An American Muslim Journal

Latest U.S. Supreme Court ruling on First Amendment may help UC Irvine students

Dear DA Tony Rackauckas:

It's time to drop the ill-conceived criminal charges against the student protesters from the University of California-Irvine.  Your prosecution is a waste of taxpayers' money for a variety of reasons, not the least of which is the unconstitutionality of it.

Did you read the latest U.S. Supreme Court case on the First Amendment?  It's titled Snyder v. Phelps and the majority of the Supreme Court comes down squarely in support of First Amendment rights.  You should read it.  You can find it here.

The facts in Snyder v. Phelps are different from those of the student protesters at UC Irvine, but the analysis of First Amendment speech and when it is protected helps better understand exactly why your prosecution, even if it succeeds at the trial court, will ultimately falter and fail (much to the chagrin of Orange County taxpayers who will eventually foot the bill for the constitutional challenges).

The words spoken by the student protesters on the campus of UC-Irvine were clearly the most highly protected speech.  the Irvine 11's speech dealt with public policy matters of the United States vis-a-vis international relations with Israel and the Palestinians.  The speech was at UC-Irvine and that's a public university.  Here's what the Supremes had to say about such speech in the context of the Westboro Church (but equally applicable here):

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989).

I'm not sure it can be anymore clear.  Speech of a public concern in a public space gets "special protection" and cannot be restricted because it upset others at the event.

You should not be allowed to take this case to a jury.  Unless things are really slow in Orange County, I'm going to assume that some pressure was brought to bear upon your office to bring charges against these folks.  I'm very concerned that any jury you impanel for this trial might find it difficult to disassociate their political views which may differ from those of the students with the facts and law to be applied. Again, the Snyder v. Phelps opinion addresses this issue:

In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270).

In other words, the students will not only not get a fair trial, the entire system becomes complicit in an unlawful suppression of protected speech.  That's not good.  And yet again, the Snyder v. Phelps opinion:

Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted).

The best course of action is to dismiss the charges with prejudice.

Sincerely,

A Concerned Citizen who isn't an Con Law Expert but Does Read

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Click here for another blog post on this topic (pre-Snyder v. Phelps)

 

 

Muslims and Free Speech - Attorney Marc Stern of New York City's letter to the editor

Whatever the wisdom of filing criminal charges against students who thwarted a speech by Michael B. Oren, the Israeli ambassador to the United States, at the University of California, Irvine, it is disheartening that the students’ supporters continue to maintain, even after the university disciplined them, that their actions constituted an exercise of free speech.

via www.nytimes.com

This is from a letter to the NTY editor.  The letter writer is talking about the case of some students who staged a peaceful protest at some state university in California.  The speaker was an ambassador from Israel (Ambassador Oren, I think).

The author of this letter is an attorney.  I cannot disagree more with what my fellow attorney has to say here.

Just because the school chose to discipline these students does not change the fact that what they did was an exercise in free speech.  And just because the prosecutor in that county had the poor judgment to bring charges against these students doesn't mean the students committed any crimes.

I hope these kids get a good lawyer and fight this case.  I think they can win it.

I don't have access to Westlaw or Lexis but a quick search on google suggests that this is the relevant penal code section under which  the Orange County prosecutor is bring the criminal charges against the students:

Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in Section 302 of the Penal Code or Section 18340 of the Elections Code, is guilty of a misdemeanor.

Did the actions of the students disturb or break up the meeting?  I don't think so.

From what I've heard about the protest undertaken by the students - each student stood up and made some statements of protest during Mr. Oren's speech and then quietly and peacefully walked to the center aisle where campus security escorted them out of the room - it doesn't add up to "disturb" or "break up".

I'm not up on the latest in First Amendment law but I don't think their actions can sustain a factual finding of "disturbing" or "break up" as set forth in the statute.  If this isn't the statute then I welcome someone in the blogosphere sharing with me the correct penal code section.  Let's talk about it!

I'm not sure if Cohen vs. California is still good law but if it is, then I think it helps the case of the students' case.

I think this whole sordid affair is a learning opportunity: plan your civic actions well and be prepared to be bullied by not-so-enlightened prosecutors by having defense counsel on hand.

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As an aside, have you seen the kind of nasty anti-Muslim hatred this case has whipped up?  It's ugly! Right here in Illinois - at the University of Illinois' Daily Illini - there are some seriously twisted people!