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Arizona Students Arrested for Interrupting a Border Patrol Event Have Free Speech Rights, Too

"There is simply not enough information...to confirm that the protestors' conduct, taken as a whole, constituted unprotected disruption."

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Arizona
Screenshot via Lone Conservative

As I reported late last week, two University of Arizona students were charged with interfering in "the peaceful conduct of an educational institution" after they interrupted a student-run event featuring border patrol officers. It's a complicated situation that prompts free speech concerns on all sides.

The incident took place on March 19 inside the Modern Languages building, where the border patrol officers "were presenting at a student club," a spokesperson for the university tells Reason.

The disrupters—two female students—shouted at the border patrol officers from outside the classroom, and later moved inside. The encounter was partly, but not entirely, captured on video: The women can be seen yelling at the cops and daring the event's student-organizers to call the cops on them. When the border patrol officers leave, the hecklers follow them out the building and yell "murder patrol" at them.

But protesting against agents of the state is not illegal. On the contrary, it is fully protected by the First Amendment. So the question becomes this: Did the students merely heckle the officers, or was their anti-cop activism so disruptive that the event could not continue?

As the Foundation for Individual Rights in Education pointed out, the available video footage is not comprehensive enough to make a judgment one way or the other. FIRE's statement represents my own views on the subject so exactly that I will reproduce it at length:

As a public institution, the University of Arizona is fully bound by the First Amendment. The First Amendment protects the right of public college students to engage in peaceful protest. This right protects student speech that listeners may find deeply offensive. Taken alone, the content of the speech at issue here — calling Border Patrol agents "murder patrol" and "an extension of the KKK," for example — is plainly protected by the First Amendment. Likewise, the call by a Border Patrol agent (with considerable political influence) to investigate and punish students for a letter criticizing the Border Patrol is a clear demand that the university violate the First Amendment.

The First Amendment also protects the right of public college students to hear from the speakers of their choice free from the heckler's veto. Attempts to prevent a speaker from being seen and heard by an audience are not protected by the First Amendment. However, as FIRE has previously stated, isolated heckling, fleeting disruption, or other expressive activity that does not prevent audience members from seeing and hearing the speaker is generally permissible.

There is simply not enough information in the brief videos that have so far been made public to confirm that the protestors' conduct, taken as a whole, constituted unprotected disruption. Video recordings capturing some of the incident appear to place the protesting students near the doorway but outside of the room, show the students refusing to leave, and indicate that the students and Border Patrol agents inside of the room noticed the demonstration. Although the student hosts of the event call law enforcement (saying that they did so because one demonstrator said the presence of the Border Patrol agents made her fear for her safety), there is no indication that the event was unable to proceed. When the Border Patrol officers leave, they are followed down a short hallway and into a garage by student protesters.

These facts present a close call between competing First Amendment interests. In such a situation, criminal prosecution is a heavy hammer. First Amendment jurisprudence recognizes that freedom of expression requires "breathing room"; filing criminal charges against students for campus speech that may be protected by the First Amendment will chill protected student speech. Students will rationally decide to self-censor rather than risk the possibility of criminal charges.

There is an important difference between conduct intended and designed to prevent others from expressive activity and protest which may incidentally impact or frustrate others' expression. This may sometimes be a difficult line to draw, but close questions regarding student First Amendment rights are rarely best answered through criminal charges. Likewise, the University of Arizona — the policies of which earn FIRE's highest, "green light" rating — must be mindful of its First Amendment obligations in reviewing the possibility of student conduct charges for potentially protected speech.

The government now bears the burden of demonstrating that the protest was unprotected conduct and that it meets the definition of the statute under which the students are charged. Criminal and conduct charges always warrant scrutiny, and scrutiny is justified here: Law enforcement officers are the target of the protests and there has been significant public pressure on the university to act.

FIRE will continue to monitor the situation closely.

Public universities have an obligation to make sure that students are able to enjoy the benefits of the free speech rights to which they are entitled. Frederick Douglass once observed that censorship is a "double wrong," in that it harms the speaker as well as those who wanted to listen.

At the same time, activists clearly have the right to object to the speakers—to protest them and challenge them. Arresting students for exercising these rights seems bound to create a chilling effect and strikes me as going much too far. It is one thing to bring charges against students who violently disrupt speakers. It's quite another to put them in legal jeopardy for merely shouting at cops from outside the door.

The two students have a court appearance scheduled for April 22, and the university police department is "continuing its investigation into the incident," a spokesperson says.

Unless more compelling evidence emerges that the hecklers' behavior very clearly crossed the line, I'd rather see this matter handled differently.