Erwin Chemerinsky's Take on the UC-Irvine Incident

(Hat tip to the Orange County Independent Task Force on Anti-Semitism)

This is an editorial appearing in today's LA Times by UC-Irvine Law School Dean Erwin Chemerinsky.

Opinion
UC Irvine’s free speech debate

By Erwin Chemerinsky
LA Times Opinion

February 18, 2010

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. Israeli Ambassador to the United States Michael Oren was invited by several sponsors, including the law school (of which I am dean) and the political science department (of which I am a member) to speak at the university on Feb. 8.

Prior to this event, campus officials heard rumors that some members of the Muslim Student Union planned to disrupt the ambassador’s speech by having a series of students yell so that he could not be heard. One after another they would rise and shout, so that as each was escorted away, another would be there to make sure that the ambassador did not get to speak. When asked, the officials of the Muslim Student Union denied any plans to do this.

Unfortunately, this is exactly what occurred. After the first disruptions, the audience was admonished that such behavior was not acceptable within the university and that those who engaged in such conduct would be arrested and face student disciplinary proceedings. Despite these warnings, 11 individuals rose and shouted so that the ambassador could not be heard. At one point he left the stage, but thankfully was persuaded to return and deliver his address.

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.

The remedy for those who disagreed with the ambassador was to engage in speech of their own, but in a way that was not disruptive. They could have handed out leaflets, stood with picket signs, spoken during the question-and-answer session, held a demonstration elsewhere on campus or invited their own speakers.

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.

As a matter of 1st Amendment law, this is an easy case. It would be so no matter the identity or views of the speaker or of the demonstrators. Perhaps some good can come from this ugly incident if the university uses it as an occasion to help teach its students about the meaning of free speech and civil discourse.

Erwin Chemerinsky is dean of the UC Irvine School of Law.


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Fousesquawk reaction:


Ho hum.