Isn’t This An Overreaction?

BY HANK REICHMAN

The following is from the November 22 edition of the Riverside Press-Enterprise:

A U[niversity of] C[alifornia] Riverside student seen in a viral video grabbing a fellow student’s pro-Trump hat has been charged with misdemeanor grand theft.

The charge against Edith Macias was filed Nov. 3, and a warrant for her arrest was granted Nov. 13, court records show. She has not yet been detained or entered a plea.

The statute under which she was charged says grand theft applies when property is taken off somebody’s body.

The incident happened Sept. 27 at a training event for student organizations at UCR. Student Matthew Lawrence Vitale wore a red baseball cap with President Donald Trump’s slogan “Make America Great Again.”

Several videos of what happened were posted online, though some have since been taken down. One shows Macias grabbing the hat off Vitale’s head and running out of the room.

Vitale himself began filming as Macias brought the hat into the Student Life office and asked staff whether the hat should be allowed on campus. “This represents genocide,” Macias says in the video.

Vitale counters that that freedom of speech allows him to wear the hat and that he wants his property back.

Macias eventually gives university officials the hat. The 9-minute video ends as two men in what appear to be UCR police uniforms enter the office. . . .

At the time of the incident, UC Riverside spokesman John Warren said the university was talking to both students and offering assistance in dealing with the situation.

Let’s acknowledge that Vitale was correct: he has every right under the First Amendment and undoubtedly university policy to wear his MAGA hat on campus and to any meetings or classes where headwear is not prohibited.  (I’m old enough to remember when it was deemed impolite — for men at least — to wear a hat, any hat, indoors.)  And let’s acknowledge that Macias’s response was not the best one; much better to have begun a dialogue with Vitale and others about the significance she saw in the hat’s slogan.

But let’s also acknowledge that to file charges of grand theft in this case is not only ridiculous but potentially dangerous.  It threatens to smear Macias, who is after all a young student, for life and, even worse, may set an excessively restrictive standard for how to deal with conflicts over speech that could chill the rights of all on campus.  According to this account Macias yielded the hat in less than 10 minutes and one must assume that university officials returned it to Vitale, who I suspect put it back on his head.  What harm was actually done then?  Wouldn’t it have been better to invite discussion of the incident rather than calling in law enforcement?  And what if Macias had, instead of grabbing the hat, simply demanded that Vitale remove it in her presence?  Or if she had just screamed at him for ten minutes about what she saw as the genocidal racism of the slogan?  Wouldn’t she too have had First Amendment rights?

It’s unclear who pressed charges.  Was it Vitale himself, the university, or the Riverside police on their own?  Whoever did so certainly demonstrated not only an excessively vindictive approach to conflict and an overly rigid notion of free speech, but also a clear disregard for the public interest, since, after all, aren’t the courts already overburdened with enough real crime?  Don’t prosecutors, judges, and juries have enough work to keep them busy in Riverside County?

Some years ago at another southern California UC campus, UC Irvine, ten students were disciplined for seeking to prevent the Israeli ambassador from speaking, a clear exercise of “the heckler’s veto” and a violation of the First Amendment.  Then-Irvine law dean Erwin Chemerinsky (now at UC Berkeley) noted in an op-ed at the time that “Freedom of speech, on campuses and elsewhere, is rendered meaningless if speakers can be shouted down by those who disagree. . . . There is simply no First Amendment right to go into an auditorium and prevent a speaker from being heard, no matter who the speaker is or how strongly one disagrees with his or her message.”  Presumably there is also no First Amendment right to grab someone’s hat just because you find the message on the hat offensive.

But when the local district attorney filed criminal charges against the “Irvine Ten” Chemerinsky also wrote another op-ed which said this: “the fact that conduct violates a law does not mean that it should be prosecuted.  Prosecutors, state and federal, constantly make choices about which crimes to prosecute. . . .  The students acted wrongly, and they were punished by the campus; there was no need for anything more.”

In that case the students were convicted of a misdemeanor and must now go through life with that conviction on their records.  For Chemerinsky this wasn’t justice — and he was right.  So surely in this Riverside case too justice will hardly be served by prosecuting a college student for grand theft simply because she grabbed — but ultimately returned — a cheap hat for a few minutes.  To do so is sheer insanity.

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