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Alan Dershowitz, Criminal and civil liberties lawyer

Allan Dershowitz: Conviction of the Irvine Ten Constitutionally Sound

Alan Dershowitz, July 11 2011,

Ten students who set out to prevent Israeli Ambassador Michael Oren from speaking to students at the University of California Irvine campus have been convicted of a California misdemeanor and sentenced to probation and a fine. The California statute is designed to protect the First Amendment rights of a speaker and his audience against those who would censor the speaker by deliberately disruptive conduct. The conduct engaged in by the students, acting on behalf of a University of California Muslim group, was more than merely disruptive in the sense of episodic booing or heckling. It was calculated to "shut down", in the words of one of the students, Ambassador Oren. In such a case, the First Amendment is clearly on the side of the prosecutor who seeks to prevent the censorship of protected speech, rather than on the side of those who have conspired to censor speech with which they disagree.
No reputable constitutional scholar would defend the right of students to conspire to prevent an invited speaker from presenting his speech. Most universities have rules prohibiting the "heckler's veto" from silencing an invited speaker. Yet, because the students in this case were Muslims who were trying to prevent an Israeli diplomat from speaking, many on the hard left are making heroes of these ten censors, and villains of prosecutors who did their duty in protecting the First Amendment. Even the American Civil Liberties Union of Southern California, which is supposed to protect the First Amendment right of speakers, came down on the wrong side of this issue.
The Dean of the University of California at Irvine Law School, Erwin Chemerinsky, has tried to split the difference by arguing that the conviction was constitutional, that the "jury which found them guilty faithfully applied [the] law to the facts of this case," but that the prosecutor who brought the case against these students "failed in his most important duty: to do justice." While I understand why a dean might take this somewhat convoluted position on prudential grounds, Chemerinsky's argument simply doesn't hold water.
Chemerinsky "strongly disagree[s] with those who try to defend the students as engaging in free speech." He acknowledges that "the First amendment does not protect the right of people to go into an auditorium and try to shout down a speaker." He is right in concluding that "no court would find that the students were engaged in protected speech." So far, we agree. But he goes onto argue that the prosecutor should have employed his discretion to decline prosecution against these students, because they had already been disciplined by the university. But the university discipline has been worn by the students as a red badge of courage. They have been treated as heroes and the slap on the wrist discipline has certainly not deterred them or other students from conspiring to silence other controversial speakers, especially those who try to make the case for Israel.
It was imperative, therefore, that a public prosecutor apply the law to these students, because to do otherwise would be to tolerate, if not encourage, conduct that would undercut the constitutional rights of an invited speaker. This is especially true because the University of California is a state-run institution to which the First Amendment applies in full force. A prosecutor has the obligation to protect the First Amendment, especially if the university has imposed discipline that is inadequate to assure that censorial conduct will be deterred. Moreover, these students must be made to understand that their conduct is not only morally indefensible; it is criminal. It is entirely just that these students should have a criminal record and that the world should know that they tried to prevent the exercise of First Amendment rights because they disagreed with the content of an invited speaker's remarks. They should be made to pay a heavy price for their criminal conduct.
The same would be true if Jewish students were to try to prevent an anti-Israel speaker from presenting the case against Israel. No student, no matter how strongly they feel that their view is the only correct one, has the right to prevent the open marketplace of ideas from operating on a university campus, as these ten students tried to do.
The successful prosecution of the Irvine Ten will not "chill" free speech rights of hecklers. No one should or would be prosecuted for simply booing the content of a speech, leafleting a speaker, holding up signs in the back of the auditorium, conducting a counter event or demonstration. 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. They should not be treated as heroes by anyone who loves freedom and supports the First Amendment.
It was a good day for the First Amendment when the prosecutor decided to apply the law to their censorial conduct. It was another good day for the First Amendment when the jury appropriately convicted them. And I hope it will be yet another good day for the First Amendment when the appellate courts affirm this constitutionally just conviction.
This article appeared in the Orange County Register
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