10 Muslim students guilty of two misdemeanors to conspire and then disrupt a February 2010 speech at UC Irvine last year by the Israeli ambassador to the United States.
[…]
In a case that garnered national attention over free-speech rights, the trial centered on conflicting views of who was being censored. Prosecutors argued that Ambassador Michael Oren was “shut down” when his speech was interrupted by students who took turns shouting preplanned phrases in a crowded UC Irvine ballroom.
Six defense attorneys argued that the students, seven from UC Irvine and three from UC Riverside, were only following the norm of other college protests and were being singled out. A guilty verdict, the defense had said during the trial, could chill student activism and the free exchange of ideas at colleges nationwide.
University administrators disciplined some of the students involved and suspended the campus Muslim Student Union, whose members participated in the protest, for an academic quarter. The group is still on probation.
[…]
Erwin Chemerinsky, the dean of UC Irvine’s Law School, has said that although freedom of speech is not an absolute right, university sanctions were enough for the students. But he also added that he believes criminal sanctions go too far. Chemerinsky told The Times last week that “it makes no sense” to use such resources. “It’s so minor.”
I tend to side with Chemerinsky on this one. We’ve long recognized that there are time, place, and manner limitations on the right of free speech. An invited guest and his audience have free speech rights, too, and in my judgment those outweigh the right of protestors to demonstrate.
The conduct of these students was shameful and deserved sanction from the school. I could even see civil penalties under disturbing the piece statutes. But the notion that an orchestrated demonstration is some sort of criminal conspiracy is absurd on its face.
UPDATE: Eugene Volokh sheds some useful light on this ruling. Despite talk of “conspiracy,” here’s what the legal controversy involved:
The relevant statute, Cal. Penal Code § 403, says: “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character … is guilty of a misdemeanor.” In re Kay (1970) held that, to be convicted under the statute, the prosecution must show “that the defendant [1] substantially impaired the conduct of the meeting by intentionally committing acts [2] 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,” and [3] “the defendant’s activity itself — and not the content of the activity’s expression — substantially impairs the effective conduct of a meeting.”
This strikes me as an entirely reasonable “time, place, and manner” restriction wholly consistent with the core principle of free speech that there be no abridgment on account of the content of the speech. That is, the students here are being punished for interfering with the rights of those assembled to hear the speech, not for the ideas they’re expressing.
Volokh adds,
First, the customs of presentation at universities seem to me to be much less tolerant of heckling; there is plenty of time for audience participation during Q & A, but shouting during the speech is not at all customary. (Perhaps the California Supreme Court got it wrong in interpreting the statute in a way that requires a determination of the particular customs of a certain kind of event; but that seems to be required under the Kay decision.)
Second, and relatedly, the university administrators repeatedly stressed to students that such interruptions were improper. To the extent that Kay focused on what was said by the authorities during the meeting as evidence of custom (“Indeed, the principal speaker at the rally, an elected public official, stated that the relevant custom sanctioned the demonstrative conduct of petitioners as a legitimate means of expression”), this cuts the other way here.
So, the Muslim Students Association was free to protest outside the meeting hall. They were free to organize an alternative event, to write op-eds in the school newspaper criticizing the ambassador, and so forth. And, most likely, they would have been welcome to line up during the Q&A session and respectfully address their concerns to the ambassador.
In my original post, I noted that this struck me as a case of “disturbing the peace” rather than criminal conspiracy. Sure enough, § 403 is the first of seventeen under Title 11 of the California Code, which is titled “Of Crimes Against the Public Peace.”
