Assistant Principal Miguel Rodriguez sent home 5 students at Live Live Oak High School in Morgan Hill, California for T-shirts showing the American flag. Rodriguez felt that clothing displaying the American flag on Cinco de Mayo was incendiary.  He was wrong.  He made a mistake.

The students were engaging  in  constitutionally protected 1st Amendment expression. This is not a close call. For a good discussion on the case law in this area  you can go to the Volokoh website.

The principal later apologized.  No further action was taken against the students nor was it made part of their permanent records.

The parents are still up in arms, holding town hall meetings and screaming about lawyers on Fox News.  A town hall meeting is appropriate as the principal should have to explain his actions and issue a mea culpa if that’s what the parents are after.  Beyond that, let’s move on.  I suspect the students want to move on.  Unlike the parents they have no agenda.

The students have not been damaged in any way.  To my knowledge they simply got a day off school.  The students  have no 1st Amendment claim if no official punitive action is made part of their permanent record.  The parents should quit pushing their own agendas.  No harm no foul.  Flag On!

There has been another instance of a person using a intercom to make a racially charged statement. This time it was at Whole Foods.  I have frankly been trying to get my hands around what crime was committed the 1st time it happened at Walmart.

To refresh my readers on the facts, in March  a teen boy was able to access the intercom in a New Jersey Walmart and put out the following announcement:

“Attention Wal-Mart customers: All black people leave the store now.”

An investigation was conducted by law enforcement, The teen has been charged with bias intimidation and harassment.

By charging this teen with those two crimes, we are attempting to punish speech, not conduct. This is something the 1st Amendment frowns on unless very narrow exceptions criteria are met. It must fit into a specific class of speech that takes it out of the realm of 1st Amendment protection. We do not punish people for simply using racially charged hate speech with nothing more. Some examples of speech that does not have protection are speech that incites others to imminent violence and fighting words.

Bias intimidation is an enhancement crime.  A person can not be guilty of bias intimidation without being guilty of an underlying crime which is in this case harassment.

The issue becomes whether in engaging in the offensive speech in asking blacks to leave the Walmart does the harassment charge comport with the 1st Amendment.  The New Jersey Harassment statute reads as follows:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

I have 3 issues with the statute. The 1st is the use of the phrase “communication or communications. It is sweeping in all types of speech including political speech and other speech which would enjoy 1st Amendment protection. The 2nd is the phrase “extremely inconvenient hour”  One person’s inconvenience is anther’s normal work day. If I make an anonymous 7am call to my state representative who voted for Health Care reform and drop a couple f-bombs have I violated the harassment statute?  A lot of people are probably guilty of harassment in this country right now.

The 3rd thing that bothers me is the phrase “likely to cause annoyance or alarm” What does that mean?  It is vague.  Moreover, it seems there would be existing laws that could have just as easily been used to prosecute this boy such as trespassing or possibly criminal mischief.

As despicable and offensive as the teens speech was, I believe the New Jersey Harassment harassment statute is void on its face as being unconstitutionally vague and unconstitutional in its use to punish the speech of the teen.

Israeli Ambassador to the United States Michael Oren was invited to speak  to about 500 students at University of California at Irvine on Feb. 8.

About 6 minutes into the presentation a number of protesters from the Muslim Student Union rose and began chanting, “MR. OREN! MASS MURDER IS NOT FREE SPEECH!” as well as allegedly yelling “Killers!” “How many Palestinians did you kill?”

Mr. Oren left the stage but eventually came back out and finished his presentation. The protesters were removed from the venue by security.  11 were arrested for disrupting a public proceeding and the students among them face university discipline.

There has been debate over whether the students who were engaging in what is being called a “heckler’s veto” should be punished. Were the students engaging in protected free speech which would preempt any type of discipline?  Has the the line between free speech and the academic freedom needed to put on such presentations without disruption been blurred beyond recognition?  In coming to any conclusion it is important to keep in mind that UC-Irvine is a State University.  This was a University sponsored event.  Both the Federal 1st Amendment and the California 1st Amendment would therefore be in play.

While I  disagree that there is no right to a heckler’s veto as an absolute, I am on the side of Erwin Chemerinsky, Dean of the UC Irvine School of Law in his editorial published in the L.A. Times and Professor Alan Dershowitz in his Huffington Post editorial.  This was not spirited political debate in which a response was expected or allowed. It was coordinated censorship.  What’s the point of academic freedom if it can not be exercised to the benefit of the student body to the same extent as the protesters would expect if someone they admired was speaking.

From a practical spectator standpoint, I would also be pissed as hell if I was sitting in that auditorium unable to hear because of obnoxious students. I don’t care if they are Muslims, Jews, Hindus or Hare-Krishna’s.They are ruining the experience I have a right to enjoy and engage if I so choose.  Let’s be clear.  This was a structured event. It was not a “free for all come-all” in a public square. Unlike a public square, the protesters got into the event to the exclusion of other protesters and spectators. That is not open free speech as if they were in the square and anyone could chime in.   It implies rules of conduct and a level of respect and decorum.

I understand that free and unpopular speech does not always occur in convenient places. One of the the points of protest is to do it in a manner to make a point.  As obnoxious as these kids were, that can not be brushed off.  Free speech sparing is not always done by the Marquess Of Queensbury Rules.  We can only protest if we are nice and polite?  Were the framers always polite in their dissent of the crown?  They never shouted down the King’s emissaries as they addressed the colonies on new taxes?

In the end, the video speaks for itself to the detriment of the motives of the yelling students. This was not a spirited debate. This was an attempt to silence by screaming.  The epitome of verbal terrorism. It was an attempt to stifle the academic freedom rights of Ambassador Oren and other students on the same level they claim their rights were snuffed out.  This was not a come all campus wide  protest on the University Green.  This was an invited speaker, organized event in which the attendees had a right of reasonable quiet enjoyment and Ambassador Oren had a right to retort to any protest.  This  was not an open public square available to all who want to shout down the shouters.  The hecklers should have been escorted out.

The statute under which the hecklers were arrested reads as follows:

“Every person, who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in Section 302 of the Penal Code….. is guilty of a misdemeanor”

In Hill v. Colorado the court held that the First Amendment right to free speech was not violated by a Colorado law limiting protest, education, distribution of literature or counseling within eight feet of a person entering a health-care facility.

What this tells me is that the University and city can establish reasonable content neutral rules that prohibit acts that endanger the safety of the speaker or the other members of the audience. They however can not regulate based on the content of the speech.  It does not end there.  I take issue with the California statute as applied here.   What does “disturb” or “break-up” mean?  Would it even be possible to craft a jury instruction?  There is an argument that these words as applied to the protesters are so vague as to be unenforceable and therefore unconstitutional as applied to the protesters.

In the end, I am glad the protesters were escorted out.  I have the same right to listen that they have to be heard.  They can be heard outside the event.  They do not have the 1st amendment right to shout down to the exclusion of all others in the room. This is not a public square.  I however am uncomfortable with any academic discipline or legal action against the protesters.  They wrere not inciting either the speaker or the crowd to violence against the speaker or other members of the crowd.  We should be arresting the dangerous, not the obnoxious.

Most do not know that I have actually served in the military. Between my 1st and 2nd year in law school I spent a whole 3 weeks  in the Marines Officer Candidate School at Quantico Virgina before I was drummed out for knee and foot problems.  During that three weeks the only combat I  saw was the daily verbal assault from my Sergeant Instructor about my unworthiness to be a Marine. (He turned out to be right).  The only heroic deed I accomplished was to not cry when I was being yelled at.

I do have some regrets about not being of the caliber the Marines were looking for. Not being one of the Few Good  Men.  If I stayed, I may have been deployed to Desert Storm which is where many of the the people I was in with ended up.  Maybe I would have went on to save my platoon, fallen on a grenade, some other heroic deed.  Hopefully I would have  lived to tell about it and received my medals, maybe even the “Medal Of Honor”.  In the end, the closest I have come to Marine bravery since is finishing the Marines Corps Marathon with a personal best of 3:27.

The Medal of Honor is the highest award for valor in action against an enemy force which can be bestowed upon an individual serving in the Armed Services of the United States. Generally presented to its recipient by the President of the United States of America in the name of Congress.  The bravery required to receive this honor are chronicled in the heroic acts of the living and dead since 1861.

In 2005, Congress felt so strongly about protecting the memory and integrity of military awards  and the “integrity of valor” inuring to military  medals from those falsely claiming they have received them, that the Stolen Valor Act was passed, signed into law in 2006 by President George W. Bush Jr.  The law expanded a previous law against fraudulently wearing a service medal to include falsely representing that one had received that honor. Violators can be fined or jailed for up to six months.

In essence, the new law criminalized lying.  Not just lying about having received a medal to profit in some way but lying for ANY reason.  The constitutionality of this under the 1st Amendment is about to be tested.  Attorneys in Colorado and California are challenging the law on behalf of two men  charged under The Stolen Valor Act taking the position that the First Amendment protects almost all speech that doesn’t hurt someone else.

While I disdain those who would dishonor the honor paid for so dearly by thous fighting for democracy,  I also hold the 1st Amendment in the highest regard. While those lying for the sake of lying are not engaging in any act personifying the debate that embodies the “idea of free speech” such as burning the flag which is protected, they are also not engaging in conduct that creates any “tangible” harm, only perceived intangible harmed.  To criminalize this when it is not an element of another criminal act such as fraudulently claiming medals for profit,  personifies the essence of the “thought police” and is not what our military brethren paid for with their lives and limbs in receiving such medals.

The Stolen Valor Act to the extent it criminalizes lying for the sake lying is unconstitutional and should be struck down.