UC Berkeley dinner debacle sets off debate
UC Berkeley Law School Dean Erwin Chemerinsky is a scholar on constitutional law issues such as the First Amendment guarantee of free speech. Could he have violated that right when he and his wife, law professor Catherine Fisk, ordered a Palestinian protester to leave a dinner the couple was hosting for law students?
No, says Chemerinsky. “There is no First Amendment right to go into my house or yours and disturb a dinner, even if it is for students. The First Amendment does not apply on private property,” he told the Chronicle in an email.
But that may not be true in this case, said Camilo Pérez-Bustillo, executive director of the Bay Area chapter of the National Lawyers Guild.
“We’re talking about UC Berkeley, a state institution, publicly funded, where he’s dean, and an event conducted in his official capacity for graduating members of the third-year class,” he told the Chronicle. The protesting student, Pérez-Bustillo said, was making “an expression of dissent, at the core of free speech.”
The incident and the questions it has raised underscore how the war in Gaza has sowed division and debate in virtually every corner of public life.
Malak Afaneh, leader of Berkeley Law Students for Justice in Palestine and one of 60 students at the dinner Tuesday evening, stood in the couple’s backyard to denounce the university’s investments in manufacturers of weapons for Israel. According to the Bay Area Palestine Youth Movement, she had just spoken Arabic words meaning “peace and blessings to you” when Fisk grabbed her and tried to take away the microphone she was holding.
Chemerinsky said he and Fisk then told Afaneh to leave, and about 10 other students left with her. She has reportedly discussed plans to file suit, and if she does, the case could test the U.S. Supreme Court’s newly drawn boundary lines between government officials’ private and public conduct.
The court ruled last month on suits against local officials in San Diego County and Michigan who had blocked users from their Facebook and Twitter accounts after critical postings. The issue in both cases, and in a pending lawsuit against San Francisco Supervisor Dean Preston for blocking a conservative journalist from his social media account after a series of attacks, is whether the accountholders were acting as public officials or as private citizens.
In the court’s unanimous ruling, Justice Amy Barrett said an office-holder speaks on behalf of the government, and therefore must respect freedom of speech, when the official “possessed actual authority to speak on the (government’s) behalf, and purported to exercise that authority when he spoke on social media.”
Chemerinsky and Fisk were speaking in person, in their private home, in what Chemerinsky described as a private event for students who were about to graduate from the school where both of them taught. In a posting on his Original Jurisdiction legal blog, commentator David Lat agreed with the dean that the dinner was a private function and said Chemerinsky would have grounds to discipline the protesting students.
“Disrupting a university event and remaining on private property after being asked to leave … violate UC Berkeley rules and local laws,” Lat wrote.”You don’t need to be an authority on the First Amendment … to know that a private home is not a public forum.”
Stanford Law School professor Jud Campbell, who teaches First Amendment law, agreed. “Unless the hosts invited students to make speeches, a First Amendment claim would be entirely frivolous,” he told the Chronicle. “The Constitution doesn’t give anybody the right to commandeer a dinner party.”
And even if it was considered a government-sponsored dinner, “no one would have a First Amendment right to use a microphone to interfere with the general purpose of the event,” said Geoffrey Stone, a University of Chicago law professor and First Amendment scholar.
But Pérez-Bustillo of the National Lawyers Guild said the dinner was, at least arguably, an official event, “organized by the dean as part of or closely related to his functions as dean, for his students.”
And he said Chemerinsky could not have been surprised when the Palestinian student spoke out — as the dean said afterward, “The students responsible for this had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them.” Chemerinsky said in a statement Wednesday he replied that he would not change plans for the dinner and “assumed that any protest would not be disruptive.”
Zahra Billoo, Bay Area executive director of the Council on American-Islamic Relations, which is advising the protesting student, accused Chemerinsky of trying to silence protests of the university’s financial support of Israel’s military operations on Gaza.
“It is reprehensible for UC Berkeley to claim to champion free speech while its leaders commit such deplorable acts of physical censorship,” Billoo said in a statement.