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The Incident At Irvine: When Does An Obnoxious Protest Become Criminal?

The Incident At Irvine: When Does An Obnoxious Protest Become Criminal?

Misdemeanor charges have been filed against 11 members of a Muslim student group who disrupted a speech by Israel’s U.S. ambassador at the University of California at Irvine last February. The defendants face six months in jail, probation or community service if convicted of one count each of conspiracy to disturb a meeting and one count each of disturbing the meeting. This will be an interesting case that will explore the legal line between the right to protest and an act of coordinated, criminal disruption of a lawful assembly.

The fact that the charges were filed almost exactly a year after the incident (before the statute of limitations deadline) shows that the Orange County district attorney, Tony Rackaukas, didn’t rush to judgment on the matter. He convened a grand jury to explore the incident, including issuing subpoenas to the protestors and hearing their testimony, although the jurors were not asked for a recommendation on whether to bring charges.

In the intervening year, however, it’s clear that Rackauckus was under pressure from activists on both sides.

Let no one make excuses for the obnoxious protestors, whose clear intent was not to present an opposing point of view or discourage attendance, but to prevent Amb. Michael Oren from speaking. Oren walked off the stage twice, but like a true Israeli, stuck to his guns and prevailed when the students were removed. This will make a weak civil liberties case. Your right to free speech ends when you try to take away someone else’s.

“It is true that an individual heckler may have the right to shout in opposition to a speaker, so long as his shouted words are brief and non-recurrent,” Alan Dershowitz wrote in a column in the Huffington Post. “But any fair viewing of the videotape, available on YouTube, proves beyond any doubt that this was a concerted effort to silence Michael Oren and to prevent his audience from hearing his point of view. The university was correctly embarrassed at this attempt at censorship.”

But there are concerns here that transcend civil liberties, such as the scale of punishment. When I was at Brooklyn College — then, as now, a flashpoint for Israel-related protests and counterprotests — people regularly engaged in this kind of behavior. When tuition went up students "took over" one of the buildings and forced the cancellation of classes. When Meir Kahane came to speak he was shouted down just as Oren was. When the campus paper insulted Jews, a Jewish student group took over the offices to demand the editor’s resignation, aiming to prevent the paper from publishing and thus cost it ad revenue.

There were no cops or grand juries. A college campus is something of a microcosm of the real world but also largely considered practice and students who are idealistic, but yet to be tempered by real world experience are often given the chance to mature and learn from mistakes; even when it involves minor lawbreaking, such as disturbing the peace or sit-ins that deny others access to public buildings.

The Irvine case also reminded me of a speech by Rev. Jesse Jackson I attended as a reporter in December, 1995, at the Park Avenue Synagogue. A few minutes into the address a man stood up and started heckling. After he was escorted out another person rose, and another. It was a coordinated effort by the Jewish Action Alliance, a right-wing group that has now largely disbanded, to shut Jackson up because they considered him anti-Semitic. These were not students. They included an attorney, a social worker, and Beth Gilinsky, founder of the Jewish Action Alliance.

The police weren’t called. Yet I’m confident those protestors would welcome the Orange DA’s charges against the Irvine 11 for doing essentially the same thing.

There is no question that a coordinated pro-Palestinian effort is working to counter Zionist programing on college campuses and recruit Israel haters, and we ignore it at our peril. And, since the Irvine case involved a foreign dignitary, consequences are arguably justified.

But one of the dangers of a legal case is creating a public trial with Israel supporters hoping the outcome will cow pro-Palestinian activists into silence and the 11 and their backers arguing that this is another case of a powerful pro-Israel lobby trying to stifle criticism of Israel. Already, a few dozen faculty members have called on the DA to drop the charges. With those stakes, an acquittal will embolden even more protests, perhaps even more strident.

That’s why it might have been best for this to be left as an administrative matter for the University of California. The Muslim Student Association that started the protest has already been suspended for a year with another year of probation after that. Unfortunately, judging from reports of the incident, the students themselves only got a slap on the wrist from the college. Since the incident reflected badly on the university and could affect recruitment and fundraising, it would have been justified taking stronger action against them.

Fortunately, barring a plea deal, the question of whether the Feb. 8, 2010 incident at Irvine was a typically boisterous student protest, or a criminal act of conspiracy to disurb the peace and deny others their right to speech and assembly, will be left to an impartial jury, not to any of the passionate forces on both sides.

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