Irvine 11 and the Suppression of Speech: Explanation of the Charges and the Legal Stakes

On February 8th, 2010 the Israeli Ambassador to the United States, Michael Oren was invited by different departments in the University of California, Irvine to speak on campus. Students from UCI and other local universities decided to protest the presence of the Ambassador at the university based on the idea that state actors, of states who continue to commit crimes under international law should not be allowed to speak.  They decided to stop him through a civil disobedience with 11 people shouting down the Ambassador.  When asked to leave, they were willingly escorted by campus police.  The UCI administration waged an unprecedented campaign against these students.  Following the disciplinary action handed down by UCI (check out the time-line of events here), the District Attorney of Orange County has filed charges against the 11 students.

What follows below is a description of and a brief legal analysis of the charges being brought up by the Orange County DA.  These are the thoughts of  a Southern California based lawyer from the community.  I believe this is one of the clearest description of the charges, which is why we are reposting it here.  I hope that you take further action after reading this short piece and sign the petition supporting the students, and further actions as outlined by the website of the group advocating on behalf of the students.

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Based off the DA’s press release, it appears that the Irvine 11 will have two charges brought against them:

1) Violation of California Penal Code 403: “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.” 

2) Conspiracy Charge – this is one of the most bogus things in criminal law.  It’s a way for DA’s to tack on extra charges to a crime by alleging conspiracy, which just basically means that two or more people planned to commit a crime together.  Thus, he’s going to allege that this was a concerted effort by the MSU-UCI to plan to break up the rally, and hence it’s a CONSPIRACY.

Obviously the big issue with CCP 403 is that it can be read to be in direct competition with the Constitutional right to Free Speech under the 1st Amendment.  The constitution is the overriding law of the land, so if CCP 403 and the 1st amendment are in direct conflict, the 1st amendment wins. The big case interpreting the intersection of CCP 403 and the 1st Amendment is In Re Kay 1 Cal. 3d 930 (1970).  Very similar facts – big rally on July 4th, some protesters shout the speaker down.  In that case, the Court tried to really narrow the scope of CCP 403 so that it wouldn’t be in conflict with the 1st amendment. Some important quotes:

  • To effectuate section 403 within constitutional limits we interpret it to require the following showing to establish its transgression: that the defendant substantially impaired the conduct of the meeting by intentionally committing acts in violation of 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.
  • In instances in which the appropriate standard of conduct lies in doubt, a warning and a request that defendants curtail their conduct, either by officials or law enforcement agents, should precede arrest or citation.  If section 403 were not so interpreted, individuals would be forced to speculate as to what conduct might entail criminal sanctions and would “necessarily . . . ‘steer far wider of the unlawful zone.'”

However, there’s another constitutional issue on which the Court in Kay punted, and that’s whether CCP 403 should be thrown out altogether because it’s so vague and is written so broadly that it can lend itself to rampant restrictions on free speech.  The Court instead said:  “In view of the foregoing discussion of the scope of section 403we need not decide whether, without such definition, the statute would be void for vagueness.”

There is precedent for statutes being deemed unconstitutional for vagueness, on the grounds that they violate the due process of law. One of the most cited U.S. Supreme Court cases on this issue is Conally v. General Construction Co., 269 U.S. 385 (1926) which held that “the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

CCP 403 is arguably so vague, even after the California court’s attempt in In Re Kay to narrow and define the broad statutory standards, that a common person can’t reasonably predict exactly where the line is now drawn between permitted and criminal instances of “audience activities, such as heckling, interrupting, harsh questioning, and booing.”  This is made even more confusing given that (a) such audience activities can and do have a beneficial consequence, a fact acknowledged by the court in In Re Kay which acknowledged that “the very possibility of adverse audience reaction may aid in the correction of evils which would otherwise escape opposition,” and (b) such opposition speech is as American as apple pie – as also acknowledged by the court in In Re Kay, “the heckling and harassment of public officials and other speakers while making public speeches is as old as American and British politics.”

For this reason, I can see this case going to the US Supreme Court to decide whether CCP 403 on its face, is unconstitutional.  However, I don’t think such a decision would happen for many many years and would require: (1) a conviction in CA state court, (2) an appeal to the Federal Appellate Court alleging CCP violates the federal Constitution, and then (3) a subsequent appeal to the US Supreme Court if the Federal Court’s decision is appealed.  The Supreme Court can jump the line and take the case directly before the Fed. Court rules – it’s called a “petition for a writ of certiorari” (under Rule 11 of the Supreme Court rules), but that’s pretty rare and is granted “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

 

At a time when the voices of dissent and opposition are hailed as triumphs of democracy in Tunisia, Egypt and Bahrain, it’s shocking to see an attempt to criminalize such dissent right here in Orange County.

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