Below is a brief analysis of the recent Irvine 11 jury verdict and thoughts on moving forward by a Southern California based lawyer from the community. It is a unique angle on the case and provides relevant suggestions as how to orient upcoming campaigns. I hope you take further action upon reading this piece. Please check out the website of the Irvine 11 for further details on their case and things you can do.
I recently finished reading this piece from Sajid Khan, a public defender in San Jose, who gave his take on the Irvine 11 jury verdict.
I thought the most important sentence of Sajid’s article was this:
However, as much as people are condemning the jury verdict as unjust and a blow to free speech rights, it merely was the jury doing their job: applying the law, as stated, to the facts of the case.
I agree with Sajid. Despite a great effort by the legal team for the Irvine 11, I had real concerns with the potential outcome of the jury trial. As I saw it, the jury trial was where the defendants had the weakest shot of winning, specifically because the judge and jury were hamstrung by California Penal Code Section 403 and how it’s been interpreted in California courts.
The role of the jury is to be a finder of fact. A jury is not supposed to determine whether a law is just or unjust, or whether it’s “fair” for someone to be punished. All it is supposed to do is assess whether specific facts occurred as spelled out in the jury instructions given to the jury before they deliberate. (Note: As anyone who has sat on a jury can attest, jurors very often ignore this fact-finding role and instead decide a case based on any number of reasons, which is why jury trials are such a crapshoot).
A common example demonstrating a jury’s proper role is as follows: a poor, starving, about-to-die man steals and eats a single apple. The law of this hypothetical land is that stealing apples is a crime without exception. If his case goes to jury, the jury is not supposed to assess whether it’s “fair” to put the man in jail. The jury’s role is simply to assess whether, based on the evidence, the man actually took an apple without paying and kept/ate it. Issues such as whether the man was poor, whether he’d ever committed a crime before, whether he was a Nobel Peace Prize winner, all are irrelevant when it comes to conviction because the law of this hypothetical land is that “stealing applies is a crime without exception” (although these other facts can play a role in sentencing – that is determining the actual punishment for the conviction).
Similarly here, as I understand it, the very limited issue (aside from the conspiracy charge) at trial was whether the Irvine 11’s actions actually broke up and impeded the ability of Ambassador Oren to give his speech. Limiting the issue to this narrow scope means that many of the other facts and issues become irrelevant – including whether the students were “speaking truth to power” (a quote from the defense’s closing arguments), whether the students were exercising their free speech rights, whether the District Attorney engaged in egregious selective enforcement, why CCP 403 was not invoked for other public events that were shut down by protests in the past (including one that many of us have personal recollection of in which UCLA students shut down the entire 2000 Los Angeles mayoral debates scheduled to be held on campus – an act that was much more egregious than what these Irvine 11 did). All these issues may be important for us, but these issues are irrelevant for the jury’s limited role.
The jury didn’t have much of a choice (again, assuming they actually followed the judge’s orders about what they were to rule upon). Although there was solid evidence that the students left the program early and allowed the program to finish, and that Oren left to catch a Lakers game a full 30 minutes before the program was set to end, the facts could easily be interpreted to demonstrate that the protesters tried and actually did severely disrupt the event and Oren’s speech from continuing.
The real issue here is goes beyond trial, and is for appeals. On appeals, a court will need to assess whether the Irvine 11’s actions – voicing your opinion loudly and strongly – should be a crime. This issue needs to be heard on appeals, because as long as CCP 403 is on the books protesters will be confused about the scope of their 1st Amendment Rights. There is an urgent need for a federal court to decide whether California’s Section 403 is such an overly vague and ambiguous law (read the statute here, it’s ridiculously broad) that it presents too much room to conflict with the 1st Amendment’s free speech rights. A law is unconstitutional as in conflict with the First Amendment if it does not leave open ample alternative channels for communication of the information. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976). Further, a law is unconstitutionally vague if it would be impossible for a reasonable person to determine what speech or conduct is or is not permissible and would force a reasonable person to guess at its meaning. Connally v. General Construction Co., 269 U.S. 385 (1926).
This issue was actually previously touched upon back in 1970, but in my opinion inadequately, by the California Supreme Court in a case called “In Re Kay” (1 Cal. 3d 930 (1970)). I drafted a very rough analysis of this case a few months back.
In Re Kay dealt with very similar facts – big political rally on July 4th, some protesters shout the speaker down, they got convicted under Section 403. In this case, the Court acknowledged that CCP 403 as written, was overly broad. The Court acknowledged that “a function of free speech under our system of government is to invite disputes” and that an overboard restriction on a protester’s rights to voice their opinion could be unconstitutional.
However, rather than throw out CCP 403 altogether, the Court tried to narrow the scope of CCP 403 so that it wouldn’t be in direct conflict with the 1st Amendment. The court did this by adding new standards of guilt that weren’t previously spelled out in Section 403, such as requiring that that the defendants be publicly warned that they could face jail time, and requiring a showing that the defendants “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.”
Applying these narrower standards, the Court ended up dismissing the trial verdict on appeal. However, there’s a bigger issue on which the Court punted – whether CCP 403, even after the additional definition provided by the Court in In Re Kay, should be thrown out altogether because it is still so vague and written so broadly that it lends itself to rampant and arbitrary restrictions on free speech. The Court instead said: “In view of the foregoing discussion of the scope of section 403, we need not decide whether, without such definition, the statute would be void for vagueness.”
As the Irvine 11 case demonstrates, there is still great confusion over the scope of CCP 403. Why was it enforced against the Irvine 11 but not in the many other protest incidents that occur in California each year? How do you define “substantial impairment of the conduct of a meeting” in this context given that the protesters actually did leave before the meeting was over? What if the “explicit rules for governance of the meeting” are so strict that alternative views cannot be adequately presented?
These issues are not just hypothetical abstract issues for scholars to debate, the confusion over CCP 403 has had a real impact on chilling free speech. Already I’ve heard stories that, because of this case, Oren and other controversial speakers have given speeches elsewhere in which the protesters didn’t speak up, waited for the question and answer session to commence, and watched as the speaker quickly left after his speech without giving dissenters an opportunity to ask their questions. This is the kind of chilling effect on free speech that an appellate court must remedy, and fast.