Chemerinsky: No One Has A Right To Protest In My Home

Following up on my previous posts (links below):  The Atlantic:  No One Has a Right to Protest in My Home, by Erwin Chemerinsky (Dean, UC-Berkeley; Google Scholar):

As a constitutional scholar and the dean of the UC Berkeley School of Law, I strongly defend the right to speak one’s mind in public forums. But the rancorous debate over the Israel-Hamas war seems to be blurring some people’s sense of which settings are public and which are not. Until recently, neither my wife—Catherine Fisk, a UC Berkeley law professor—nor I ever imagined a moment when our right to limit a protest at a dinner held at our own home would become the subject of any controversy.

Ever since I became a law-school dean, in 2008, the two of us have established a custom of inviting each class of first-year students over for a meal. ... The week before the dinners on April 9, 10, and 11, though, a group at Berkeley called Law Students for Justice in Palestine put a profoundly disturbing poster on social media and on bulletin boards in the law-school building. NO DINNER WITH ZIONIST CHEM WHILE GAZA SRAVES, the poster declared in large letters. (Students sometimes refer to me as “Chem.”) It also included a caricature of me holding a bloody knife and fork and with what appeared to be blood around my lips—an image that evokes the horrible anti-Semitic blood libel, in which Jews are accused of killing and cannibalizing gentile children.

The poster attacks me for no apparent reason other than that I am Jewish. The posters did not specify anything I personally had said or done wrong. The only stated request was that the University of California divest from Israel—a matter for the regents of the University of California, not the law school or even the Berkeley campus.

Several Jewish students and staff members told me that the posters offended them and asked me to have them removed. Even though their presence upset me too, I felt that I could not take them off bulletin boards at a public law school. Though appalling, they were speech protected by the First Amendment. ...

On April 9, about 60 students came to our home for dinner. Our guests were seated at tables in our backyard. Just as they began eating, I was stunned to see the leader of Law Students for Justice in Palestine—who was among the registered guests—stand up with a microphone that she had brought, go up the steps in the yard, and begin reading a speech about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop speaking and leave the premises. The protester continued. At one point, my wife attempted to take away her microphone. Repeatedly, we said to her: You are a guest in our home. Please leave.

The student insisted that she had free-speech rights. But our home is not a forum for free speech; it is our own property, and the First Amendment—which constrains the government’s power to encroach on speech on public property—does not apply at all to guests in private backyards. The dinner, which was meant to celebrate graduating students, was obviously disrupted. Even if we had held the dinner in the law-school building, no one would have had a constitutional right to disrupt the event. I have taught First Amendment law for 44 years, and as many other experts have confirmed, this is not a close question. ...

I have spent my career staunchly defending freedom of speech. As a dean, I have tried hard to create a warm, inclusive community. As I continue as dean of Berkeley Law, I will endeavor to heal the divisions in our community. We are not going to solve the problems of the Middle East in our law school, but we must be a place where we treat one another with respect and kindness.

Prior TaxProf Blog coverage:

• UC-Berkeley Law Faculty, Statement In Support Of Jewish Students (Oct. 11, 2022)
• Chronicle of Higher Education Op-Ed (Steven Lubet (Northwestern)), A Free-Speech Scandal at Berkeley Law (Oct. 17, 2022)
• Chronicle Of Higher Education Debate, Is UC-Berkeley Law School Discriminating Against Jews? (Oct. 28, 2022)
• San Francisco Chronicle, Complaint Alleges ‘Profound And Deep-Seated Anti-Semitic Discrimination’ At UC-Berkeley Law School (Dec. 14, 2022)
• New York Times, At UC-Berkeley Law, A Debate Over Zionism, Free Speech, And Campus Ideals (Dec. 22, 2022)
• Wall Street Journal Op-Ed (Steven Davidoff Solomon (UC-Berkeley)), Don’t Hire My Anti-Semitic Berkeley Law Students (Oct. 16, 2023)
• Los Angeles Times Op-Ed (Erwin Chemerinsky (Dean, UC-Berkeley)), Nothing Has Prepared Me For The Antisemitism I See On College Campuses Now (Oct. 31, 2023)
• New York Times Op-Ed (Israeli Dean And Palestinian Dean Of Top 25 Schools), Universities Should Condemn Massacre Of Israeli Civilians By Hamas As Terrorism And Vigorously Debate How To Secure The Safety Of Israelis And Palestinians (Nov. 26, 2023)
• New York Law Journal, Fall Out From Antisemitism At NYU And UC-Berkeley Law Schools (Nov. 29, 2023)
• Bloomberg Law, Law School Israel Protest Culture Is ‘Cancer,’ Eleventh Circuit Judge Says (Apr. 4, 2024)
• Washington Free Beacon, Anti-Israel Agitators Derail Dinner At Home Of UC Berkeley Law Dean Erwin Chemerinsky (Apr. 11, 2024)
• New York Times, More Commentary On Student Protest At Berkeley Law Dean Chemerinsky's Home (Apr. 16, 2024)