The decision of San Diego District Attorney Bonnie Dumanis not to prosecute a quartet of Occupy hecklers at Mayor Jerry Sanders’s State of the City speech recently contrasts with Orange County D.A. Tony Rackauckas’s successful prosecution of a group of Muslim students who persistently interrupted a speech by the Israeli ambassador to the U.S. at UC Irvine two years ago. Some Muslims (and others) might assume that the disparate treatment was a matter of simple bigotry, but the more likely explanation is one of small but telling differences.

First, the impact of the San Diego four momentarily interrupted but did not disrupt the Mayor’s speech to any serious degree. It was brief and with so few involved in the shouting, could not compete with the dominant public address system in the relatively huge and packed Balboa Theatre.  At the Irvine speech, by pre-arrangement, the students arose to make their statements one by one whenever the ambassador resumed his comments; the effect was much more prolonged.

Second, the police reaction in San Diego was legally and politically maladroit.  While Rackauckas in Orange County prosecuted the students for misdemeanor conspiracy—an unprecedented move in this context that drew considerable criticism of being overkill, the police in San Diego charged their four culprits with felony conspiracy to disturb the peace.  As one observer noted, that was an interesting move in light of misdemeanor conspiracy to obstruct justice charges brought against a San Diego deputy district attorney and a San Diego police officer for allegedly arranging to have the latter fix (actually destroy) a traffic ticket issued against the former.

Third, the California Supreme Court has held that the crime of disrupting a public meeting cannot, under the First Amendment, be applied to heckling a politician making a political speech, whereas it can be used against those who persistently interrupt the kind of governmental or other public meetings where there are fixed expectations of order and decorum.  As to the former setting, the court stated:

Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment. For many citizens such participation in public meetings, whether supportive or critical of the speaker, may constitute the only manner in which they can express their views to a large number of people; the Constitution does not require that the effective expression of ideas be restricted to rigid and predetermined patterns.

In re Kay, 1 Cal.3d 930 (1970). But in the latter setting, the court stated:

Under most circumstances, of course, ordinary good taste and decorum would dictate that a person addressing a meeting not be interrupted or otherwise disturbed. The Constitution does not require that any person, however lofty his motives, be permitted to obstruct the convention or continuation of a meeting without regard to the implicit customs and usage or explicit rules governing its conduct. . . The constitutional guarantees of the free exercise of religious opinion, and of the rights of the people peaceably to assemble and petition for a redress of grievances, would be worth little if outsiders could disrupt and prevent such a meeting in disregard of the customs and rules applicable to it.

In re Kay thus would have almost certainly prevented even a misdemeanor prosecution of the San Diego “Mic check” chanters, but it was of little comfort to the Irvine students who clearly were prepared not only to needle or annoy a speaker in an academic setting with settled standards of civility toward guests of the university, but to shut him down altogether.

The Irvine students should not have been prosecuted for conspiracy.  They and their organization had already been disciplined by the university to a degree that probably would have been effective to dissuade a repetition. But the fact that the San Diego Occupy party was not prosecuted should not be taken as evidence of unlawful discrimination.  One D.A.’s overreaction does not demand repetition by another.