The so-called Irvine 11 were each convicted of two misdemeanors Sept. 23 for disrupting a UC Irvine event featuring Israeli Ambassador Michael Oren in February 2010.

UC Irvine campus (via Creative Commons)

The case captivated many because of the drama surrounding the First Amendment free speech issues at stake. Prosecutors accused the students of violating Oren’s free speech rights, while the students held that their disruption of the speech was a lawful protest – an exercise of their own free speech rights.

The students face fines, probation and 56 hours of community service. Defense attorneys say they will appeal. Charges against an 11th defendant were dropped pending completion of community service.

Reem Salahi, one of the six attorneys representing 10 “Irvine 11” students, expands on the issues of protected speech, discrimination, and where they go from here.

Neon Tommy: In general, how do you assess the verdict?

Reem Salahi: We had hoped that it would come out otherwise. We’re hopeful that on appeal we can get the verdict overturned.

It’s been a tremendous experience representing these young students. They persevered throughout this case and this prosecution, very selective prosecution. 

NT: Where do you think are the holes in the prosecutor’s arguments that Oren’s free speech rights were violated?

RS: One of the issues the way that the penal code that is been returned under Penal code 403. It basically looks at either implicit customs or explicit rules. Basically, in laymen’s term, implicit customs are the norm, what is normal, what happens at college campuses normally, not only college campuses, but other political forum. So here you have Ambassador of the State of Israel, who is a political figure speaking at UC Irvine for this political meeting, the political assembly.

The reality is that when you have political speakers it is quite common for there to be expression of dissent, for there to be protest even within the forum. I’m not talking about just people protesting outside, but I’m talking about people protesting, hassling and interrupting the speaker as he is speaking. It is quite common.

One of the issues that relates in our case is looking at what is implicit norm, what is implicit custom. We had a number of individuals testify us to either protest that they personally witness where individuals come and they will protest and trump speakers, particularly political speakers, or they themselves do the same thing, either UC Irvine or other universities across the nation. So we have one individual after another individual testify to this common practice of protesting and expression of dissent.

One of the holes in the prosecution's case was that they didn’t really address the implicit custom, and they also didn’t really address explicit rules. They took the statements that were made at the podium by the MC as the explicit rules, but you can’t conspire. One of the charges is conspiracy to disrupt a public meeting. You can’t conspire to disrupt a meeting if you don’t know what the explicit rules are beforehand. 

Beyond the various issues we brought up at trial, there is also an issue of the motive behind the prosecution, the selectivity of it and the discriminatory nature of this prosecution. These types of protests happen all the time. It is actually very rare, completely uncommon for individuals to be prosecuted under Penal Code 403. That’s exactly what happened in this case.

The prosecution was hell-bent on bringing these charges and convictions against these students and jump through many, many hoops in order to bring it forward. For example, they issued search warrants to obtain all the students’ emails from one period of time to another period of time from Google, Hotmail, Aol. Then they paneled the grand jury and compelled university administrators as well as other students to testify against these 10 “Irvine 11” students, which is actually extremely un-heard-of, particularly in the cases. It’s almost completely uncommon for grand jury to be used in misdemeanor cases.

NT: As you said, protests during speeches happen all the time, why do you think the “Irvine 11” face criminal charges?

RS: It’s hard for me to say. I can tell you that throughout this trial students have been identified as Muslim students. Even in the Orange County District Attorney’s internal documents that we got access to they were identified as Muslim students. It does leave a question mark as whether identity of the students, their religious backgrounds was the motivation behind their prosecution.

Another issue is their political speech. They were obviously very critical of Israel, Israeli policies, and very pro-Palestinian.

One of the issues that was raised during the trail was whether the content was being criminalized. It was content versus conduct. And the defense said very clearly that this was a content-based prosecution. I think those are issues that may have been issues that motivated this prosecution as opposed to incidents of other protests that take place quite commonly. It does appear to be some of the issues behind this discriminatory and selective prosecution.

NT: What do you think is the implication of this verdict?

RS: We’re appealing this. So we’re hopeful that we will be able to win on appeal. Hopefully this will not have any implication. It is been very heart-warming to see the support of the community, the support of a lot of individuals throughout the country – civil liberty group, civil rights groups, independent citizens who have come out and support. So we’re hopeful that quite often what happens in these kinds of political prosecutions that you tend to mobilize individuals and you tend to politicize individuals. So the ramifications, while there is a threat of chilling effect, there is also a threat of educating individuals about the First Amendment and about discriminatory prosecution.

I’m hoping that there will not be a chilling effect. I’m hoping that individuals will remain empowered to engage, specifically engage, engage and protest, to be politically active on their campuses. We are hopeful that this will get overturned on appeal.

NT: How do you see this case in relation to freedom of speech?
 

RS: This is a case very much about balancing what is protected versus what is not protected speech. The issue of whether they should be convicted or not really comes down to issues of whether their speech is protected. Obviously our view is their speech was protected by the First Amendment.

Therefore, it was unlawful for the prosecution to file the charges in the first place. They should not have been convicted of those charges. Again this is another issue that on appeal... This is basically the crocks – the question is whether their speech was protected or not and whether it can be criminalized or not. We clearly think that it was protected and we don’t think that it was appropriate for it to be criminalized.

Reach Gracie here.