Karen Lugo

All Americans owe the Orange County (CA) District Attorney a huge debt of gratitude. Despite demands to withdraw the prosecution of the “UCI-11” Muslim students who shouted down Ambassador Michael Oren, the DA and his team tried the case and won a hugely important constitutional point: It is a crime to exploit expressive rights to squelch another’s speech rights.

The UCI Muslim Student Union protestors were accused of a conspiracy to serially interrupt the ambassador’s lecture based upon e-mails and meetings to organize the “staging [of] a University of Chicago Style disruption of the Ambassador’s speech.” The guilty verdict announced days ago included punishments of three years of informal probation, 56 hours of community service, and $270 in fines.

Although the Muslim students demanded absolute protection of their riotous behavior, they were found guilty of crossing the line between lawful exercise of free speech and speech used to silence an opposing point of view. They left the zone of protection that liberally covers speech and debate on matters of public concern when they conspired to deny the speaker’s equal right; at the same time denying the rights of audience members who lawfully assembled to hear the speaker.

Fortunately, judges and juries have covered this ground before and recognize the coercive effect of the “heckler’s veto.” By pattern, a heckler is known as one who "harasses and tries to disconcert with questions, challenges, or gibes." By performance, the heckler is recognized as one who is unable to defend his argument in the court of public opinion by legitimate use of facts, logic, and reason. University of California Irvine’s law dean warned, “People can always silence a speaker by heckler’s veto, and Babel results.”

Notwithstanding the clear legal and obvious cultural implications, the Orange County Register, considered a libertarian-leaning enterprise, offered editorial comment condemning the prosecution and the verdict. Editors called the prosecution “selective” and even drew the absurd comparison between this political protest and the disruption of a “chemistry or biophysics lecture.”

This false analogy intentionally misses the point. As the Supreme Court reasoned this last term when evaluating the rights of the Westboro Baptist Church demonstrators, although they shouted grievously hurtful things to families of fallen military, speech on “public issues” in the United States is “entitled to special protection.” The UCI 11 stomped on speech in this important domain occupying “the highest rung of the hierarchy of First Amendment values.” The analysis would be different, and the remedy likely an administrative one, if the hecklers were blocking a routine chemistry lecture.

In addition to constitutional civil rights violations, a state statute also provided the student protestors notice as to the criminal nature of their actions: “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character ... is guilty of a misdemeanor.”

Furthermore, California courts have developed tests for determining when disturbances are likely punishable. The legal analysis as expressed in In re Kay entails whether the subject “substantially impaired the conduct of the meeting by intentionally committing acts” and “violated implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.” Not only were the students informed of the UCI campus meeting policies but multiple warnings were issued that evening before the students were arrested for their disruptive conduct.

Islamist activists have refined the scheme of pressing grievances to an advanced art form, working to carve out legal concessions that give them a kind of super-minority status. Again, this plan to silence disfavored speech – like the silencing of cartoonist Molly Norris and the prior restraint on Terry Jones’ Dearborn speech -- with the aggressive defense of the thuggish behavior, reveals a disturbing agenda.

If, by this tragic perversion of expressive rights the UCI 11 had succeeded, verbal terrorism would have prevailed. Our system of ordered liberty recognizes individual rights within a social construct that also equally respects the rights of others. Kudos to the Orange County District Attorney.


Karen Lugo

Karen Lugo is the Founder of the Libertas-West Project and a co-director of the Center for Constitutional Jurisprudence.