The 11 students who each briefly disrupted Israeli Ambassador Michael Oren's speech last week at UC Irvine have no 1st Amendment protection for their actions and deserve to be punished, writes my colleague, law school Dean Erwin Chemerinsky, in his Feb. 17 Times Op-Ed article. Reading Chemerinsky's piece, you'd think a group of hysterically angry Muslim men prevented Oren from speaking at all. But the situation, as a look at a video recording of the event makes clear, was much more complicated.
Chemerinsky correctly points out that government bodies, including public universities, have the right to regulate speech on campus; otherwise, any speaker -- professors included -- could be shouted off stage by those who disagree. He points to Supreme Court Justice Oliver Wendell Holmes' observation that there's no constitutional protection for shouting "fire" in a crowded theater.
But can we really compare these brief disturbances to yelling "fire" in a theater? Oren was scheduled to speak and answer questions for an hour and a half. The protests by the students were clearly aimed at disrupting his speech, but it's just as clear that they were not going to scuttle it. Each outburst was brief, and no students were forcibly removed. As Chancellor Michael V. Drake pointed out in his condemnation of the protests the next day, Oren was able to finish his speech; indeed, there was enough time left for him to answer audience questions had he chosen to do so.
Moreover, UC Irvine's policies on student conduct offer little guidance as to whether the protests against Oren's speech crossed the line. The section on free speech and advocacy I was pointed to by university officials sets no clear boundaries; it states, in part, "The university is committed to assuring that all persons may exercise the constitutionally protected rights of free expression, speech, assembly and worship," and that protests "must not, however, interfere with the university's obligation to protect rights of all to teach, study and fully exchange ideas." But since Oren was not ultimately prevented from speaking, how the "Irvine 11" actually interfered with the university's obligation to protect the Israeli ambassador's 1st Amendment rights is unclear.
There is another key issue my colleague didn't touch on: the utter disparity in power between the students and the views they represent, and Oren and the government he represents. There is little doubt that the law school and the political science department, each of which co-sponsored the event, rightfully saw his presence as a chance to engage an important actor on issues of concern to the UC Irvine community. From the Israeli side, however, Oren's appearance was part of a sophisticated effort by the Israeli government and its supporters to present Israel in the most positive light possible. Oren was speaking not as an academic presenting research (his former job) but as an official representative of his government. With a government and largely sympathetic media behind him, Oren can get his points across despite a handful of fleeting outbursts by genuinely aggrieved students.
In fact, hard-line advocates for Israel aren't strangers to "uncivil" behavior against adversaries. In 2002, the Jerusalem-based World Union of Jewish Students published, with sponsorship by the Jewish Agency for Israel, a manual for Israel advocacy titled the "Hasbara Handbook" (hasbara is the Hebrew world for "explanation," though the term is associated with government propaganda). It specifically lists "name calling" as the first of "seven basic propaganda devices" available for use by activists. It also declares, "For the Israel activist, it is important to be aware of the subtly different meanings that well-chosen words give. Call 'demonstrations' 'riots', many Palestinian organizations 'terror organizations', and so on."
Given this, calling for a pound of flesh from the Muslim students for their protest seems disingenuous to say the least.
Most disturbing is the chilling effect on free speech and dissent the response to the student protests could have on UC Irvine. Following the incident, university officials sent an e-mail to the entire student body warning that similar protests would be considered illegal and create "a very serious situation." Specifically, and without elaboration, they informed them that "if anyone 'without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character . . .' [they] can be charged with a misdemeanor."
Imagine how a 19-year-old student would react to being told that she could be arrested and face expulsion from the university for merely engaging in vigorous protest against a speaker who supports forced female genital mutilation or the execution of homosexuals -- or, more to the point, a speaker who represents a government that engaged in these practices.
Marginalized voices sometimes have little recourse except to push the boundaries of polite debate to get their messages heard. They may ruffle feathers, upset audience members and perhaps even exercise extremely poor tactical and political judgment. In this case, the "Irvine 11" played into deeply ingrained stereotypes of irrational and unreasonably angry Muslim men. But should they be punished without clear standards in place and when similarly rowdy protests in the past led neither to arrests nor university discipline?
My hope is that the members of the UC Irvine community can use this event as a teachable moment, coming together as a campus more clearly to define the limits of acceptable protest, to understand the realities behind the passions displayed by the "Irvine 11" and to help figure out how to bridge the chasm between Muslim and Jewish students on campus. Turning UC Irvine instead into a 1st Amendment battleground would only undermine the vigorous give-and-take essential to the preservation of free speech and academic freedom on our campus.
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