GLOBAL FRONTIER JUSTICE CENTER

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Dr. David J. Schmidly President University of New Mexico MSC05 3300 Scholes Hall - Suite 144 1 University of New Mexico Albuquerque, NM 87131 April 4, 2012 Dear President Schmidly: We write with concern relating to your investigation following the February 23 protests on your campus during a lecture by Ms. Nonie Darwish. As you are aware, Ms. Darwishs speech was severely disrupted by student hecklers. In so doing, the protesters denied Ms. Darwish the ability to speak freely and denied to the UNM Israel Alliance and the David Horowitz Freedom Center, the sponsors of the Darwish lecture, the ability to maintain their constitutionally protected associations. We urge the University to be sensitive to the constitutional and other legal implications of its investigations. Certainly student objectors have a right to protest a campus event. If the University were to deny them that right, its actions would likely be held unconstitutional. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); Snyder v. Phelps, 131 S. Ct. 1207 (2011). As a normative matter, we firmly believe that the students should have the right to protest. The right of students to speak freelyindeed, to experiment with ideasis celebrated and valuable. See Barenblatt v. United States, 360 U.S. 109, 144 (1959) (Black, J., dissenting); see also Bd. Regents U. Wisconsin Sys. v. Southworth, 529 U.S. 217, 232-33 (2000). Open discussion on a university campus is wonderful; we would like more of it. But the constitutional right to free speech does not include a right to prevent others from speaking. Quite to the contrary, protests that disrupt the peace or liberty of others are typically denied constitutional protection. Feiner v. New York, 340 US 315 (1951); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Frisby v. Schultz, 487 U.S. 474 (1998); see also Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011) (The [challenged] speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech.). That is precisely what the protesters did on February 23they thus did so without constitutional protection. Moreover, the speaker, audience, and the sponsoring organizations that the protesters interrupted do have protected constitutional rights. The leadership of the UNM Israel Alliance and the David

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Horowitz Freedom Center have free speech rights. As does Ms. Darwish, a United States citizen. And, importantly, the UNM Israel Alliance and the David Horowitz Freedom Center are constitutionally protected expressive associationsthey have a right to freely associate and express their views. Boy Scouts of America v. Dale, 530 U.S. 640 (2000). That right to expressive association includes the right to exclude others, including peaceful protesters, who wish to use the protected organization to communicate messages with which it does not agree. Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995). In other words, the sponsors of the Darwish talk have the constitutional right to deny even peaceful groups access to its meetings if those peaceful groups wish to use the meetings to communicate messages contrary to the sponsors interests. They would have been within their rights had they barred the protesters at the door and were within their rights upon attempting to expel the protesters from their meeting. Needless to say, the rights to expressive association are greater in the face of non-peaceful protests designed to actually prevent the protected organizations from expressing their views. In fact, disrupting a lawful meeting in the manner that the protesters did on February 23 might have been criminal. N.M. STAT. 30-13-1(B) provides that it is a misdemeanor to disturb any meeting of the people assembled for any legal object. The University, a state actor, must not do anything to infringe upon the associational rights of the UNM Israel Alliance or any other expressive association. Encouraging or knowingly permitting students to violate the constitutional rights of other students would likely amount to a civil rights violation on the part of the University. And, it would seem that prosecuting the victimsthose who were denied by their peers the constitutional right to associatewhile privileging the perpetrators is a potentially actionable move by the university to subvert the constitutional rights of an expressive association and its speakers. We understand that Robert Burford, the Universitys Student Conduct Officer, has charged Mr. Paul Chacho with violations of the Universitys code of conduct and has summonsed Mr. Chacho to a hearing. We do not claim any particular knowledge as to the events of February 23 or Mr. Chachos involvement. And we do not mean to suggest that the University lacks the rightindeed, it may have a dutyto investigate those events. But the University has a moral and constitutional duty to be fair to the presumptive victims here. Barring any serious wrongdoing on their part, Ms. Darwish and those attending her lecture, as well as the organizations that brought them together, should not be denied the right to communicate, advocate, and associate. Imposing civil penalties on Mr. Chacho without penalizing the protesters, who might have violated New Mexicos penal code, see N.M. STAT. 30-13-1(B), at least as harshly would have that effect. If the University does punish Mr. Chacho or other victims in this matter without adequate justification, not only will it open itself up to civil rights litigation, it will also embolden the hostile protesters who will show up and disrupt the next assembly with which they disagree. Indeed, the disruption of the Darwish lecture is part of a pattern sweeping across college campuses around the country. We are aware of numerous similar instances in which Muslim and anti-Israel student organizations have sought to monopolize the marketplace of ideas by denying

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their opponents the right to speak.1 In the name of free speech, of open discussion, and of education, we urge you to stand on the side of the silenced rather than on that of the silencers. Sincerely,

Kenneth A. Leitner, Esq. Director

Meir Katz Counsel

cc: Susana Martinez, Governor, State of New Mexico Gary King, Attorney General, State of New Mexico Kari Brandenburg, District Attorney for the Second Judicial District Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, U.S. Department of Justice

The following is a representative, but incomplete, list of examples: (1) A series of protests during Israel Apartheid Week in 2009 at York University (Toronto), New York University, the University of Rochester, San Jose State University, and others ([Link] (2) A 2009 speech by former Israeli Prime Minister Ehud Olmert at the University of Chicago interrupted by the Students for Justice in Palestine (SJP) ([Link] (3) A 2011 speech by six Members of the Knesset at Brandeis University interrupted by SJP ([Link] (4) A 2011 speech by Israeli Ambassador to the United States, Michael Oren, at UC Irvine interrupted by the Muslim Student Union ([Link] protesters were convicted for violating state criminal law ([Link] (5) A 2012 table display celebrating Israeli culture at the University of Western Ontario was blocked from view so that no one could see it by the student group Solidarity for Palestinian Human Rights and by Occupy London ([Link] (6) A 2012 speech by Israeli citizens at UC Davis interrupted by SJP and campus Muslim Student Associationthe speakers were asked: How many women/children have you raped? ([Link]