BROOKE GLADSTONE:

From WNYC in New York, this is On the Media. I’m Brooke Gladstone.

BOB GARFIELD:

And I'm Bob Garfield. In the wake of last week's Palestinian bid for statehood, an 18-month-old domestic dust-up rears its head. In February of last year at the University of California Irvine, a group of Muslim students protested a speech by Israel's ambassador to the U.S., Michael Oren.

AMBASSADOR MICHAEL OREN:

So I am speaking to you –

MALE PROTESTER:

Michael Oren, propagating murder is not an expression of free speech!

WOMAN:

Shut up!

[CROWD HUBBUB/SHOUTS]

The Irvine 11, eight students from UC Irvine and three from UC Riverside, were charged with conspiracy and disturbance of a meeting. Last Friday a jury found ten of them guilty.  Tony Rauckauckas  is the Orange County district attorney. He said his office prosecuted the students because of overwhelming evidence in emails, on video and from eyewitnesses.

TONY RAUCKAUCKAS:

It was very clear that this was not just some kind of a shout-down or some sort of spontaneous heartfelt display. This was a conspiracy developed over time to shut down the Israeli ambassador from speaking. So this was a serious challenge to freedom of speech.

BOB GARFIELD:

All right, fair enough. But there's no law that stops a citizen from depriving another citizen of freedom of speech. The Constitution protects us as citizens from the government repressing our right of expression.

TONY RAUCKAUCKAS:

Well, there is a California law that says that it's unlawful to disrupt a lawful meeting. In this case, sir, it was a freedom of speech issue because here it was a case of this group saying that the speaker would not be allowed to speak.

BOB GARFIELD:

You know, I get that. But there's nothing in the Constitution that says an individual has a responsibility to let other people talk. It's annoying and it's obnoxious, but we're not talking about censorship in the strict legal sense, are we?

TONY RAUCKAUCKAS:

We are talking about one group of individuals determining who can speak and what can be said on a university campus. So they did, in fact, make a censorship decision. What you're saying is that the only kind of censorship that could be called censorship is if it's done by the government. And frankly, I disagree with that.

BOB GARFIELD:

The University of California Irvine police came to you with a complaint and then it behooves you either to pursue or, for whatever reason, not to pursue it. There are a lot of speeches interrupted by protesters border-to-border, coast-to-coast, especially at universities. But -

     [OVERTALK]

TONY RAUCKAUCKAS:

But not – not when we have evidence of a – of a conspiratorial plan to shut down the speaker. I'm not aware of ever turning down a case where we had that kind of evidence.

BOB GARFIELD:

Are you aware of ever prosecuting one?

TONY RAUCKAUCKAS:

No. I think this is probably the first case that we got with this type of evidence where it was so clear.

BOB GARFIELD:

So that was the bridge too far for you. Not that a bunch of kids stood up at a meeting and repeatedly shouted down the speaker, but that they had planned to do it to make sure that this voice of the Ambassador would be shut down.

TONY RAUCKAUCKAS:

I think that the planning and the intention were clear and certainly were important to the case, yes.

BOB GARFIELD:

Of all of the students in all of the universities who break up a meeting by doing something or other loud and obnoxious, the ones who wind up getting prosecuted - ten kids with an explicitly Muslim political agenda. Did you discuss in your office whether the prosecution itself would be perceived as a disproportionate administration of justice?

TONY RAUCKAUCKAS:

I think what we discussed concerning the political implications were that if we don't proceed on this case, that we would not be able to proceed on another future case where say the Muslims were shut down in their attempt to give some kind of a speech.

What it comes down is whoever the group is — it doesn't matter if it's a Muslim group or some other group, we just can't allow one group to stop everybody else from putting their views forward, if it comes to us by way of a criminal complaint. I mean, I – you know, I don’t s – if it was any other group, we’d do the same thing.

BOB GARFIELD:

Tony, thank you very much.

TONY RAUCKAUCKAS:

All right, thank you very much.

BOB GARFIELD:

Tony Rauckauckas is the Orange County district attorney.

Erwin Chemerinsky is dean of the law school at University of California Irvine. He said that even though the students clearly violated California law, he never expected this outcome.

ERWIN CHEMERINSKY:

I was very surprised when the D.A. decided to bring criminal charges here. You only see prosecutions if there's injury to people or property or serious risk of injury to people or property. That wasn't present here.

BOB GARFIELD:

Tony Rauckauckas, the D.A. with whom we’ve just spoken, says that he believes that apart from the statutes that the students violated, ultimately they were guilty of censorship, of abridging Ambassador Oren’s freedom of speech. Do you buy that?

ERWIN CHEMERINSKY:

I do but it has to be put in perspective. Ultimately, Ambassador Oren was able to deliver his entire speech. They delayed his ability to do so, but it's different than the way it was being described of abridging, keeping him from speaking. He did deliver his entire address.

BOB GARFIELD:

When we spoke to Tony Rauckauckas, he said, look here, the police came to us with the case. We had video evidence, we had hundreds of eyewitnesses and we had an email chain, which proved conspiracy beyond a shadow of a doubt. And when police bring good cases to his office, his office prosecutes.

ERWIN CHEMERINSKY:

It's so overly simplistic. D.A.’s get strong cases all the time that they choose not to prosecute. In Los Angeles, for example, the City Attorney is prosecuting almost no misdemeanor offenses because of budget shortfalls.

So the strength of the case is one factor any district attorney would consider, but it’s not the only factor. Is it good for the community to bring the prosecution? In this instance, it clearly wasn’t good for the community.

There’s been a long history of incidents here at UCI, of tensions between pro-Palestinian students and pro-Israeli students. This incident was particularly explosive. It was a year and a half ago. If there hadn't been the criminal prosecution, everyone could move on beyond it. But instead, what he’s done is keep open and deepen a wound in the community.

BOB GARFIELD:

What about this? In a subsequent university- sponsored event a pro-Palestinian speaker should be interrupted, shouted down, verbally abused by a group of Zionist students?

ERWIN CHEMERINSKY:

I would be taking the exact same position. They should be punished by the university. There was no need for criminal prosecution.

Now, of course, if this happens in the future and the D.A. doesn't prosecute, then there’ll be claims of unequal justice, of discriminatory prosecution. And I think those would be very powerful criticisms.

On the other hand, it's really sad to see a bad decision become precedent for future bad decisions.

BOB GARFIELD:

Some have said that this prosecution in essence deprived the students of their free speech rights.

ERWIN CHEMERINSKY:

There is no First Amendment right to go into any public meeting and shout down the speakers. The students could have stood outside the auditorium and held up picket signs or handed out leaflets or held their own demonstration across campus. That's what the First Amendment allows them to do.

That said, the question then is what's the appropriate punishment for these students. I think the appropriate punishment was university discipline, no need for criminal prosecution. But instead, the students now are celebrated as champions for free speech.

BOB GARFIELD:

All right. Erwin, thank you so much.

ERWIN CHEMERINSKY:

Anytime.

BOB GARFIELD:

Erwin Chemerinsky is the dean of the law school at the University of California at Irvine.