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.

The Harvard Crimson is the official student newspaper of Harvard University.  The paper has come under intense criticism as a result of an advertisement it ran questioning the reality of the Holocaust.  The paper claimed that that ad was rejected over the summer and run in error.

The advertisement, submitted by Bradley Smith, founder of the Committee for Open Debate on the Holocaust, challenged readers to “provide, with proof, the name of one person killed in a gas chamber at Auschwitz.”  The ad also raised questions about then-Gen. Dwight Eisenhower’s account of World War II.

In a CNN article, Crimson President Maxwell L. Child stated that three weeks of summer vacation between the submission of the advertisement and the publication of the paper was the reason that the ad “fell through the cracks.”

Was the publication of the ad simple incompetence  injected into a fine tuned editorial review process? Was it something more?

On the most basic level I am willing to accept that the ad “could”  slip through the ‘cracks” of the Crimson editorial/ad review process.  If the SEC  can be incompetent enough to miss Bernie Madoff,  it is not a far stretch believing that the staff of the Harvard Crimson can achieve that same level  and miss the Holocaust Denial Ad.

I approached Harvard Professor Alan Dershowitz for his input. He stated:

“If a newspaper eschews all substantive standards and publishes all adds,regardless of their content(the”taxicab”approach) then I would have no quarrel. But if it rejects some ads because they are patently false,offensive etc and did not exercise its freedom to reject this one,it has some explain to do. I think The Crimson is in the latter category unless it had dramatically changed its long time policies.”

When I asked if he accepted the University’s explanation that the ad simply “fell through the cracks” he stated:

“Probably but this issue has recurred on many campuses”

I won’t tried to read the mind of Professor Dershowitz but I will read between the lines. That does not sound like a ringing endorsement of the Maxwell Child’s “oops statement”

Without a smoking gun, we will probably never know whether this was real or feigned incompetence on the part of The Crimson.  We do know however that in end there had to be a real person that put real eyes on that ad and made a conscious decision to let it run. Who is that person?  What is his/her explanation?  Where did the buck stop right before that ad went to print?  We may never know.

For guidance we can look to the tried and true axiom.  It’s always easier to ask for forgiveness than permission.  Did someone at the Harvard Crimson go through that exact thought process?

Again, we may never know…

Copyright 2009.

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Harvard Professor and 1st Amendment Free Speech Expert Alan Dershowitz has gone public with his support of companies who choose not to advertise with Facebook if their ads appear next to Anti-Semitic hate content including Facebook Holocaust Denial Groups.  Here is what he had to say in response to the decision of Dominos Pizza to insist that Facebook ensure that their ads not appear next to any Anti-Semitic content or face loss of the account:

“Freedom of speech and association certainly includes the right not be associated in any way with antiSemitic hate speech. I applaud advertisers who exercise their rights by refusing to advertise in proximity to Holocaust deniers”

Facebook has taken great pains to point out that they have consulted “experts”  in coming to the conclusion that Holocaust Denial/ The fact of denying the Holocaust does not constitute “hate speech” under their terms of service(TOS).  In a interview on  CNN.com, Facebook representative Barry Schnitt stated:

“It’s a difficult decision to make. We have a lot of internal debate and we bring in experts to talk about it,” Schnitt said. “Just being offensive or objectionable doesn’t get it taken off Facebook. We want it [the site] to be a place where people can discuss all kinds of ideas, including controversial ones.”

In an email to Chris Matyszczyk on the CNET blog “Technically Correct” Barry Schnitt further stated:

“The experts we’ve talked to have generally been Internet law experts, free speech people, and experts on radicalism and technology. They haven’t been specifically related to the Holocaust but that is a good idea.”

Despite requests to Facebook as to the names of the experts that were consulted on the above issues and on the issue of whether Holocaust Denial constitutes hate speech, there has been no response.  CEO Mark Zuckerberg has  shown no transparency on this issue. I therefore decided to consult an expert of my own.

Professor Alan M. Dershowitz has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,”  He is the Felix Frankfurter Professor of Law at Harvard Law School.  Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.

He has published more than 100 articles in magazines and journals such as The New York Times Magazine, The Washington Post. The Wall Street Journal, The New Republic, The Nation, Commentary, Saturday Review, The Harvard Law Review and the Yale Law Journal, and more than 300 of his articles have appeared in syndication in 50 national daily newspapers. Professor Dershowitz is the author of 27 fiction and non-fiction works with a worldwide audience. His most recent titles include Rights From Wrong, The Case For Israel, The Case For Peace, Blasphemy: How the Religious Right is Hijacking the Declaration of Independence and Preemption: A Knife that Cuts Both Ways, Finding Jefferson – A Lost Letter, A Remarkable Discovery, and The First Amendment In An Age of Terrorism.

You can dispute his qualifications if you like but I doubt there is a court in this country that would not admit him as an expert on hate speech,free speech or any 1st Amendment issue for that matter.

Here is the email I received from Professor Dershowitz regarding the issue of  Facebook’s tolerance of  Holocaust Denial Groups and whether it constitutes hate speech.

You are absolutely correct that Holocaust denial is hate speech. There are no Holocaust deniers who are not blatant antiSemites. Every Holocaust denial website also features antiSemitism. You are also right that transparency is the key. If Facebook took the position that it censors nothing,that would be one thing. But to espouse the substantive position that H denial is not hate speech is very dangerous and unacceptable.

An expert has spoken right to the point.  Are you listening Mark Zuckerberg?