Shouting Down the Israeli Ambassador: Boneheaded? Perhaps... Illegal? Not So Fast.
Quoting Justice Oliver Wendell Holmes, Dean Chemerinsky argued that "there was no right to falsely shout 'fire' in a crowded theater." Moreover, he rightly pointed out that government, including public universities, have the right to regulate speech on campus, particularly because freedom of speech would be "rendered meaningless if speakers can be shouted down by those who disagree... 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."
A Heckler's Veto?
As well articulated as this argument is, do the comparisons used actually reflect the situation at hand? Is vigorous and organized, yet clearly limited, protest really the equivalent of"shouting fire in a crowded theater"? Did the students ultimately prevent Ambassador Oren from being heard? Is there really no room for"disruption" of any length or style at a talk by an Ambassador of a country embroiled in a contentious decades long conflict?
In fact, the students actions, and the reaction by the audience, university, and police, are far more complicated than they might appear on the surface and challenge the assumption by most people that they crossed a clear boundary of acceptable protest and deserve whatever fate is handed to them by the University and even the District Attorney. Several issues in particular raise troubling questions surrounding how the university police, and administration more broadly, handled the event and its aftermath.
First, there is the question of the level of disturbance caused by the students. Ambassador Oren was scheduled to speak and answer audience questions for 1 1/2 hours. The protests by the students were clearly aimed to disrupt his speech, but it's just as clear that they were not trying to scuttle it. Each outburst seems to have lasted under one minute, after which the student left voluntarily. In total, eleven out of 90 minutes were taken up by the protests. Even with the twenty minute break that Oren took during the protest he was, as Chancellor Drake pointed out in his condemnation of their actions the next day, able to finish his speech. There was also time for audience questions had he chosen to take them.
These facts raise the question of whether, as many university officials and commentators, including Dean Chemerinsky, have argued, the actions of the students constituted a"heckler's veto" and therefore crossed the line between acceptable and prohibited protest. To begin with, the use of this term is questionable, as it has, as a rule, referred not to protesters shouting down a speaker at a gathering but rather to government or other officials canceling or prohibiting a speech or gathering out of fear of the protests it might generate.
Even if we accept the implications of the term, the assertion that the students' actions constituted a veto over Ambassador Oren's right to be speak is debatable. If 40 or some similarly large number of students engaged in the action rather than 11, Ambassador Oren would have been unable to complete his speech and the protest would have thereby crossed the line of acceptable speech. But this was not the case. However uncivil or even obnoxious one might consider the protest, by design (rather than because of the actions of police or university officials to stop them) they did not continue long enough to prevent him ultimately from being heard.
Given the heated nature of Israeli-Palestinian debates on campuses today, one could look at the rough and tumble of the students' protest here and, quoting a basketball analogy often used in the last two minutes of an important game, declare:"No harm, no foul," or at least not a flagrant one.
It is true, as Dean Chemerinsky notes in his Oped, that universities have the right to limit the free speech rights on campus to a greater extent than is normally allowed in the public sphere. But at least at UCI there are no firm guidelines on what those limits are. When I enquired I was referred by a UCI spokesperson to the UCI Dean of Students' Handbook on Campus Policies. But that document offers little guidance to judge whether the protests against Oren's speech crossed the line. Section 30.00 (http://www.dos.uci.edu/conduct/uci_policy.php#30.00), which deals with free speech, does not define any limits to speech beyond the broad statement that 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."
Without a clear ban in place beforehand on the type and style of protest in which they engaged, it is hard to see how they could fairly be subject to severe punishment by the university for their protest, never mind arrest and potential prosecution.
Indeed, this criminalization of dissenting speech is the most troubling part of the whole affair. It is impossible for me to see how university police or the administration can justify arresting these students after they voluntarily left the room and made no efforts to return. Who made this decision? What reading of which law where they using to determine that students who make short protests and voluntarily leave an auditorium can be arrested?
The students clearly constituted no threat to the speaker or the audience--in fact, the video of the event clearly demonstrates that the audience engaged in far more obnoxious behavior than the students, using racial/religious epithets against them and even accosting several of them. Despite the students' pointing this out to police at the time, no audience members were removed from the hall, let alone arrested.
Moreover, previous campus protests, such as against UC Berkeley law professor John Yoo, have resulted in students being removed from the auditorium by police after shouting him down during a talk, but no further disciplinary or legal actions were taken against them. Together these facts raise serious issues of equity in the application of already vague university regulations and laws.
And even with the arrest, it is unfathomable that the District Attorney would use already limited government resources to prosecute the students for their actions. Yet to date there is no indication that they will not face prosecution. But on what basis?
An Undue Limitation on Legitimate Protest?
University officials sent an email to the entire student body in the aftermath of the event which warned students that any such protests would be considered illegal and create"a very serious situation." Specifically, 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 under California Penal Code §403. Other penal codes can apply as well."
I am proud that my colleagues in the UCI administration have fought long and hard to protect academic freedom on campus against concerted efforts to diminish it. Yet while it's not the intention of the university, it seems to me that this email could have a chilling effect on free speech, particularly because there is no attempt to define what"willfully disturbs" an event means. This opens to the door for arresting students for even the slightest disruption of an event.
Imagine how a 19-year old student would react to being told that he can go to prison and face expulsion from the university merely for engaging in vigorous protest against a speaker who supports enforced genital mutilation of women, the execution of homosexuals or other unpopular policies. Or more to the point, who represented a state that engaged in these practices.
If you were that student, what would you do the next time someone was speaking at the university whose views you strongly disagreed with? Would you risk crossing an undefined line and thereby put your future in jeopardy, or would you stay silent? And what does this environment do to the university's role as a place where boundaries, ideas and actions can be explored? Some of the most creative and impactful protests in history have been extremely theatrical and disruptive. Should students be forbidden from exploring these forms of protest?
And it would seem professors are equally at risk. For example, if a pro-Hamas speaker was coming to campus and Jewish students came to me for advice on how to respond to him, I might well--before now--have suggested they do a die in at his talk. Put on paper masks of Israelis killed in suicide bombings and come to the front of the hall, say the name and date they were killed, and fall to the floor. Perhaps even have themselves carried out to emphasize the point.
Until now, I would have assumed that as long as this didn't prohibit him from finishing his talk and was non-violent, this would not only be acceptable, but also highly effective and even pedagogical. It would force those who blithely support the right to resist through terror to confront the faces of the victims the actions they support produce. Yet it would now seem that my advice might well be illegal, and lead my arrest, prosecution and even revocation of my tenure, along with the suspension or expulsion and prosecution of the students who staged the protest.
As important, this potential criminalization of dissenting speech is not just limited to highly contentious protests surrounding Israel. Students have also been arrested and face harsh disciplinary action across UC for engaging in protests on hot button but legitimate issues. Rather than repressing dissent, we should be helping students to find the most creative ways to express it within commonly understood bounds. But making a habit of arresting students for vigorous but non-violent and ultimately limited protest makes this goal that much harder to achieve.
The Missing Ingredient: Power
There is a final issue involved in these protests that Dean Chemerinsky's article did not touch upon, and that is the utter disparity in power between the students, and the views they represent, and Ambassador Oren and the government he represents. There is little doubt that the Law School and Political Science Department, who co-sponsored, rightfully saw his presence as a chance to engage an important actor on issues of concern to the UC community.
However, from the Israeli side Ambassador Oren's appearance at UCI was part of an extremely sophisticated, well funded and self-described"propaganda" campaign--known by the Hebrew term"hasbara." directed by the Israeli government and major American Jewish organizations with the goal of presenting Israel in the most positive light possible on campus.
Oren was speaking at UC Irvine not as an academic presenting research but as an official representative of a government, one of whose jobs is to convince the public at large of the justice of his government's policies. That is one of the most important jobs of an ambassador, but it is based on a very different set of ground rules than that of a scholarly presentation.
In fact, the outrage demonstrated by many (but by no means all) members of the Jewish community at the protests is disingenuous. The World Union of Jewish Students and the Education Department of the Jewish Agency, a quasi-governmental organization with strong ties to most major Jewish organizations, sponsored the publication in 2002 of a 131 page manual for Israel advocacy titled the Hasbara Handbook, which specifically lists as the first of"seven basic propaganda devices" available for use by activists"name calling," and declares that"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."
It would seem that for members of these groups now to call for the expulsion of the so-called"Irvine 11" and threaten to stop donating money to UCI unless harsh measures are taken is a bit like the pot calling the kettle black.
A Malfunctioning Public Sphere
In the United States the normative understanding of the public sphere is that everyone has an equal voice and disparities of power and access are naturally checked at the door, allowing all sides on a debate"equal" footing on which to state their case. But the reality, particularly when it comes to debates around Israel, is far more constricted.
The context of the students' rowdy, and to some"uncivil", protest has to be considered in judging their actions. Ambassador Oren represents a state that has engaged in a 43-year long occupation and settlement enterprise, as as part of this process committed large scale and systematic violations of the most basic human rights of Palestinians, from land expropriations to extra-judicial killings to numerous war crimes, all of which are amply documented by Israeli Jewish human rights organizations as well as by the US State Department, United Nations and other international organizations.
Yet despite this record, Israeli officials routinely receive warm official welcome on college campuses across the United States, something its hard to imagine happening with representatives of countries with similar human rights records. Meanwhile, back in the Occupied Territories, not only Palestinians, but foreign activists and even Israeli Jews are routinely arrested, beaten, tear-gassed and even shot and killed merely for engaging in non-violent protests against the on-going expropriations of Palestinian land, demolition of homes, uprooting of trees and orchards, and other human rights violations. The students at UCI are fully aware of these facts because in the last two years they have gone out of their way to bring Jewish and Israeli speakers to campus who've experienced them first hand.
Put this next to the deference generally shown to Israeli officials, the well-documented unwillingness of the mainstream media to challenge Israeli policies or explanations with any regularity, the political clout of pro-Israel groups, and the powerful Hasbara network on campuses, and their rowdy, uncivil protest suddenly makes more sense.
Indeed, against such a powerful bloc of forces, we can ask how already marginalized Muslim students should be expected to protest against the Ambassador's appearance. We can take a less politicized example and ask how marginalized students should be expected to protest crippling tuition increases even as the quality of their educations diminishes against a powerful President who has declared emergency powers and effectively neutralized the long-cherished notion of"shared governance."
How polite should students really be expected to be in this situation? Is demanding that they be 'civil' and 'respectful' itself an infringement on their free speech rights in a situation where speakers who represent powerful and normally untouchable interests or groups--whether foreign governments or the UC Regents, for that matter--routinely deflect troublesome questions, change the subject or in some cases respond with very narrow and even inaccurate answers that the audience has little chance to challenge.
In short, are there situations when marginalized voices have little recourse accept to push the boundaries of polite debate in order to get their messages heard? And if in doing so they ruffle feathers, upset audience members and perhaps even exercise extremely poor tactical and political judgment in their choice of strategies--as the students in this case have so clearly done, since they both deflected attention away from their cause and played into deeply ingrained stereotypes of irrational and unreasonably angry Muslim men--should the University be punishing them and the state prosecuting them?
My hope is that the members of the UCI 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 still gaping chasm that separates Muslim and Jewish students on campus and the communities they represent. Turning UCI into a First Amendment battle ground will likely not achieve these ends and instead will undermine the vigorous and sometimes rowdy given and take that is essentially to the preservation of free speech and academic freedom in the University.
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Martin Gugino - 6/30/2010
you say [Apparently Mr. Le Vine has abandoned the concept of a university]
Of course what you say is not so apparent to me. A university is a place for the exchange of ideas. Propaganda is not necessarily wrong, but I feel if the students had been silent, the rocks themselves would have cried out.
Martin Gugino - 6/30/2010
The protest was a tepid as could possibly be expected. Clearly the University understood, as would anyone, that some protest was unavoidable, given the one-sided nature of the presentation, and the perception of brutality of the Israeli policy, after Rachael Corrie and the expansion of settlements, including a gratuitous insult to Joe Biden.
The Irvine police were there in force. If the audience reacted in support of the students, that is not the fault of the students, but of the event planners. Were those whose hearts were broken for Gaza expected to be silent?
Chemerinsky says that they could have picketed outside. He says that afterwards.
Martin Gugino - 6/30/2010
Mr Oren did not "exchange ideas". He did not take questions at the end. The University, instead of structuring this presentation as a debate, as Chapman University wisely did with John Yoo's presentation a few months earlier, instead invited the city of Irvine Police to attend. This was the crucial problem, I feel. An Ambassador of course is not going to present an objective view, but rather the views of his government, a government that has as its policy the starvation of Gaza.
Robert Kessler - 5/23/2010
That is the point. There can be no speech codes without a degradation of free speech. That is why civilized discourse is essential in a university environment. You are defending an attack on free speech as an expression of free speech.
Is this not obvious?
Robert Kessler - 5/23/2010
The point of your piece, Mr. Levine, was to legitimize the behavior of the protesters. It is irrelevant whether their behavior was legal or illegal, it was anti-intellectual. It was anti-education. It was intimidation and the suppression of free speech.
That Mr. Oren finished his talk does not diminish the bullying of the protests.
That there are no clear rules on interrupting a speaker shows the liberalism of the university and their expectation that civil boundaries will be respected. That does not take away their right to decide when someone has crossed the line.
That audience members cursed at the protesters is completely appropriate as they were defending the academic environment and their right to listen to the speaker.
That previous protesters were not arrested is irrelevant.
As to Israeli "politicide", I assume you are abandoning the hackneyed lie of "genocide" and have created a new shibboleth to distract from the Palestinian leadership's refusal to dissolve their murderous charters, or take the opportunity of a Palestinian Gaza and a Palestinian West Bank to begin the hard work of nation building.
The word "politicide", suggests that you condemn Israel for targeting the terrorist leaders who make war on Israel, as if these killers would be the political leaders of a peaceful Palestine if it wasn't for the evil Israelis.
You are creating a political fantasy that serves an ideological lie.
Robert Kessler - 5/23/2010
Apparently Mr. Le Vine has abandoned the concept of a university as a place of learning, and has adopted instead the paradigm of the university as a training ground for revolution. Condoning the behavior of students who interrupt speakers by shouting them down every ten minutes produces an environment of intimidation and thought control. These protests were not questions that the speaker was able to respond to, they were statements yelled from the audience specifically to interrupt the communication from the podium. Only is Mr. Le Vine's sacred canon would this behavior be enshrined as intellectual freedom, instead of the intellectual bullying that it is.
The attempt to further legitimize this behavior by labeling Muslim students "marginalized" and the state of Israel an "illegal occupier" is intellectual fraud, plain and simple. Muslim students at UC Irvine have a famously robust campus presence. Mr. Le Vine knows this. The State of Israel is only an "occupier" in the minds of those who have singled out the Jewish State for condemnation. There are refugees throughout the world. Hispanics in America call the U.S. government an "occupier". The term has no meaning except as a bludgeon.
Mr. Le Vine seems rather ignorant of present conditions in the Middle East and his own campus for a person steeped in the training of an historian.
Mark A. LeVine (UC Irvine History Professor) - 2/24/2010
i've only seen one comment like that about muslims and jews living in harmony in the past. it's of course romanticized and not that accurate. jews and christians certainly, as a rule, lived better in muslims lands that muslims and jews did in christian lands although here generalizations are never wise. but it was almost always as a tolerated, second class minority, except for certain elites who rose above their status.
but again, you're missing the point. there were no specific rules, previous protests of similar types were not prosecuted or punished and for the other reasons i stated i do not see how this would be fair in this case. i would be very happy for the university to work out a more explicit system for acceptable limits on protests in this situation, but when the u. michigan did that their free speech code was struck down as unconstitutional. so it's not easy.
Zot Zot - 2/24/2010
This type of behavior should not be tolerated during a lecture in an auditorium. As much as you try to excuse it due to a power difference or propoganda book Israel wrote 8 year, there is no justification.
They could have protested outside or waited to the question and answer period and posed challenging questions. They prevented those who behaved civilly the opportunity to ask question because that portion of the lecture was cancelled due to the repeated interruptions.
Once the administrators warned of the possible consequences, those who yelled and screamed had been warned and should be held responsible. They are adults. They understood what they were doing. As far as I know they show remorse. I have read a couple of them compare themselves to Civil Rights heroes. What a joke.
You place a very low standard on expected behavior for students. Great, they didn’t threaten to punch out the speaker and didn't beat anyone else up. They only violated fundamental core values that people are free to communicate with each other.
It doesn’t matter if other schools do not want to enforce rules that allow for civil behavior and a civil discusion where ideas can be exchanged. UC Irvine should.
If the students acknowledged they did something wrong, I may be willing to give them a break this time and put them under some sort of probation. But if they show no remorse, they should at least be suspended.
And I'd like to see you comment on the LA Times comments section to your article where I see an increasing number of people who try romantize how things were so peachy for Jews and everyone loved each other throughout history under Muslim control until Israel was established.
Mark A. LeVine (UC Irvine History Professor) - 2/23/2010
really, you have no business participating in this forum with this kind of nonsense. just for the record, i am not at all self-hating. people with your arrogance and willingness to resort to ad hominem attacks to make a point, i'm not too fond of however.
and just to reiterate, since you seem not to have read the piece, the point is not whether they were civil, ethical, nice, smart, racist, anti-Jewish, strategically well thought out, etc. it's whether what they did was illegal and merits prosecution and disciplinary action.
Since 1) previous rowdy protests against speakers have not led to arrests or discipline by the university, 2) those who cursed at and even accosted the students were neither removed nor arrested, and 3) the existing rules are quite vague on this issue, and 4) Oren finished his talk, I do not see as a matter of fairness how they can be prosecuted or severely disciplined.
finally, i wonder whether, since you find--as do i--the support for iranian nuclear weapons (and potentially their use against israel), reprehensible, you also condemn the actual israeli politicide of the palestinian people, which is so well documented, most notably by--self-hating, i suppose--israeli jewish human rights organization? a little balance would be nice here...
Wendy DeMauro - 2/23/2010
Mr. Levine, excuse me, "LeVine" is misrepresenting the behavior of these arrogant, classless bullies, and should have his stopwatch fixed. I attended this presentation & witnessed their behavior during the 11 disruptions before the speaker took a break. Being my tax dollars are subsidizing their tuition, these students should be thrown-out of the University and replaced with students whom respect Free Speech and the Civil Rights movement; especially since these so-called protestors applauded Mr. Oren's statement regarding the Iranian nuclear threat to the region. In my opinion, if all the "Jewish" UCI professors are as self-hating and apologetic as Mr. Levine is, then contributions to UCI should cease.
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