Leading Legal Scholar Opines on UC Irvine Disruptors

We all know that UC Irvine has been a hotbed for intense anti-Israel activism, which sometimes has slipped into outright anti-Semitism. Even when it’s not anti-Semitic, UCI activities, often led by their Muslim Student Union or affiliated parties, have taken on-campus anti-Israel activism to another level. Fortunately, most of the time, these attacks reflect poorly on the activists, so that even though they succeed in getting their message publicized, reasonable people often conclude that the protesters are in the wrong.

Similar conclusions have been drawn by many regarding the disruptions of Michael Oren, a historian who is currently Israel’s ambassador to the US, a couple of weeks ago at the UCI campus. One by one, 11 students, 8 from UCI and 3 from UC Riverside, disrupted the talk so that the audience heard his speech in bits and pieces and never had a chance to ask him questions. The students were warned that they would be removed and there would be consequences, yet they persisted to disrupt the speech. Upon removal from the auditorium, they were arrested and their names were released. It turned out that the president and vice-president of UCI’s MSU were involved as were other members. Despite this, and the website posting against Oren’s appearance, the MSU has denied any connection to the disruptions.

Since then, the campus has entered into a debate about freedom of speech. The defenders of the disruptions claimed that the offenders were merely exercising their free speech rights and, in fact, by removing them from the hall and by arresting them, those rights have been being quashed. Those who oppose the disruptions make the claim that the First Amendment does not give carte blanche to disrupt the right of a speaker to express his views or to have his listeners be prevented from hearing those views.

Well, it turns out that UCI has a recently opened law school and it is headed by Erwin Chemerinsky, its founding dean. As a side note, it appears that his hiring involved unfavorable attention by some Repubicans. Chancellor Drake at first announced that Chemerinsky wouldn’t receive the job he was offered, and denied any outside interference. However, after it was shown that he had been contacted by interested parties, he traveled to meet with the professor, who had recently been called one of America’s top 20 legal thinkers by a prominent legal publication. It appears that Mr. Chemerinsky schooled Mr. Drake about academic freedom, because he got his offer and the job back again.

Needless to say, between allowing UC Irvine to become a punching bag for all sorts of interests, his weak condemnation of the MSU protesters at the Oren speech and the quick turnaround with Chemerinsky and his job prospects, one wonders whether another leader would serve this campus better than Drake.

Anyhoo, Chemerinsky is an expert in “constitutional law, federal practice, civil rights and civil liberties, and appellate litigation.” He’s also Jewish. And, he wrote an editorial in the LA Times about “UC Irvine’s free speech debate.” What does he think?

College campuses, especially at public universities, are places where all ideas should be expressed and debated. No speech ever should be stopped or punished because of the viewpoint expressed. Of course, there must be rules to regulate the time, place and manner of such expression to preserve order and even to make sure that speech can occur.

These general principles are unassailable, but their application to recent events at the University of California, Irvine, has attracted international attention. …

Eleven individuals were arrested, and those who are UCI students are facing disciplinary action. In the last week, I have been deluged with messages from those saying the disruptive students did nothing wrong and deserve no punishment, and also from those saying that the students should be expelled and that others in the audience who cheered them on should be disciplined.

Both of these views are wrong. As to the former, there are now posters around campus referring to the unjust treatment of the “Irvine 11” and saying they were just engaging in speech themselves. However, freedom of speech never has been regarded as an absolute right to speak out at any time and in any manner. Long ago, Justice Oliver Wendell Holmes explained that there was no right to falsely shout “fire” in a crowded theater.

The government, including public universities, always can impose time, place and manner restrictions on speech. A person who comes into my classroom and shouts so that I cannot teach surely can be punished without offending the 1st Amendment. Likewise, those who yelled to keep the ambassador from being heard were not engaged in constitutionally protected behavior.

Freedom 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. There is simply no 1st Amendment right to go into an auditorium and prevent a speaker from being heard, no matter who the speaker is or how strongly one disagrees with his or her message.

…
At the same time, I also disagree with those who call for draconian sanctions against these students or of punishment for a larger group. Only the students who were actually disruptive should be punished. Whether there will be criminal prosecutions is up to the Orange County district attorney. Within the university, the punishment should be great enough to convey that the conduct was wrong and unacceptable, but it should not be so severe as to ruin these students’ educational careers.

I bow my head in humility to Mr. Chemerinsky’s deep knowledge of the law and accept his verdict that “There is simply no 1st Amendment right to go into an auditorium and prevent a speaker from being heard.” I thank him for teaching me about the “Heckler’s Veto.”

My problem with his conclusion, however, is that it only deals with this incident and treats it as an anomaly instead of part of a larger pattern, which is easily provable. By absolving the MSU from any involvement in this case, despite their online call against Oren’s speech and the involvement of key members of this group in the disruptions, Chemerinsky only encourages groups to foment disruptive behavior on campus and if there are consequences to their members, claim innocence or ignorance and let those individuals hang without support. Of course, this type of absolution will mean that any group can organize these sorts of protests without fear of consequences.

I can understand this in matters where there is a bigger question mark about the involvement of the group in question, but in this case, this disruption was part of a much broader pattern.

A meaningful punishment is required for another reason. Chemerinsky himself notes that “Prior to this event, campus officials heard rumors that some members of the Muslim Student Union planned to disrupt the ambassador’s speech…When asked, the officials of the Muslim Student Union denied any plans to do this.”

We don’t know who the MSU officials were, but we can assume that the president and vice-president of the group have to take responsibility for any actions taken by their officials when they are speaking on behalf of the group. Since those two individuals (the pres and VP) were directly involved in the disruptions at the Oren talk, their responsibility not only grows far beyond that of the average MSU student, but it directly implicates the MSU as an organization since they would have had prior knowledge that the university was concerned about such disruptions.

In other words, to allow the MSU to get away with officially denying involvement in the disruptive activities that the university sought to quell, even though its members, and particularly its leadership, were direct participants, is no different than an abuser punching somebody after being asked not to, and then denying that the punch came from the abuser because his right hand acted independently.

Along with punishing the MSU, Chemerinsky should reconsider his position about what makes for an appropriate punishment for these protesters. He doesn’t believe that they deserve the punishment “so severe as to ruin these students’ educational careers.”

In light of the fact that it is virtually impossible that MSU members who participated in the disruption did not know that the university had asked them not to cause disruptions, and in light of the fact that the individuals involved were senior enough to be leaders of this on-campus group and in light of the fact that they are adult students who were given the opportunity not to behave in a manner inimical to the request and best interests of the university, why should the university permit them to continue with their studies? They openly lied to the university.

They may be able to claim that the university was speaking to the MSU, not to its individual student members, but since those members comprise the MSU’s leadership, even as individual students with no MSU backing for their actions, they knowingly went against the university’s desire to avoid disruption.

It seems to me that a severe punishment is due. Should they be expelled? Maybe not. That would galvanize support around them. However, a break from studies to mull over their behavior and learn from it seems appropriate here, as would some permanent mark on their school transcripts explaining why there is a gap between semesters.

The issues here go beyond stealing the opportunity for students at the university to hear a speaker and learn from the exchange of ideas. They touch directly on the ideals of a university as a place where integrity is a must because a lack of integrity undermines properly imparting and receiving knowledge. This is why plagiarism is treated severely in the academic world. Lying to a university’s administration would seem to be on the same plane.