At the urging of fellow Trojan Susan Kang-Schroeder, chief of staff to Orange County District Attorney Tony Rackauckas, I’ve dug deeper into the Irvine 11 case to see if the DA’s evidence and arguments could change my mind. In a piece for the Huffington Post, I argued that the protesters’ actions weren’t protected speech, but that their actions also didn’t call for criminal charges. I believe that puts me firmly in the middle, alongside UC Irvine Dean Erwin Chemerinsky.
The OC District Attorney has a clever and well-argued rebuttal piece in today’s OC Register and has made their evidence publicly available. I’d encourage anyone interested in the case to read their case file. Orange County District Attorney deserves kudos for his commitment to open government. (Side note: I’m also incredibly impressed with his decision to seek criminal charges against two police officers in the Kelly Thomas case. Despite significant political risks, the district attorney did what was right.)
I’ve always maintained that protesters engaged in a “heckler’s veto,” which is not a protected speech act. So, the only question is whether the district attorney’s office should have filed criminal charges. I’ve reviewed the DA’s documents, watched the You Tube videos, and read several dissenting opinions, but…
My position remains the same. I do not believe criminal charges were warranted.
- Not every violation of the law deserves a criminal charge.
- A failure to prosecute would not have encouraged other hecklers in the future.
- Racism and anti-Islamic sentiments are present everywhere in the world, including Orange County.
- The DA’s decision to prosecute was not motivated by racism or anti-Islamic sentiments.
Governor Jerry Brown recently opined, “Not every human problem deserves a law.” Likewise, not every violation of the law deserves prosecution. Just because you can prosecute doesn’t mean that you should prosecute. This morning, I broke at least half a dozen traffic laws. Right now, my car is parked in violation of a clearly posted two-hour time limit. Since I’m writing about it online, I’m sure that brings in some sort of violation of a federal telecommunications statute. If I invited a friend to meet me, you’d have a conspiracy charge, too.
My point is that we all break the rules. Specifically, in this case, the peanut gallery’s clapping disturbed the ambassador’s speech as much as, if not more than, the protesters’ interjections. It’d obviously be unreasonable to prosecute everyone who clapped, booed, hissed or cheered in support of the protesters.
Let me also clarify that I don’t believe the District Attorney or his staff were motivated by racism or anti-Islamic sentiments. As he writes in his OC Register piece, “History requires us to draw a line in the sand against this sort of organized thuggery.” That’s his reason for prosecuting, not racism.
Even still, I can understand why some Muslim Americans felt this prosecution represented a double standard, especially when you consider the hateful comments of some elected officials in Orange County. But, the District Attorney and his staff are not in any way connected, affiliated or in league with those bad apples. Remember, it was Mike Schroeder, Susan’s husband, who led the condemnation of the racist “Obama chimp” email kerfuffle. He led that fight because it was the right thing to do, because racist comments should be condemned.
The District Attorney prosecuted to “draw a line in the sand” against this behavior, and I don’t think these protesters deserved to be that “line in the sand.” These students weren’t thugs. They weren’t violent. They didn’t physically intimidate. They don’t understand First Amendment law, but I still don’t see criminal behavior.
I believe in freedom and limited government. Thus, presumption always rests with government inaction. If this case spurred a series of interruptions at other community events, eventually, there might be a justification for prosecution. Maybe. But, until there is some credible impact to this slippery slope, I don’t see a significant justification to make an example out of ten students. Especially after they’ve received punishment from the university.