Berkeley Dean Erwin Chemerinsky and his law professor wife Catherine Fisk hosted a dinner for graduating law students at their home this week and the rest of us were all unintentionally invited when a video went viral of Fisk trying to eject a protesting student, Berkeley Law Students for Justice in Palestine leader Malak Afaneh, while Chemerinsky tried to explain that this was his home.
From the dean’s statement about the incident:
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.
The “this” in question was a poster created about the dinners that said, “No dinner with Zionist Chem while Gaza starves.” The poster as a whole is… pretty antisemitic. Still, Chemerinsky did not take action over the posters because he felt the group members were within their First Amendment rights. This understanding of the line between what IS and IS NOT a protected exercise of free speech is going to come up again!
Chemerinsky has navigated that line far more deftly than some of his fellow law school deans. When a number of Berkeley student groups announced that they would no longer invite Zionist speakers and kicked off a round of right-wing outrage, Chemerinsky came out defending the right of student groups to exclude speakers based upon their views while also enforcing reasonable time, place, and manner restrictions to allow protest without disrupting groups who invited opposing speakers.
[UPDATE: Which is not to say that he hasn’t faced criticism of his handling of past controversies. A statement by a number of current Jewish Berkeley Law students who support Afaneh’s protest wrote Above the Law to point out that the stance Chemerinsky took with the Times that groups had a right to exclude speakers based upon their views would then risk losing campus affiliation, funding, and resources. That would smack of viewpoint discrimination and is no different than — to use Chemerinsky’s example from the Times piece — penalizing a Black student group for refusing to invite white supremacists to speak.]
So when Chemerinsky writes that he assumed the protest would not be disruptive, he likely and reasonably assumed a bunch of students would show up to picket outside the house which would be an inconvenience, but exactly the sort of inconvenience that a free society accepts.
It did not go down that way.
That’s… not how any of this works. You don’t have a First Amendment right to go into someone else’s house and hold a protest just because they work for a public university. The protesters can’t even rely on the questionable argument that a dean’s house is public property, because Chemerinsky and Fisk don’t live in university provided housing.
There are also rumblings online about Fisk “assaulting” Afaneh. Folks, California still has a friggin’ Castle Doctrine, so I don’t think “homeowner tried to wrestle the microphone from me” is going to get very far.
So, no, there is no First Amendment right to protest on someone’s private property. As Chemerinsky correctly notes in his statement, “my home is not a forum for free speech.”
And, hey, if you feel protesting in someone’s backyard is a form of civil disobedience, that’s cool and all, but the thing about civil disobedience that gets glossed over all the time is that it’s still illegal. You’re doing something that you know is against the law and accepting that those consequences become the protest and bank on the idea that the public will see the penalty as unjust.
Chemerinsky notes that future disruptions “will be reported to student conduct and a violation of the student conduct code is reported to the Bar.” If folks want to make a character and fitness rejection their form of protest, that’s a strategy but the First Amendment — and vague allegations of “assault” — aren’t justifications to protect them.
Unfortunately, you can find the roots of this altercation in the ongoing assault upon the “right to protest” fueled by bad faith actors. When Jonathan Turley bemoans private companies refusing to advertise with Elon Musk or Judge James Ho demands schools punish students picketing a leader of a recognized hate group, they articulate a vision of “free speech” morphed into an authoritarian top-down command. Free speech, for them, is the right of the powerful — whoever is granted a forum by the privileged — to say whatever they want without interruption, critique, or protest. Dissent becomes the REAL threat to “free speech.”
When schools — or any institution — go down the road of penalizing the traditional exercise of the right to protest, they just bulldoze the line between proper and improper exercise. If protesters start getting punished for picketing outside, they’re not going to see much difference between doing that and heading right on in.
Then folks won’t feel they have much to lose disrupting a private home.
And to go one further, if we don’t push back as cynical voices call for all dissent to get continually pressed to the unheard fringes, protesters will start to see no other choice than to bring the protest into private places.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer.
