The arrest of a group of Muslim students in California for heckling a speech by the Israeli ambassador to the United States has evoked an unusually heated response, injecting geopolitical rancor into an already-polarizing question on the limitations of free speech on college campuses. Varying ideological loyalties aside, however, the case of the “Irvine 11” raises important questions about not only the “right to heckle,” but also about selective enforcement of generally applicable limitations on that right.
The case arose out of an on-campus event at the University of California-Irvine in February 2010 at which Israeli Ambassador to the United States Michael Oren was a featured speaker. His speech, hosted by a student organization but under the auspices of the university, was on the topic of US-Israeli relations. During Oren’s speech, ten students rose in succession and vocally expressed their disapproval of Israeli policy and of Oren in such statements as, “Propagating murder is not an expression of free speech!” Each student was led out of the auditorium by security immediately following their exclamations; after the individual interruptions a larger group of students arose in unison and left the hall while chanting. After an admonishment to the demonstrators from a university official at the podium, Oren eventually resumed and finished his speech. Nearly a year later, prosecutions were initiated against the ten students who individually spoke out—as well as against one of the chanters from the larger group—for violating a California statute which authorizes misdemeanor charges against anyone who “willfully disturbs or breaks up any assembly or meeting.”
Not surprisingly, the charges and the recent guilty verdict against the students have triggered hyperbolic rhetoric—rhetoric which seems to mirror, also unsurprisingly, underlying ideological loyalties with respect to the Israel-Palestine conflict. Defenders of the students characterize the charges as straightforward violations of their freedom of speech. Salam al-Marayati, president of the Muslim Public Affairs Council, called the verdict a “sad day for democracy,” calling into question whether we “live in a democracy, not a dictatorship.” The left-wing ANSWER coalition declared that “the Eleven were prosecuted and convicted because they are Muslim.”
Those on the other side of the ledger frame the issue, just as straightforwardly, as a defense of Oren’s speech rights against the attempts of hecklers to “censor” him. Alan Dershowitz announced in an editorial that the case was a clear demonstration of the inadmissibility of the “heckler’s veto.” “It was these young criminals who were trying to chill, indeed freeze, the constitutional rights of the speaker and those who came to hear him.” Orange County DA Tony Rackauckas—a staunch conservative who has had plentiful brushes with controversy – lauded the prosecutions as a strike against “thuggery,” a statement that “we will not tolerate a small band of people who want to hijack our freedoms.” In an even more disturbing use of loaded language, the right-wing “Investigative Project on Terrorism” has described the incident as another example of an ongoing, wide-ranging “Muslim” struggle against American free speech rights.
In reality, of course, the rights of hecklers cannot be so easily resolved by recourse to pat, absolutist arguments for free speech; resolution of the issue is an exercise in line-drawing between competing protected interests. However—and despite the seemingly unjust excessiveness of prosecuting students for doing nothing more than speaking their minds—the California statute under which the Irvine 11 were charged is almost certainly constitutional as it has been constructed. The propriety of its enforcement in this case is an entirely different question.
The concept of the “heckler’s veto,” although used by many commentators including Dershowitz as a shorthand to describe the constitutional dilemma at work here, is not fully helpful in its application to these facts. More a rhetorical device than a coherent body of First Amendment doctrine, it has been used repeatedly by the Supreme Court to describe situations in which police silenced speakers (or denied them permits to speak in the first place), because of the hostility or violence of the audience reaction. See Terminiello v. Chicago. In other cases, it has been used to illustrate the concept that the easily offended or fragile cannot be allowed to serve as “censors” of others’ speech in the public sphere. See Cohen v. California, Reno v. ACLU. Here, by contrast, no one challenged Oren’s right to deliver his message, and there was never any question of silencing him as a consequence of the disturbances.
Nonetheless, the term points to an insight at the heart of the classical liberal conception of free speech; freedom of expression is to be tolerated for all, but only to the extent that it does not trample on the expressive rights of others. “Pure” speech, devoid of anything but its ideological content, can never be said to violate the rights of others to respond with their own pure speech. Ambassador Oren has no right to be shielded from the anti-Israeli sentiments of the Irvine students. Nearly all speech activity, however, is mixed with elements of conduct, and it is this conduct—and not the self-expression embedded within it—which can be properly restricted consistently with the First Amendment. Shouting matches and a cacophony of shouts and chants may be consistent with the promotion of freedom of speech on street corners or in public parks, but it is clear that more structured settings require the imposition of content-neutral decorum norms for the protection of speaker and audience alike.
The California Supreme Court has interpreted the state’s “heckler” statute in order to uphold this crucial speech-conduct distinction. The statute, Penal Code Section 403, is unconstitutionally overbroad as originally written. In prohibiting the act of “willfully disturb[ing] or break[ing] up any meeting,” the law makes no provision for context, degree of disturbance, or mode of speech; on its face, it could be used to prosecute mere booing. The California Court’s decision in In Re Kay, however, mandated that the statutory language be construed narrowly, in line with constitutional limitations: “The Constitution does not require that any person, however lofty his motives, be permitted to obstruct the convention or continuation of a meeting without regard to the implicit customs and usage or explicit rules governing its conduct.” Accordingly, the court ruled that Section 403 could be used to punish speech only when a defendant commits acts which (1) “substantially impair” the conduct of a public meeting (including speeches) and (2) in doing so intentionally violates the customs or norms which apply to that setting. The California courts have held, for instance, that a group of protesters who clapped in rhythm during a Congressman’s speech, but didn’t actually drown it out, could not be prosecuted; on the other hand, they upheld the prosecution of a man who dumped out a large bag of trash at a school board meeting to “make a point” about student littering.
As narrowed by In Re Kay, the statute seems to fall within the realm of constitutionally permissible, content-neutral speech restrictions; its context-sensitivity qualifies it as “narrowly drawn,” and the high threshold for “significant” disturbance leaves open ample alternate channels for communication of dissent. Since the government, acting through a state university, was also in some sense acting proprietarily here, it is important to note that this class of restriction appears to fall comfortably within the government’s ability to define the scope of a limited or nonpublic forum in a content-neutral manner.
That said, the prosecution of the Irvine 11 here remains problematic, for two reasons.
First, there is a serious question whether the students were intentionally violating the audience speech norm as it applied to a setting like the Oren event. In situations in which the limits of acceptable protest are unclear, the Kay court found that a warning should be given. Here, as the prosecution pointed out at trial, a university chancellor admonished the audience before the speech began, saying that, “We have the highest expectation for civility and respect.” Nevertheless, the students’ defense argued that their conduct was not outside of reasonable expectations that vigorous dissent would be tolerated in an academic setting. The defense called an Irvine professor who testified that the hecklers were acting within the historical tradition of student protest; another UCLA professor testified that the protest was within the norm because, although interrupted, Oren was able to finish his speech in orderly fashion and deliver his message.
The students may not have been so innocent in their motives. The prosecution pointed to emails which indicated that their goal in coordinating their efforts was not only to deliver a message, but also to stymie Oren’s speech to the greatest extent possible. Even assuming that they deliberately violated speech norms and made themselves culpable under the letter of the statute, however, a serious question remains about selective enforcement. The reason the case attracted so much attention in the first place is its palpable excess; it violates our expectations about the normal government response to hecklers just as surely as the students themselves violated the decorum standards of the event itself. As the California Supreme Court pointed out, the filing of criminal charges in such a situation is rare—and the fact that the government chose to come down with all its weight on a group of Muslim college students protesting an Israeli speaker is a further red flag. One of the students’ attorneys points to the Orange County DA Office’s habit of referring to the situation as the “Muslim” case in its internal emails as damning proof of selective animus. More plausible than outright discrimination against Muslims, perhaps, is the inference that the prosecutor’s office of a rabidly conservative, fervently pro-Israel constituency in Orange County decided that throwing the book at the students would be good politics.
Regardless of whether this was legally cognizable discrimination or selective enforcement, it is almost surely bad policy and poor precedent. As Erwin Chemerinsky, the dean of the Irvine Law School and a First Amendment expert himself, has noted, the case is a serious miscarriage of prosecutorial discretion. While conceding—rightly—that the students exceeded the bounds of their own free speech rights and violated the letter of California law, he found the response disproportionate and counterproductive. “It has made martyrs of students who behaved wrongly, but who don’t deserve to be criminals….It deepened wounds that will be difficult to heal. It is inexplicable to me why the district attorney prosecuted this case. What is clear is that he failed in his most important duty: to do justice.” The most unfortunate aspect of the Irvine case is that it furthers the perception, unjustified or not, that the government’s response to speech protests can be expected to vary with the political status of the speaker or the marginalized status of those who raise their voices in dissent.