Erwin Chemerinsky, dean of UC Berkeley Law since 2017, was formerly dean of law at UC Irvine and, for two decades, a professor at the University of Southern California. He’s a noted constitutional law scholar and a widely admired expert on the First Amendment.
Chemerinsky has been disheartened at some speech from his own law students over the past year, but has been firm in defending their First Amendment right to say it.
In the spring, he was personally dragged into the turmoil on campus related to the Israel-Hamas war. Students called for a boycott of a dinner he and his wife were hosting for law students in their Oakland Hills home, labeling him a Zionist and creating an antisemitic poster that included a cartoon drawing of him holding blood-covered utensils. Then, at the dinner itself, a pro-Palestinian student disrupted the event.
Chemerinsky spoke to J. on Oct. 10. The conversation has been edited for length and clarity.
J.: A lot of strong feelings have been expressed on campus this past year. What’s the most important thing for the general public to understand about speech, and free speech, on campus?
Erwin Chemerinsky: The most important thing people don’t understand is that the campus can’t stop the expression of any views. People have the right to express whatever views they want, however offensive they may be. A campus can’t stop expression of racist views, antisemitic views or Islamophobic views without violating the First Amendment.
I get so many emails from people saying, “How can you let people say that?” Under the First Amendment, you can’t stop them from saying it.
Lots of speech upsets people. If anything that upset people could be stopped, there’d be no end to the censorship of speech.
When does it cross the line?
If it meets the legal test for true threat or for incitement, it can certainly be punished.
If you can show that somebody reasonably fears threat to their physical safety, then that’s not speech protected by the First Amendment.
One of the most common things I hear from students when they’re upset is “I feel unsafe.” But the fact that you feel unsafe doesn’t mean that it’s a threat.
If the speech is likely to cause imminent illegal activity, and if the speech is directed at causing imminent illegal activity, then it’s incitement.
The expression of an idea by itself isn’t incitement. I find the celebration of what Hamas did on Oct. 7 repugnant, but people have the right to say it. And that’s the misunderstanding.
What about when there’s disruption, like the recent occasion when a talk at Berkeley Law by Knesset member Simcha Rothman, a key architect of judicial reform in Israel, had to be moved to Zoom?
There is no First Amendment right to disrupt the speaker. If we have a speaker here and students disrupt that speaker, I’ve made it clear we can punish the students who do that.
Now practically, there may be a challenge. How do we carry this out? Do you have the police drag out the protesters so that the speaker can go on? And that’s a practical question.
Take our commencement last May, where there was a group of pro-Palestinian people chanting. They had no right to do that, but if we were to physically carry out 20 people — first, we didn’t have the police to do that. And second, if we would, it would create such a disturbance the event couldn’t go forward anyway.
Explain how campuses can enforce limits on how protests are carried out.
Campuses always have had, and can have, “time, place and manner” restrictions. That’s true of any government property with regard to speech. The rule, as it’s articulated by the Supreme Court, is there can be time, place and manner restrictions so long as they’re content-neutral, serve an important purpose and leave adequate alternative places for communication.
You can’t say, “Well, we’re going to allow this viewpoint to be expressed, but not that viewpoint.” You’ve got to have some other place that you can speak.
A lot of campuses adopted new time, place, manner restrictions after last spring, like prohibiting encampments. They can do that.
I think one thing that people don’t realize is there’s this difference between what the First Amendment allows the campus to do, and what the campus may decide is prudent to do.
You’re an expert on these topics. Did you imagine you’d be drawn into the issues so personally, especially last spring when a student protester disrupted a dinner for students at your home and refused to leave?
I knew that by being dean at Berkeley, I would have to deal with free speech issues — it’s Berkeley. I certainly couldn’t have imagined what they would have been. And what happened in my backyard on April 9? No, I couldn’t have imagined that happening.
How did you feel in the aftermath of the protest?
Every aspect of it was awful. It’s hard to describe how upsetting that was because of how blatantly antisemitic it was. You know, “Boycott Zionist Chem.” It’s not for anything that I’ve said or done. It’s just for being Jewish. And then to come and target my house in that way.
It’s horrible to go through it becoming viral in the way that it did. We got so many death threats and so much hate. We had to stop answering the phone in the office for several days.
All we did was have a dinner for graduating students, and the only reason we were targeted was being Jewish.
Under California law, [then-law student Malak Afaneh] was a trespasser, and we had the right to ask her to leave. She had no First Amendment right to disrupt the event.
In the past you’ve done a dinner for incoming law students. Did that happen this semester?
We didn’t do dinners this fall. As long as I’ve been dean, we’ve done dinners, but I was much too afraid that there would be protests at them. August was just too soon, and what happened was too much.
It was a hard decision. But I’m hopeful that we’ll do dinners for the entering students from this year in April.
How has campus been since classes started in August?
This fall has been, except for the incident [with Simcha Rothman], a much quieter fall within the law school and on campus. I think it’s been quieter across the country.
The one thing that I find troubling is I do think that those who are defending the Palestinian position are doing so in a much more militant way, defending Hamas in a way that I find shocking and difficult.
But people have to recognize that the campus can’t stop expression of views on the grounds that they’re offensive. There’s a human tendency, I think, to want to stop the speech we don’t like. I wish we lived in a world without antisemitic speech or racist speech, but we don’t.