Falsely claiming a First Amendment right at a dinner party at private home — FAN 419.1

It is with some regret that I feel obligated to openly condemn the actions of a few students who felt they could commit wrongs by asserting a counterfeit First Amendment right to do so. These wrongs were justified in the name of the suffering of the innocent victims in Gaza. Worse still, this unjustified malice was directed at one of the nation’s leading defenders of free speech and human rights, Dean Erwin Chemerinsky. Rather than attempting to describe the actions of these horribly misguided students, I will let the video record speak for itself.

View video

Before I proceed further, let me say that I was horrified by the savage attack waged by Hamas on Israeli innocents. There is no middle ground here, just murderous evil. That said, the Israeli war waged by the Netanyahu government against innocents in Gaza is unconscionable in ways deserving of strong condemnation and protest. (The Netanyahu war is also inviting a degree of anti-Semitism not seen in recent years.)

It is against that backdrop that I feel must speak out against those who acted unjustly and did so as if the First Amendment afforded them license to do so. It does not!

The dinner event for a group of students was held at the home of Dean Chemerisky and his wife, professor Catherine Fisk. To state the obvious: There is no right to speak on private property without permission.

But since a First Amendment right was asserted, let me tease that out by way of giving the protestors the benefit of a dollop of hypothetical doubt:

Let us assume that the Dean’s dinner was paid for by the law school (just hypothetically). And let us assume that in that sense it might be viewed as a school event. How does that affect the constitutional calculus?

Consider Eugene Volokh’s answer:

“[M]uch government property is a ‘nonpublic forum’ — a place where some members of the public are invited, but which is ‘. . . not by tradition or designation a forum for public communication’ (Minnesota Voters Alliance v. Mansky, 2018).”

Let us also assume (and I’m stretching it here) that one might go a big step further and argue that these otherwise private premises were a “limited public forum.” Even so, time, place, and manner restrictions would be permissible. Having students over for dinner does not mean that “public speech” of whatever kind is permitted. What if someone started shouting “Trump is a criminal” or “impeach Biden”? Surely, such speech could be prohibited in a private home setting.

Moreover, whatever the legitimacy of any such alleged right, it would end once the protesters were asked to leave — and they were asked repeatedly. 

At that point, if not sooner, they were trespassers. If an officer were on the scene, he or she could compel them to leave under threat of arrest.

Then there is the matter of civil disobedience of the kind waged by civil rights protestors. That’s all well and good — but the moral currency of such disobedience is the willingness to accept the legal consequences for one’s unlawful acts. By that moral measure, and consistent with the applicable rules, these students might well be candidates for disciplinary action. To act as uncivilly as they did and then assert some bogus right to do so is cowardly, and encourages others to do likewise.

I applaud Dean Chemerinsky for not yielding to those who tried to prevent him from holding this gracious event at his home for students. And more power to Dean Chemerinsky and professor Fisk for being willing to open up their home to yet other students in the days that followed this event.

The moral of the story here is this: The First Amendment is a shield against government suppression. It is not an ax to swing at compassionate and freedom-loving people in their own homes.

Set out below is a statement by Dean Chemerinsky, followed by one by FIRE, with which I agree.

Related

• David Lat, “A Tale of Two Protests: UVA v. Berkeley Law,” Original Jurisdiction (April 11)
• Eugene Volokh, “Students Don't Have a Right to Use Public University Social Events for Their Own Political Orations,” The Volokh Conspiracy (April 11)
• Koh Ewe, “Law Student Protests at Dean’s House: How Experts and Advocates Are Reacting,” Time (April 12)

The dean speaks out

• Erwin Chemerinsky, “Statement from Dean Erwin Chemerinsky,” Berkeley Law (April 10)

I write this with profound sadness. Since I became a dean, my wife and I have invited the first-year students to our home for dinner. We were asked this year by the presidents of the third year class to have the graduating students over for dinner because they began in Fall 2021 when COVID prevented us from having dinners for them. We were delighted to oblige and designated three nights — April 9, 10, 11 — that graduating students could choose among. I never imagined that something that we do to help our community would become ugly and divisive.

Last week, there was an awful poster, on social media and bulletin boards in the law school building, of a caricature of me holding a bloody knife and fork, with the words in large letters, “No dinner with Zionist Chem while Gaza starves.” I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment. But I was upset that those in our community had to see this disturbing, antisemitic poster around the law school.

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. I was sad to hear this, but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.

On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.

The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

I have spent my career staunchly defending freedom of speech. I have spent my years as dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner.

Erwin

Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law

Statement from FIRE

It is increasingly common for college students to claim that disrupting or taking over someone else’s event is their First Amendment right.

They are wrong.

During a dinner hosted for UC Berkeley law students on Tuesday night at the home of the school’s dean, Erwin Chemerinsky, a student stood up with a microphone and began a pro-Palestinian protest.

Chemerinksy and his wife immediately asked her to leave. The student refused, claiming it was her "First Amendment right."

But the First Amendment doesn’t protect disrupting events at people’s homes — and a UC Berkeley law student should know that.

Disrupting someone else's event is antithetical to free speech, and it’s been happening way too often on college campuses — including at Stanford Law School with Judge Kyle Duncan, a "Free Speech on Campus" event at SUNY Albany, and even during a lecture about black holes.

Protesters have every right to engage in peaceful, non-disruptive protest. But they do not have the right to go onto someone else's property and disturb their event.

It’s time students learn this critical lesson.

A good first step? We'd encourage UC Berkeley to consider adopting FIRE's Free Speech Orientation program.

Previous regularly scheduled FAN

FAN 419: “Fueling the FIRE: Responses to Richard Hasen on how the government should identify professional journalists for access and protection.”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of Mr. Collins.