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 \u201cIrvine 11\u201d raises important questions about not only the \u201cright to heckle,\u201d but also about selective enforcement of generally applicable limitations on that right.<\/p>\n
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\u2019s speech, ten students rose in succession and vocally expressed<\/a>\u00a0their disapproval of Israeli policy and of Oren in such statements as, \u201cPropagating murder is not an expression of free speech!\u201d 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\u2014as well as against one of the chanters from the larger group\u2014for violating a California statute which authorizes misdemeanor charges against anyone who \u201cwillfully disturbs or breaks up any assembly or meeting.\u201d<\/p>\n Not surprisingly, the charges and the recent guilty verdict against the students have triggered hyperbolic rhetoric\u2014rhetoric 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 \u201csad day for democracy,\u201d calling into question whether we \u201clive in a democracy, not a dictatorship.\u201d The left-wing ANSWER coalition<\/a>\u00a0declared that \u201cthe Eleven were prosecuted and convicted because they are Muslim.\u201d<\/p>\n Those on the other side of the ledger frame the issue, just as straightforwardly, as a defense of Oren\u2019s speech rights against the attempts of hecklers to \u201ccensor\u201d him. Alan Dershowitz announced in an editorial<\/a> that the case was a clear demonstration of the inadmissibility of the \u201checkler\u2019s veto.\u201d \u201cIt was these young criminals who were trying to chill, indeed freeze, the constitutional rights of the speaker and those who came to hear him.\u201d Orange County DA Tony Rackauckas\u2014a staunch conservative who has had plentiful brushes with controversy<\/a> \u2013 lauded the prosecutions as a strike against \u201cthuggery,\u201d a statement that \u201cwe will not tolerate a small band of people who want to hijack our freedoms.\u201d In an even more disturbing use of loaded language, the right-wing \u201cInvestigative Project on Terrorism<\/a>\u201d has described the incident as another example of an ongoing, wide-ranging \u201cMuslim\u201d struggle against American free speech rights.<\/p>\n 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\u2014and despite the seemingly unjust excessiveness of prosecuting students for doing nothing more than speaking their minds\u2014the 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.<\/p>\n The concept of the \u201checkler\u2019s veto,\u201d 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 <\/em>(or denied them permits to speak in the first place), because of the hostility or violence of the audience reaction. See Terminiello v. Chicago<\/em>. In other cases, it has been used to illustrate the concept that the easily offended or fragile cannot be allowed to serve as \u201ccensors\u201d of others\u2019 speech in the public sphere. See Cohen v. California, Reno v. ACLU<\/em>. Here, by contrast, no one challenged Oren\u2019s right to deliver his message, and there was never any question of silencing him<\/em> as a consequence of the disturbances.<\/p>\n 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. \u201cPure\u201d 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\u2014and not the self-expression embedded within it\u2014which 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.<\/p>\n The California Supreme Court has interpreted the state\u2019s \u201checkler\u201d 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 \u201cwillfully disturb[ing] or break[ing] up any meeting,\u201d 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\u2019s decision in In Re Kay, <\/em>however, mandated that the statutory language be construed narrowly, in line with constitutional limitations: \u201cThe 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.\u201d Accordingly, the court ruled that Section 403 could be used to punish speech only when a defendant commits acts <\/em>which (1) \u201csubstantially impair<\/em>\u201d the conduct of a public meeting (including speeches) and (2) in doing so intentionally <\/em>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\u2019s speech, but didn\u2019t 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 \u201cmake a point\u201d about student littering.<\/p>\n As narrowed by In Re Kay, <\/em>the statute seems to fall within the realm of constitutionally permissible, content-neutral speech restrictions; its context-sensitivity qualifies it as \u201cnarrowly drawn,\u201d and the high threshold for \u201csignificant\u201d 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\u2019s ability to define the scope of a limited or nonpublic forum in a content-neutral manner.<\/p>\n That said, the prosecution of the Irvine 11 here remains problematic, for two reasons.<\/p>\n