Response Letter to UC Irvine

 July 3, 2017

Chancellor Howard Gillman

University of California Irvine 

Re: Students Supporting Israel Event at UC Irvine.

Dear Chancellor Gillman:

We write to respond to the May 30, 2017 letter from the Palestine Legal Cooperating Counsel and to set the record regarding the events from May 8 to May 11, 2017 straight.  (As the Palestine Legal Cooperating Counsel is representing Students for Justice in Palestine in the interests of clarity we will refer to them both as “SJP”).  Additionally, it has come to our attention that the University of California — Irvine (“UCI”) has begun an investigation into the allegation SJP made against Students Supporting Israel (“SSI”).  This letter will serve both as refutation of SJP’s claims, and an explanation of our legal position regarding SSI’s conduct.

While we cannot possibly address every falsehood, incorrect statement, and innuendo in the May 30^th letter, we do wish to point out the most glaring and egregious misstatements of both law and fact.  As a preliminary matter, it is quite noteworthy that a letter from counsel is entirely devoid of any legal citations or references to materials that would support the allegations made therein.    

I.                    

The facts are these.  During the week of Monday, May 8, 2017 various pro–Palestinian campus organizations, led by SJP, organized a series of events for the annual anti–Zionism week.  For a number of years past, the viewpoints expressed in these events went virtually unchallenged, no matter how offensive some of the statements made by SJP and its allies were.  A number of UCI Jewish student groups, including, primarily though not exclusively SSI, decided that this year will be different and that pro–Israel viewpoints will be presented along with anti­–Israel ones.  This of course, is in keeping with the First Amendment ideals.  See, e.g., Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech….”).        

Following Justice Brandeis’ exhortation for more speech and more education on controversial topics, SSI invited several guests to visit the UCI campus.  These guests were chosen on the basis of their experience with Israeli society and Israel Defense Forces (“IDF”).  This, of course, is no different than SJP extending invitations to its chosen speakers; many of whom are, also not part of the University of California community.   

Contrary to SJP’s letter, the guests invited to campus by SSI were not “foreign military agents.”  It is true that a number of visitors belong to the group called “Reservists on Duty.”  It is, also, true that these individuals are, as are all Israeli citizens, members of the IDF reserve.  But, it is equally true that this is not noteworthy.  For example, every American male of college age has to be registered with the Selective Service System.  See 50 U.S.C. § 3801, et seq.  Yet, it has never occurred to any rational person to call every American male a “military agent.”  Nor is the group part of the Israeli military or any other state agency.  It is a volunteer group dedicated to providing a Zionist perspective on the Arab–Israeli conflict.  See http://onduty.org.il/about/  The “Reservists” in the organization’s name refers to the fact that the volunteers are “Israeli reserve combat soldiers and officers,” while the “on Duty” part is a reference to the volunteers’ belief that it is “their duty to expose and counter BDS, the new anti-Semitism erupting on college campuses across America.”  Id.  The misunderstanding of these simple facts alone shows how hopelessly confused the SJP presentation is.  However, that is not even remotely the only instance of SJP either misunderstanding or purposeful misstatement of fact.

For example, a number of Reservists on Duty who visited UCI were U.S. citizens, born and raised in the United States.  Wholly apart from their status as guests of the UCI student groups, these individuals enjoy the full panoply of Constitutional rights, including right to speak and protest in any public forum.  See United States v. Grace, 461 U.S. 171, 177 (1983); see also UCI Code of Student Conduct Handbook, Part VI.  It is, of course undisputed that the location SJP chose to erect its “mock wall” is a public forum.  SJP simply cannot expect to conduct controversial activities at that public place without having opposing viewpoints be expressed.  Nor would the First Amendment permit such exclusivity, SJP’s space reservation notwithstanding.  See, e.g., Mason v. Wolf, 356 F. Supp. 2d 1147, 1161 (D. Colo. 2005) (holding that when there is “no reason to believe that an off–campus group was any more likely to pose a risk or cause a volatile situation than a student group” a university cannot limit counter–protestors’ access to the same “flagpole area.”)

Second, the law is clear that all individuals physically present in the United States (whether or not they are U.S. citizens) enjoy the protections of the First Amendment.  See Kwong Hai Chew v. Colding, 344 U.S. 590, 598, n.5 (1953).  Thus, irrespective of the nature of their organization or membership, Reservists on Duty are entitled to the very same protections that SJP is seeking to arrogate to its exclusive use.

Third, it is “well established that the Constitution protects the right to receive information and ideas.”  Stanley v. Georgia, 394 U.S. 557, 564 (1969) (emphasis added); see also Beard v. Banks, 548 U.S. 521, 543 (2006); Martin v. City of Struthers, 319 U.S. 141, 143 (1943).  It is undisputed that some members of the UCI community wished to receive information provided by Reservists on Duty.  These members have a clear constitutional right to that information even if that information were provided by “foreign military agents.”  It is not within the power of SJP or other objectors to preclude their fellow UCI members from access to this information. 

In short, its liberal use of charged language and epithets notwithstanding, SJP has no legal basis whatever to complain about the presence of Reservists on Duty on UCI or any other public university campus.

II.                 

The SJP letter also makes a number of specific allegations which are worth responding to.  Once again, though, most of these allegations have either no basis in fact or are just not legally (or, for that matter, morally) cognizable. 

First, the SJP letter alleges that “[t]he soldiers wore t-shirts with the slogan, in Arabic, ‘Israel is the only candle in a region of darkness.’”  This “allegation” is almost correct.  One of the members of the group did in fact wear a shirt with that slogan.  However, the SJP letter’s conclusion that “[t]he use of Arabic indicates an intent to specifically target students of Arab backgrounds who would understand the insulting script,” cannot withstand even a momentary encounter with reality.  First, the shirt was worn by a member of the group who was born in Lebanon, is an ethnic Arab, and whose native language is Arabic.  Following SJP’s logic, a native Arabic–speaker should be precluded from expressing his views in his own mother tongue if these views are supportive of Israel and critical of its neighbors rather than the other way around.  (Indeed, this view was explicitly expressed by SJP supporters during their conversation with this particular member of the Reservists on Duty.  He was shouted at that he “should not be allowed to use Arabic.”) 

Furthermore, SJP appears to take the position that “students of Arab backgrounds who would understand the … script” would necessarily find it “insulting.”  In SJP’s view, no Arab (or Arab–speaking) individual could possibly hold the view that “Israel is the only candle in a region of darkness.”  It is hard to imagine a more racist sentiment than assigning a particular viewpoint to a whole group of people based on nothing more than their ethnicity.  See Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1634 (2014) (“It cannot be entertained as a serious proposition that all individuals of the same race think alike.”); Miller v. Johnson, 515 U.S. 900, 914 (1995) (the “notion that members of the defined racial groups ascribe to certain … views” because of their race is “demeaning.”) 

Next, to the extent that the statement on the T–shirt was provocative and invited dispute and disagreement, it should be commended not condemned.  “[A] principal ‘function of free speech under our system of government is to invite dispute.  It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’”  Texas v. Johnson, 491 U.S. 397, 408–09 (1989) (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)).  Even assuming that all Arab–speakers would have found the T–shirt’s message to be “insulting,” that “insult” is an invitation to dispute in an open forum rather than “harassment.”

Finally, even if SJP were correct that the message on the T–shirt is “insulting,” and even assuming that it did not serve as an invitation to dispute, the SJP’s complaint would still be legally meaningless.  As the Supreme Court held just last month, “[g]iving offense is a viewpoint” and must be tolerated in the marketplace of ideas.  Matal v. Tam, No. 15-1293, 2017 WL 2621315, at *3 (U.S. June 19, 2017).  Members of the SJP certainly have a right to be offended by the T–shirt (or whatever else they wish to be offended by), but by the same token, Reservists on Duty have a constitutional right to give offense.  Couching the complaint in the language of “harassment” does not alter the analysis.  See Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d 703, 710 (9th Cir. 2010) (“We therefore doubt that … expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment”) (emphasis added).  As the Ninth Circuit, in which jurisdiction UCI is located, held, “standing on a soap box in a campus quadrangle and speaking to all within earshot” is at the very core of the constitutionally protected conduct and is not subject to being circumscribed by the invocation of anti–harassment statutes.  Id.

Second, the SJP letter claims that “[t]he IDF soldiers and their supporters intimidated students by filming their faces close-up, despite students’ objections, in order to disrupt the Mock Wall event and scare students from participating.”  Leaving aside the erroneous claim that Reservists on Duty are IDF soldiers, the complaint is once again legally meaningless.  “Audio and audiovisual recording are media of expression commonly used for the preservation and dissemination of information and ideas and thus are ‘included within the free speech and free press guaranty of the First and Fourteenth Amendments.’ … The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (quoting Burstyn v. Wilson, 343 U.S. 495, 502 (1952)).  That the students being recorded objected to the practice is of no consequence.  California law does not require consent to record any communication “made in a public gathering.”  Cal. Penal Code § 632(c).  It is black letter California law that “[p]hotographs are not actionable if they are fair and accurate depictions of the person and scene in question, even if they place the person in a less than flattering light.”  Aisenson v. ABC, 269 Cal. Rptr. 379, 387 (Ct. App. 1990).  The videos taken by the Reservists on Duty certainly don’t paint a flattering portrait of the SJP activists.  But the solution is not to complain about being videotaped, but to change the behavior depicted on the videotape.[1] 

The same analysis applies to SJP letter’s complaint that Reservists on Duty “threatened to report [the SJP] students to Canary Mission, a defamatory and McCarthyist blacklisting website that profiles students who are vocal for Palestinian rights, reports students to law enforcement, and harasses them online with the express purpose of ruining careers and reputations.” 

First, truthful information can never be defamatory.  See Draper v. Hellman Commercial Trust & Sav. Bank, 263 P. 240, 245 (Cal. 1928).  Second, even if the videotapes made by Reservists on Duty were somehow illegal (and they are not), their publication by Canary Mission or anyone else would be constitutionally protected.  See Bartnicki v. Vopper, 532 U.S. 514, 528 (2001); New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).  As the Bartnicki Court noted “[o]ne of the costs associated with participation in public affairs is an attendant loss of privacy.”  532 U.S. at 534.  The SJP students chose to engage in public on issues of public concern and importance, and in doing so have exposed themselves to the rough and tumble of public debate.  Third, even if the Canary Mission website were defamatory (and the SJP letter provides no evidence that it is), “[t]he fact that a defamatory statement may injure … reputation does not lessen the importance of ‘uninhibited, robust, and wide-open’ public discourse, nor should the protections afforded defamatory statements in the interests of providing a generous zone of lawful speech be abrogated….”  Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97, 106 (Cal. 1986) (quoting Sullivan, 403 U.S. at 270).[2]    

Finally, what the SJP letter describes as “repeated[] interrupt[ion] and commandeer[ing] conversations with students who approached the Wall to ask questions and learn,” is really a complaint about being unable to maintain a monopoly on speech in a public forum.  As the SJP letter acknowledges, “students [] approached the Wall to ask questions and learn.”  Learning, of course, can be accomplished only when the inquiring individual is exposed to a variety of viewpoints.  As the Supreme Court said, “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection.”  Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 603 (1967) (internal quotations omitted).  The Constitution guarantees SJP the right to speak, but not the right to exclude others from challenging or contradicting their views.  See Balaber-Strauss v. Town/Vill. of Harrison, 405 F. Supp. 2d 427, 434 (S.D.N.Y. 2005) (“The First Amendment affords [citizens] the right to speak, not the right to be believed or to exclude others from expressing contrary views.”).

Finally, The SSI and the Reservists on Duty categorically deny all other allegations in the SJP letter concerning alleged sexual or racial comments made to SJP students.[3]  SJP alleges that the Reservists on Duty “sexually harassed” members of the SJP.  One allegation is that “a male soldier told a male SJP member that he is ‘not a real man.’” Another one is that “[a] male soldier taunted a female demonstrating at the Wall in a sexually threatening tone, in Arabic, saying, ‘You want me to stick it in you, don’t you.’”  Again, these allegations are categorically denied.  Furthermore, the phrase “sexually threatening tone” is entirely devoid of meaning and SJP makes no attempt to explain what makes any tone “sexually threatening.”[4]  Given the misstatements, the outright falsehoods, and the lack of any evidence in support of these claims, the SJP’s allegations simply cannot be taken at face value.  

III.              

In making its baseless and scurrilous allegations, SJP is attempting to hide its own criminal and tortious actions.  Fortunately, their behavior is documented on video.[5]  For this reason, SJP’s own conduct should be addressed, since it is that conduct that has given rise to investigations by UCI and local law enforcement.

Perhaps the most egregious incident was an SJP–affiliated student spitting in the face of one of the Reservists on Duty.  This constitutes battery under California law.  Cal. Penal Code § 242; In re D.W., 186 Cal. Rptr. 3d 464, 475 (Cal. App. 2015).  It is not surprising that such behavior would result in investigation by law enforcement authorities and UCI.  See UCI Code of Student Conduct Handbook § 102.08 (specifying “[p]hysical abuse including but not limited to physical assault; threats of violence; or other conduct that threatens the health or safety of any person” as grounds for discipline); § 102.27 (specifying “[v]iolation of local, state, or federal laws” as grounds for discipline).

Next, SJP’s disruption of a Question and Answer session hosted by SSI and the Reservists on Duty was also in violation of UCI Code of Student Conduct.  See UCI Code of Student Conduct Handbook § 102.13 (“Obstruction or disruption of teaching, research, administration, disciplinary procedures, or other University activities.”).  The Question and Answer session hosted by SSI was an open event to which all university members (including those belonging to SJP were invited).  It was an opportunity for both supporters and opponents of the State of Israel and Zionism to ask questions and engage in a debate.  Neither the Reservists on Duty nor SSI have or ever had any objections to its political adversaries visiting their events and challenging the hosts on any issue (a stance unlike that taken by the SJP).  However, instead of taking an opportunity to engage, however forcefully, with SSI and the Reservists on Duty, the SJP tried to shout down and shut down the event.  The actions of Reservists on Duty that the SJP so bitterly complains about, allowed debate and engagement between opposing viewpoints, and provided an opportunity for those interested in the topic of Israeli–Palestinian relationship to educate themselves on the topic.  In contrast, the actions of SJP attempted to deny everyone an ability to converse, learn, and engage.  Such conduct is not only in violation of UCI Code of Conduct, but constitutes a criminal offense.  See Cal. Penal Code §§ 403 and 422.6(a). 

The UCI SJP chapter should know this better than anyone, given that just last year its members were prosecuted and convicted for violating § 403 of the Penal Code and the organization itself was issued a warning from the Office of the Vice Chancellor for Student Affairs.  One would have hoped that SJP would have internalized the required standards of behavior when encountering speakers with whom it disagrees.  But, that hope has gone unrealized.  Instead, SJP is claiming (without offering any legal support whatsoever) that punishing its supporters for their behavior during the Question and Answer session would constitute “viewpoint discrimination.”  Nothing could be further from the truth.  No one attempted to prohibit SJP from or to punish it for expressing its viewpoint.  Indeed, the viewpoint was a welcomed opportunity for the Reservists on Duty and their hosts to rebut SJP’s allegations and offer an alternative vision of the situation in the Middle East.  SJP was, however, not interested in engaging in conversation and instead sought to “willfully disturb[ and] break[] up [SSI’s] assembly” — an action in violation of Cal. Penal Code §§ 403.  Indeed, as is evident from the video footage, the SJP bragged about “shutting down” SSI’s forum.  See https://www.youtube.com/watch?v=u-0rztXKkBM.  This type of repeated contempt for the law and the University regulations simply cannot and should not go unpunished.    

IV.              

There is one issue on which SSI and SJP appear to be in agreement.  UCI does indeed have a legal obligation to protect its students.  However, and contrary to SJP’s view, this protection does not extend to shielding students from alternative points of view, no matter how upsetting.  See Snyder v. Phelps, 562 U.S. 443, 458 (2011) (“[S]peech [at a public place] cannot be restricted simply because it is upsetting or arouses contempt.”).  Nor does it include abridging of other students’ constitutional rights, including the right to receive, record, and disseminate information.  And finally, it does not include absolving students from responsibility for their violations of the penal law and/or UCI Code of Student Conduct on the basis that a violator may or may not be a “person of color.” 

Instead, UCI is responsible for enforcing its rules that are designed to protect learning through a robust exchange of ideas and to require behavior that does not transgress the penal law.  SJP and its supporters have repeatedly failed to adhere to these simple requirements.  Their attempt to now hide behind the “people of color” label to avoid responsibility for their unlawful actions is shameful and should not be tolerated.  Indeed, the SJP’s position that their students by virtue of their ethnicity should be subject to different rules is the epitome of racism and should be repugnant to any American. 

V.                 

In conclusion, we wish to express our appreciation for UCI’s actions so far.  The Administration has lived up to its obligation to protect a diversity of viewpoints on campus and ensure their presentation in a peaceful and safe environment.  It also appears to live up to its obligation to punish conduct that is unlawful and/or precludes frank and robust exchange of ideas.  However, the announced investigation of the UCI SSI chapter following the entirely unsubstantiated SJP allegations raises significant concerns.  While we understand that the University is obligated to investigate credible allegations of harassment, nothing in SJP’s complaint is credible or supported by any evidence.  We therefore call on the University administration to speedily conclude its investigation of SSI and to properly address SJP’s continued disregard of the California law and the University regulations.     

  It is our sincere hope that the UCI Administration will not be deterred from holding students and organizations that have consistently shown their disregard for the law and UCI policies accountable for their behavior, and we look forward to hearing about the conclusion and the outcome of the disciplinary processes. 

Sincerely,

Gregory Dolin

Associate Professor of Law

University of Baltimore School of Law