Erwin Chemerinsky, Dean of California Berkeley School of Law, on Campus Speech

Published: June 25.

Headshot of Erwin Chemerinsky. Photo courtesy of Berkeley Law.

Erwin Chemerinsky, longtime constitutional scholar and dean of the University of California, Berkeley School of Law, is an ardent defender of free speech. He co-published “Free Speech on Campus” in 2017, which discussed the importance of freedom of expression within a diverse student population; appeared as a guest speaker on several campuses to discuss free speech, hate speech and censorship; and has written for dozens of publications exploring the First Amendment.

But earlier this year, Chemerinsky, who is Jewish, found himself the target of protests, as pro-Palestinian student activists disrupted an event at his home in Oakland. Videos of the protest went viral, making national headlines. But despite some personal attacks, Chemerinsky remains steadfast in defending the First Amendment.

Since Hamas’ attack on Israel on Oct. 7, colleges and universities nationwide have been embroiled in conflict, with the demonstrations from pro-Palestininan and pro-Israeli groups bringing tensions on campus to new heights. More than 3,500 people have been arrested on college and university campuses since April 18, when Columbia University students set up the first encampment in the country, kickstarting a national movement.

UC Berkeley was home to one of the largest encampments in the country. At least 12 students were arrested on the campus in mid-May after police raided a building occupied by protesters. The encampment was dismantled by students on May 14 following negotiations with the university.

In an interview with First Amendment Watch, Chemerinsky explained why the protest at his home was not protected expression but other, personal, even anti-Semitic attacks against him were protected under the First Amendment.

Editor’s note: This interview has been edited and condensed for length and clarity.

FAW: The protest at your home in early April sparked nationwide coverage and conversations about students’ understanding of the First Amendment right to protest and its limits. In terms of the protest at your home, these were law students who would be expected to understand basic First Amendment principles. So were there other factors at play here?

EC: To be clear, there’s no First Amendment right to protest at our home. Even if this event had been at the law school, there’s no First Amendment right to disrupt that event. So if we were holding a dinner in the law school, which we’ve done with Supreme Court justices, students couldn’t come in and disrupt that dinner and protest. They don’t get more First Amendment rights because it’s in our backyard. It’s our house, it’s private property. Under California law, once we asked them to leave, they were trespassers, and there’s certainly no First Amendment right to do what they did. I don’t know that it was a lack of understanding of the First Amendment that led them to do what they did. They believed they had a righteous cause, and they were going to disrupt the dinner in our backyard. I think we could do a much better job of educating students at all levels with regard to the First Amendment. But I’m not sure that this was about a lack of understanding of the First Amendment. I think this was their desire to disrupt the dinner.

FAW: Students at Stanford Law School shouted down a federal appeals court judge who appeared at a school Federalist Society event on campus in March 2023. Even beyond understanding the heckler’s veto, it is central to a lawyer’s job to engage respectfully with people who have a very different viewpoint. Why is this happening? Is legal education even at the nation’s elite institutions failing to convey some basic values of civil engagement? If so, what can be done about it?

EC: I think it has to be made clear to students that there’s no First Amendment right to use speech to silence others. There’s no First Amendment right to disrupt activities. I send a message about free speech policy to the entire law school every year, and I emphasize that there’s a right to express all ideas and views, but there’s never a right to use speech to silence others, to disrupt activities. I’ve heard students say that, “Well, you have the right if you’re speaking to disrupt others,” or I’ve heard people say there was a First Amendment right to protest in our backyard. Of course, that’s not right. So I think in part, we need to do a better job of educating students in high school, college, and law school. But I also think, in part, it’s not a lack of knowledge of the First Amendment, it’s a desire on their part to engage in protest, even if it’s not protected by the First Amendment.

Protests continue at Columbia University in New York during the ongoing conflict between Israel and the Palestinian Islamist group Hamas

College students protest on University of Michigan campus

Protest encampment at University Yard in support of Palestinians in Gaza

FAW: Do you think there is a misunderstanding among students regarding the cultural and legal definitions of “free speech”?

EC: Yes, I do think that. And, as I’ve said, there are times when I’ve heard students say, “Well, because we’re engaged in speech, we have the right to shout down somebody,” and that’s not true. I heard some say that, since the event at my house was a school activity, they had the right to engage in speech disrupting the activity. Of course, that’s not true. So, yes, I think there’s a lack of understanding, but I also think that there’s a sense that even though they know they don’t have the right to do it, they’re going to do it anyway. The encampments that existed on campuses were not protected by the First Amendment, and I think a lot of the students who engaged in them knew that, but they were going to do it anyway.

FAW: What are your thoughts on the state of free speech on college campuses? What First Amendment concerns have arisen from the campus protests that may not have been at the forefront before demonstrations began?

EC: I tend to look at issues with regard to free speech on campus from a First Amendment lens. I’ve been teaching and writing about the First Amendment for decades, but the issues on campus in April and May were much more about what was prudent and politically desirable for campus officials to do, rather than about the First Amendment. There’s no doubt that the encampments violated constitutionally permissible time, place and manner restrictions. Campus officials could clear the encampments without there being a First Amendment issue. When there were disruptions at commencements like our law school commencement, we had, without any violation of First Amendment, the ability to remove the demonstrators if we wanted to. So it wasn’t a First Amendment question. It was a question of what’s prudent and politically desirable to do. Campus administrators have the right to clear the encampments under the First Amendment, but whether they should do it and how they should do it is a very different question.

FAW: Do you think campus officials handled the protests properly? Do you think they could have done anything differently?

EC: It’s difficult to generalize, because campus officials handled it so differently across the country, and in some instances, it went well, in some instances, it went poorly. I think it’s important now to articulate what criteria should guide how campus officials do this. These are things like, how much is the encampment or the protest disrupting campus activities, like commencement or the educational activities or the research activities at campus? How much were the encampments leading to the harassment of students? What was the risk of violence from the encampments? What’s been past practice, and what precedent does this set for this future? If the encampments were cleared, did it require the use of police, and what would be the consequences of that? What about student discipline? All of these were the considerations that should have been the basis for decisions.

FAW: Do you think that, with officials looking at the situation retrospectively for upcoming semesters, there will be more guidelines on campuses across the country to better equip them to handle situations of this nature?

EC: Yes. I also think that campuses need to draw a distinction between criminal activity and violation of school rules. Once it becomes criminal activity — vandalism, destruction of property, occupation of buildings — it’s a very different thing, and I think that campuses will be more attentive to that distinction going forward.

FAW: In defense of the First Amendment, you allowed posters to remain up on campus that personally targeted you, stating “No Dinner With Zionist Chem While Gaza Starves” with a depiction of you holding a bloody knife and fork. Was this difficult? Did you receive any backlash from students?

EC: Yes, to answer all of your questions. Yes, it was difficult to let the posters remain up, and they were on every bulletin board and multiple copies on bullet boards. I found the posters to be awful, anti-Semitic, and yet, I believed that it was protected speech under the First Amendment. I couldn’t take them down without violating the First Amendment. Yes, I received complaints from staff members and from students, especially from Jewish staff members, Jewish students. One staff member wrote to me and said it made them feel unsafe to be in the building and to see the posters. I got complaints that they were anti-Semitic and that we should take them down, but I thought under the First Amendment that I couldn’t do that. Of course, the students have absolutely the right to express pro-Palestinian sentiments, views that Israel shouldn’t exist, views criticizing what Israel has done in Gaza, which I’m critical of too, or support of Israel. The key is that all ideas and views can be expressed. It’s just the question of how it’s done.

FAW: It’s one thing, of course, to defend free speech and to be a staunch free speech defender, but it’s difficult when it’s a personal attack on you. What was it like for you to make that decision to allow the posters to remain up?

EC: It’s difficult because to put up an image of me holding a bloody knife and fork with blood around my lips and saying, “Boycott Zionist Chem,” they wouldn’t have done that if I wasn’t Jewish. So it’s hard to see it as other than anti-Semitic. And I think that anybody who’s ever been the subject of racism or sexism or anti-Semitism or homophobia, just how deeply hurtful that is. And that this was directed at me was really hurtful, and that it was from my students directed at me was really hurtful. And remember what they were calling to boycott was dinners at my home to celebrate the graduating class, that had been requested by the presidents of the graduating class. And yet, I had no hesitation in saying, when I was asked, “We can’t take down the posters because it’s speech that’s protected, and they posted in accord with the law school requirements for putting things on bulletin boards.”

FAW: In a piece you wrote for The Atlantic, you said that the experience made you “realize how anti-Semitism is not taken as seriously as other kinds of prejudice.” What did you mean by that?

EC: I’m not sure that non-Jewish students are as aware of the anti-semitic trope of blood libel as Jewish students would be. The bloody knife and fork and blood around my lips, so evokes the anti-Semitic trope of blood libel. On the other hand, once it says, “Boycott Zionist Chem” with this image, this caricature of me, hard to imagine that if I wasn’t Jewish, they would have done that. So it’s not subtle anti-Semitism. What struck me when I wrote that in The Atlantic was if it had been a caricature of a Black dean using a racist trope, I think the law school would have widely erupted in protest. I think because it was an anti-Semitic caricature, I got complaints from some Jewish staff and students, but there wasn’t the widespread outrage over it. And as I’ve seen some of the anti-Semitism across the country, I don’t think it’s gotten the same reaction that racist expression would have. In many campuses there was the calling out to those of whom are Jewish to go back to Poland or the sign at the George Washington University encampment: the “Final Solution.” I think if people had said similar things about race, I think there would have been much more of an outcry.

FAW: Do you think there’s a way to educate the student body on different anti-Semitic things that they may not be picking up on if they are outside of the Jewish community? Is there a way to have these discussions?

EC: I hope so. I hope that we can educate people about anti-Semitism, as well as racism, sexism and homophobia. Often it’s about ignorance, and then it’s our responsibility as educational institutions to educate.