On Thursday evening March 22, the Orange County Jewish American Bar Association hosted a discussion of the case of the Irvine 11. The discussion involved District Attorney Tony Rackaukas and Defense counsel Jacqueline Goodman. The discussion was moderated by Dean Erwin Chemerinsky.

In 2010, Isreali Ambassador Micheal Oren came to Orange County to speak at UCI. In the course of the Ambassadors speech, 11 Muslim students, in an orchestrated fashion, stood up at intervals throughout Mr. Oren’s speech. The students were ultimately prosecuted for the conspiracy to disrupt the speech. Ten defendants were convicted, one defendant was dismissed prior to trial. They have been widely referred to as the “Irvine 11” in media accounts of the incident.

The discussion at the OCJBA was for the most part, civil and polite. Ms. Goodman drew an audible response of displeasure from the predominantly Jewish audience when she referred to the students as something tantamount to heroes. Mr. Rackaukas would have been far more effective and persuasive had he not sidestepped some of the pertinent facts of the investigation and by omitting his periodic eye rolling during Ms. Goodman’s comments. Of course, this attorney in the audience would have preferred much more input and not just moderating from the distinguished Dean. Dean Chemerinsky did remind the audience that the students and the club that they belonged to were disciplined by UCI administration but that the terms of such were confidential and could not be disclosed.

Notable commentary from the District Attorney included emphasis on the importance of drawing a “line in the sand” and sending a clear message that this behavior will not be tolerated in the OC. He stated more than once that we had to “start somewhere” as he defended questions of selective prosecution of this misdemeanor matter. When questioned about the dismissal of One student, while the remaining Ten defendants went to trial, the DA vigorously asserted that ALL defendants were offered the “same deal”. It was quite surprising that the DA failed to mention the additional costly litigation occasioned by the inappropriate conduct of his staff, which ultimately lead to the one defendant being dismissed. Ms. Goodman quickly reminded him of the attorney-client privileged emails that were obtained by the DA’s office which lead to three Deputy prosecutors and one investigator being removed from the case. Only after the court ruling that these high ranking deputy prosecutors and an investigator must be removed and screened from the trial prosecution team, was the deal reached to dismiss the one defendant.

A pretty significant legal event, and dramatic move by the trial judge, yet not even mentioned by the District Attorney.

Both attorneys spoke wistfully about how they each were the champion of free speech on their side of the case. Ms. Goodman, in spite of the tangible hostility in the room, gently pointed out the difficulties of trying a case with Muslim defendants, on trial within weeks of the 10^th anniversary of 9/11, and argued that it was the defendants whose free speech was violated. She confirmed that they were organized, argued that they did not in anyway terminate the speech of Michael Oren, that they harmed no one and were for the entirety of the demonstration, peaceful and non-violent. Mr Rackaukus argued that the students intended to and did in fact “shut-down” the speaker and deprived the other students in the room, the right to hear all of what the Isreali Ambassador had to say, and deprived the Ambassador of saying what he came to say.

Neither attorney mentioned the fact that Micheal Oren did in fact end his speech early. There is no indication whether it was due to the disruption of the Muslim students, or the fact that he had Lakers tickets and went directly from UCI to the game.

There was also no discussion of state action. In order for there to be a violation of anyone’s right to Free Speech, the government must have taken some action to interfere with or violate someone’s Free Speech. In this situation, the only “state-action” is the action of the DA in prosecuting the 11(actually 10) students. The students are not government officials. While their behavior was not necessarily “approved” of by UCI (a state school), i.e. they had given proper prior notice to the administration of their demonstration, and their behavior made them ultimately subject to discipline. Was that “state-action” for the University administration to take action against the students who were speaking out, expressing their views? There was no state action on behalf of the students, their conduct not sanctioned or directed by UCI, and there was no effort by UCI to terminate Oren’s speech at the behest of these students.

Interestingly, there were about 100 professors from UCI, including Dean Chemerinsky as well as several Pulitzer and Nobel prize wining professors, who petitioned the DA to NOT proceed with the prosecution of the students. Their argument being that the action of the DA in the prosecution of such activities that occurred on campus would have a chilling effect on other students exercising their right to protest in the future. The staff in that letter emphasized the open forum and environment encouraging expression on college campuses. No one at the OCJBA discussion mentioned that the staff at UCI opposed en masse the prosecution of these students.

There was also an organization called Jewish Voice for Peace that implored the DA not to prosecute these students and opposed pushing this matter to trial. No one at the OCJBA discussion mentioned that either.

Mr. Rackauckus was adamant in his “start somewhere” comments that a message must be sent that this behavior is not appropriate in this county. He did not mention any prosecution of any other defendants under this theory of a misdemeanor conspiracy to deprive someone of their free speech rights. A diligent search for a similar case, prior to, or since this prosecution has yielded no results of any other such prosecution. This was the lone case.

I was disappointed at the lack of information that the District Attorney imparted. This was certainly a “home-field” advantage for him. An audience of lawyers, intellectual and presumably sophisticated legal minds, deserved a more fact intensive and analytical presentation from the lead prosecutor. Ms. Goodman mostly held her own. She overlooked the obvious bias against her association with the Muslim students and politely corrected the District Attorney when facts were omitted.

I have a visceral opposition to the anti-Israel views of these students, but I wonder what purpose is served by prosecuting them. I have learned as a trial lawyer, that trial rarely fixes anything, and generally drives warring sides further apart. The most sensible thing I heard that evening came from the closing remarks made by the OCJBA president, Jordan Steinberg related to the importance of dialogue. He pointed out that there is a facebook page entitled Isreal <3 Iran, with the profile photo of an Isreali father holding his daughter, the message being, “we don’t want to bomb you”. A simplistic approach to a complicated problem? Perhaps, but one that takes into account humanity. Apparent in the situation of the Irvine 11, it is always easier to villify anyone when they are nothing but an impersonal label.