The Physical Sciences plaza and some of the main buildings at UCI.
The Irvine 11 controversy was a legal saga that followed a protest staged by members of the University of California, Irvine, Muslim Student Union to disrupt and prevent a speech by Israel's ambassador Michael Oren at University of California, Irvine (UCI) in 2010. The students, and the students' union involved, the Muslim Student Union, were first disciplined by UCI for having disrupted the ambassador's address and were later also prosecuted and convicted of misdemeanor charges. The controversy led to a debate on whether the students' protest was First Amendment-protected free speech and whether filing criminal charges against them was fair after UCI had already disciplined them.[1][2] Critics argued that the students were victims of selective prosecution and that they were targeted by Orange County District Attorney Tony Rackauckas because they were Muslims and supported the Palestinians.[3]
Planning
Destruction in Gaza was an impetus for the protest according to Osama Shabaik.
Months after the 2008-2009 Gaza war, UCI student Osama Shabaik visited Gaza to deliver medical aid.[4][5] What Shabaik saw compelled him to "speak out" against Israel's destruction of Gaza.[4][6] Shabaik and a group of peers consequently decided to stage a protest during an upcoming speech by Oren, to be held on February 8, 2010 at UCI.[7] They were eleven students in total; three from UC Riverside and eight from UCI.[8]
In interviews with Jonathan Alexander and Susan C. Jarratt, the MSU students described the process they went through as they discussed how to best protest Oren's visit. They found a video on YouTube showing audience members standing and interrupting former Israeli Prime Minister Ehud Olmert's speech at the University of Chicago some thirty times.[9] They decided to imitate that tactic but without engaging in dialogue which they felt would be meaningless; as audience members they would be limited to asking Oren questions that he would easily divert.[10] The intent was for the protest to be rude - one student put it: "You have to be rude sometimes, especially if you're dealing with systems of injustice."[11]
The protest
Michael Oren had his speech disrupted by protestors.
About 500 to 700 people had gathered in a packed auditorium to hear Oren.[12] As he began speaking, 30 minutes late,[13] Shabaik and his friends stood up one by one and shouted a statement that they read from an index card.[14][15] Shabaik yelled "Michael Oren, propagating murder is not free speech!" followed by his friends who shouted "Michael Oren you are a war criminal!", "It's a shame this University has sponsored a mass murderer like yourself!",[16] and "You, sir, are an accomplice to genocide!"[17] Each statement was met with cheers from their supporters.[18]
According to a video of the event, students continuously disputed the event, and after many interruptions and attempts by the UC faculty, the entire MSU staged a walkout, yelling and screaming at the audience. [19]
According to a student protester who was forcibly removed from the event, each student yelled a statement, walked to a side of the room and was handcuffed and, without further incident, detained in a nearby room by campus police until after Oren had finished his speech.[20]
Video of the event does not show students being handcuffed in the auditorium.
Threats by Oren's supporters were directed at them, according to the students.[21] As police escorted the last student out, the students' supporters walked out, cheering and chanting as they were met by jeering from others in the audience.[22]
The moderator of the event, Mark Petracca, said he had never experienced this kind of behavior in more than twenty years of teaching and that the protestors were embarrassing. At one point he yelled "Shame on you".[23] Oren left the stage after the fourth disruption and UCI Chancellor Michael Drake intervened and lambasted the students for their disruptive behavior.[24] Oren was persuaded to return to the stage 15 minutes later and, though he was disrupted six more times, finished his speech.[25][26] He did, however, cancel the planned 30-minute question and answer session.[27]
Earlier in the day, the MSU had issued a press release both strongly condemning Oren's invitation to speech at campus and labeling him a war criminal:[28]
The members of the Muslim Student Union at the University of California, Irvine, condemn and strongly oppose the presence of Michael Oren on our campus today. We resent that the Law School and the Political Science Department have agreed to cosponsor a public figure who represents a state that continues to commit human rights violations, thereby breaking international law and law of Israeli accord. ... As people of conscience, we oppose Michael Oren’s invitation to our campus. Propagating murder is not a responsible expression of free speech. Oren and his partners should only be granted a speakers platform in the International Criminal Court and should not be honored on our campus.
Shortly after the protest, the students were charged with section 403 of the UCIPD's penal code - disrupting a public event on university property - and UCI initiated a disciplinary process against the students from their university.[29] A Facebook group with over 3,000 members was setup which called for all charges against them to be dropped.[21] Jewish groups called for UCI to crack down on the protestors.[21]
Erwin Chemerinsky, dean of the UCI School of Law, asserted that their protest was a form of civil disobedience, not First Amendment-protected free speech and argued that they should be punished by the university, but not so severely as to ruin their educational careers.[30][31]
An MSU spokesperson said that the union wasn't officially involved in the protest, and that the students were "acting on their individual accord",[21] but leaked emails later showed that the union had helped organize the protest.[32]
Suspension by the university
In spring 2010, UCI recommended suspending the MSU who it stated was guilty of disorderly conduct, obstructing university activities, and providing false information about its role in organizing the protest.[33] Members of the union would also have to collectively complete 50 hours of university-approved community service.[34] It was the first time in recent memory that a student group was suspended for protesting.[35]
Chemerinsky supported UCI's suspension of the MSU,[36] and local Jewish groups applauded it as a victory against hate speech.[37] As did Israeli Consul General Jacob Dayan, who accused the MSU of spreading hate and suppressing free speech.[35]
In September 2010, after the MSU appealed the suspension, UCI reduced the suspension to one quarter instead of one year, but the community service was increased from 50 to 100 hours and the probation period from one year to two.[40][41]
Muslim students described experiencing a more hostile environment at UCI after the suspension. One MSU leader stated that members had endured personal attacks and had received hate mail.[41] Another stated that people were afraid of associating with the MSU for fear of being targeted in the same way that the protestors were.[42] Jennifer Medina in The New York Times commented that Israeli officials have had their speeches on U.S. campuses disrupted before, but that it didn't prompt disciplinary actions.[43]
Criminal charges
Erwin Chemerinsky supported disciplining the students but thought the criminal charges were unwarranted.
In February 2011, the Orange County District Attorney Tony Rackauckas filed criminal misdemeanor charges against the Irvine 11, accusing them of having disturbed a lawful meeting.[44] Facing fierce criticism, Rackauckas defended the decision by claiming that the students had attempted to stop Oren's speech and that not prosecuting them would be "a failure to uphold the Constitution."[45] A spokesperson for his office compared the students' protest with Ku Klux Klan attempting to silence a speech by Martin Luther King.[46]
A large number of people and organizations, including the American Civil Liberties Union,[49] and Chemerinsky, who had supported UCI's decision to punish the MSU,[50] thought that the decision to file charges was wrongheaded. 50 people staged a protest outside Rackauckas' office.[44]
Cecilie Surasky of the anti-Zionist Jewish Voice for Peace (JVP) called the prosecution "shocking" and argued that a double standard was at play because when activists from her group disrupted a speech by Benjamin Netanyahu in November 2010 they were hailed as heroes, whereas the Irvine 11 could face prison time.[51] JVP organized a petition, collecting over 5,000 signatures, who stated that they also should be charged because they too had interrupted a speaker or an event to make a political point.[52] Rachel Roberts, who had participated in the protest against Netanyahu, wrote in an editorial that the only difference between her group and Irvine 11 was that the former was Jewish and the latter Muslim. According to her, the prosecution demonstrated that Jews had more leeway than Muslims when speaking about the Middle East in American society.[53]
The same month, 100 UCI faculty members, including five deans,[54] wrote an open letter to Rackauckas, expressing their distress over his decision to file charges and urging him to drop them. They argued that the students were wrong to attempt to prevent a speaker from being heard and that the MSU acted inappropriately but that they had already been sufficiently punished. Criminal prosecution and sanctions, they argued, would be detrimental to their campus and also set a dangerous precedent for the use of criminal law against non-violent protests.[55][56] Another open letter to Rackauckas, penned in March by 30 Jewish studies faculty members from seven UC campuses, also called for him to drop the charges. They wrote that they believed that the Irvine 11's peaceful protest should not confer criminal liability.[57]
The trial
The trial was held in September 2011. The defense argued that the students had exercised their freedom of speech, that Oren's speech had only briefly been delayed, and that they were targeted because they were Muslims.[58] The longest interruption lasted eight seconds and the total time taken up by all eleven statements were only roughly one minute.[59] The Center for Constitutional Rights in an amicus brief filed on behalf of the defendants cited numerous examples of "persistent, loud, and repeated" disruptions at UC speaking events that did not lead to prosecution. Among them, a protest in November 2001 in which the student group College Republicans shouted down a Muslim speaker, a lecture by Norman Finkelstein in February 2008 that was repeatedly interrupted by people shouting insults, and a 2009 panel with Max Blumenthal that was disrupted for over 20 minutes by protestors blocking the stage and yelling insults.[60]
After two days of deliberation, the 12-person jury[61] convicted ten of the students of one misdemeanor count of conspiring to disrupt Oren's speech and one for disrupting it. Each of them was sentenced to 56 hours of community service, three years of probation and fined.[62] The eleventh student had previously accepted a plea bargain and had his charges dropped in exchange for 40 hours of community service.[63]
Rackauckas, pleased with the verdict, referred to Irvine 11's protest as "organized thuggery" and cautioned against the "dire consequences" of not standing firm against such behavior.[64] Dershowitz wrote that the protest was "censorial" and that the conviction was "a good day for the First Amendment".[65]
Shakeel Syed, executive director of the Islamic Shura Council of Southern California, called the verdict "absolutely unbelievable" and said that it indicated that Muslims were treated as "permanent foreigners".[62] Abdul Wahid, chairman of the UK-Executive Committee of Hizb ut-Tahrir in Britain, wrote that the verdict proved that the U.S. has a two-tier system of justice for Muslims and non-Muslims.[66] Chemerinsky deemed the convictions harsh and said that Rackauckas had made a "terrible mistake" in prosecuting them.[67] The Los Angeles Times called it "a case that never should have been" and the criminal charges disproportional.[68] The Orange County Register wrote that the verdict "chills speech" and that the trial was an example of selective prosecution, finding it unlikely that the students would have been prosecuted if they had interrupted, say, a lecture on physics or biochemistry.[69]
In March 2014, the convictions against the students were upheld by the appeal's court. Lawyers for the defendants indicated that they intended to appeal the decision.[70][71]
Views on the controversy
Legal scholar Faiza Majeed argues that the decision to prosecute Irvine 11 will alienate minority groups, chill free speech and student activism on campuses, and undermine the university ethos.[72] According to him, the Irvine 11 case may have been an example of selective prosecution driven by prejudice against Muslims and by animosity towards the political views expressed by Irvine 11.[73] Supporting this view, he argues, is the fact that the District Attorney's Office's internal emails referred to the case as the "UCI Muslim Case"[74] and the fact that an anonymous source sent the District Attorney's Office a dossier containing emails between MSU leaders discussing their planned protest.[75] Majeed also notes several similar incidents involving interruptions of public speakers that the District Attorney elected not to prosecute.[76]
Asaad, one of the students involved in the protest, stated that he didn't regret his participation:[77]
Without hesitation [this was] the single most important thing I've done during my college career and I don't regret it at all. That's part of who I want to be, that's part of how I want to be a doctor too. I want to be an activist and I want to be able to advocate for patients. I think it's strengthened my character, I think it's strengthened my skills as well.
UCI professor Jeffrey Kopstein asserted that the controversy confirmed the university's reputation as a flashpoint of anti-Israel activism.[78][better source needed]
^Chemerinsky 2010: 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.
^Wahid 2011: What followed is nothing less than indictment upon America’s claim to free speech, the First Amendment of the US constitution and its system of justice.
^Wiener 2011b: The students and their supporters argued ... that the students were prosecuted because they were Muslims.; Orange County Register 2011: Selective prosecutions have a chilling effect on political speech. The First Amendment is of little value if criminal statutes can be used arbitrarily to quash offensive speakers.;Majeed 2012, p. 390: In the Irvine 11 prosecution, ... the prosecution may have been influenced by bias and prejudice against Muslims.; de La Paz 2011: Some claim the DA’s decision was an act of selective prosecution, citing a similar disruption that went unpunished.
^Shabaik 2011: I was moved to this simple act of protest after the devastation I witnessed in the Gaza Strip in the aftermath of Operation Cast Lead, which resulted in the deaths of over 1400 Palestinians, including more than 700 women and children, at the hands of the Israeli military. Months after the attacks, I visited Gaza to deliver medical aid. There, I met the Sammouni cousins, three young girls who were orphaned when an Israeli bomb fell on their home and killed 45 members of their family.
^Majeed 2012, pp. 371–2: On February 8, 2010, Michael Oren, Israeli Ambassador to the United States, delivered a speech to a packed audience at the University of California, Irvine.' With images of the devastation in Gaza and the Sammouni cousins still fresh in his mind, Shabaik decided to make a "poignant statement" during the Ambassador's speech.
^Hall 2010: Eight UCI students and three UC Riverside students
^Alexander & Jarratt 2014, p. 535: Osama summarized the group's view, including the dissatisfaction with previous forms of public presentation on the topic: "[...] Oren. [But] questions don't allow you [...] to do that, because you're limited in the amount of time you have to speak, and then you just ask your question and then you go and sit down. There's no follow-up. [...] [Y]ou can't call out Michael Oren [for] not answering the question."
^Twair & Twair 2010: walking to a side area where they were handcuffed and arrested.; Majeed 2012, p. 372; Hall 2010: briefly detained in another room before being released, after Oren had finished his speech
^Shadia 2011: As police escorted out the last student, another group of students stood up and walked out, cheering and chanting as they did so. The leaving students, who were yelling insults at the Jewish students and others in attendance, were consequently met by jeering,
^Abdulrahim 2010: During the speech, both the UC Irvine chancellor and the political science department chair chided the protesting crowd and called the disruptions embarrassing. “Shame on you,” Chairman Mark Petracca yelled at one point.
^Lumb 2010: The 11 students who disrupted the event were charged with section 403 of the UCIPD penal code – disrupting a public event on the University’s property.
^Lumb 2010: Chemerinsky answered student questions that concerned the Oren lecture, which included the remark that while civil disobedience has a place in public discourse, its practitioners are still subject to punishment from breaking the law.
^Chemerinsky 2010: The law is well established that the government can act to prevent a heckler’s veto ... 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.
^Harris 2010: The revelation about the e-mails was published Wednesday by the Washington-based Investigative Project on Terrorism. The group said the e-mails, which were leaked anonymously to both university officials and local law enforcement, demonstrate that the student union not only helped organize the disruptions, but counseled students to assert that they had acted on their own.
^Ellyn & Bharath 2010: A letter – obtained and released by the Jewish Federation – from a student affairs disciplinary committee to union leaders said the group was guilty of disorderly conduct, obstructing university activities, furnishing false information and other violations of campus policy.
^Ellyn & Bharath 2010: Group members must collectively complete 50 hours of community service, which also needs to be approved by the university.
^Ellyn & Bharath 2010: Hussam Ayloush, executive director of the Council on American-Islamic Relations, said the university’s “selective implementation of rules” is unprecedented and “smells of bias all over it.”
^Medina 2011: “People are afraid to be seen as with us,” said Hamza Siddiqui, a senior and a leader of the Muslim Student Union. “It’s like they went after them, how do we know they aren’t going to come after us next? Everyone is afraid and looking over their shoulder.”
^Medina 2011: Similar outbursts have occurred during speeches by Israeli officials on other college campuses. But it appears that none prompted disciplinary actions from either the college or law enforcement officials.
^Jolly, Galvin & Hernandez 2011: “These defendants meant to stop this speech and stop anyone else from hearing his ideas, and they did so by disrupting a lawful meeting. This is a clear violation of the law and failing to bring charges against this conduct would amount to a failure to uphold the Constitution.”
^Medina 2011: A spokeswoman for the district attorney’s office, Susan Schroeder, said in an interview: “It seems that the basic question is what if we substituted different groups what if this were the Ku Klux Klan who conspired to silence a speech by Martin Luther King.”
^Fishkoff 2011: “We’re pleased to see that the District Attorney’s office is not hesitating to hold members of the Muslim Student Union responsible for possibly criminal behavior," Morton Klein, ZOA national president, and Susan Tuchman, director of the ZOA’s Center for Law and Justice, said in a statement. "Had the District Attorney decided not to prosecute, he’d be sending the message that the disrupters’ conduct was acceptable, effectively making a mockery of the First Amendment and a mockery of our laws.
^Sales 2014: General Counsel Marc Stern of the American Jewish Committee, which filed an amicus brief on behalf of the prosecution along with the Jewish Council for Public Affairs and the Jewish National Fund, ...
^Medina 2011: the district attorney has come under fire from several groups, including the American Civil Liberties Union of Southern California.
^Wiener 2011b: The students and their supporters argued ... that the students were prosecuted because they were Muslims.
^Wiener 2011b: The longest interruption, defense attorneys told the jury, lasted only eight seconds, and the total amount of time taken up by the eleven statements—combined—was roughly one minute.
