Untangling UC Berkeley’s ongoing First Amendment dispute
This fall, nine Berkeley School of Law student organizations made waves statewide when adopting bylaws that exclude pro-Zionist speakers—of any topic. Pepperdine’s School of Law Dean Paul Caron argues on the TaxProf Blog that, while legal under the First Amendment, this “sweeping prohibition” undercuts open inquiry and should be peacefully opposed by Berkeley faculty.
The University of California’s Berkeley campus has been a hotbed of leftist politics since at least the early 1960s, so it is unsurprising that students at its prestigious law school have long embraced the cause of Palestinian rights. It was shocking, however, when the latest expression of anti-Israel sentiment veered into territory so extreme that even the law school’s progressive dean, Erwin Chemerinsky, observed that it could be seen as antisemitic. Although the students had not in any sense established “Jewish-free zones,” as some overheated commentaries called them, what they did was bad enough. Nine law-school affinity organizations, nominally representing a majority of the student body, adopted a bylaw providing that they will not “lend platforms to speakers” who “have professed or continue to hold” Zionist views.
Yes, you read that correctly. The bylaw does not simply prohibit pro-Israel presentations at the organizations’ events. It bans speakers on any topic who happen to support the existence of Israel — a category that encompasses more than 80 percent of the world’s Jews, and includes many Berkeley Law students and faculty. As Chemerinsky remarked in an email to students, “Indeed, taken literally, this would mean that I could not be invited to speak because I support the existence of Israel, though I condemn many of its policies.” For the same reason, I would also be unable to speak to the student groups about my research on 19th-century abolitionist lawyers, notwithstanding my decades of support for the anti-occupation movement within Israel. ...
The sweeping prohibition — enacted by the Muslim Student Association, Queer Caucus at Berkeley, Women of Berkeley Law, Asian Pacific American Law Students Association, Law Students of African Descent, and others — violates the basic values of free speech and open inquiry, which lie at the heart of law practice and legal education. …
Writing in The Daily Beast, Dean Chemerinsky explained that the offending student groups have exercised their own First Amendment rights to freedom of speech and association. “I find their statement offensive,” he said, “but they have the right to say it. To punish these student groups, or students, for their speech would clearly violate the Constitution.” Eugene Volokh, the prominent free-speech scholar at the University of California at Los Angeles, expanded on Chemerinsky’s position, noting that “private groups have the First Amendment right to choose whom to invite as speakers based on the speakers’ views, even views unrelated to the particular event.” Although it might be theoretically possible, Volokh continued, for a university to craft a rule barring “student groups from discriminating based on a speaker’s viewpoint that’s unrelated to the topic the speaker is discussing,” it would be virtually impossible to carry out in practice.
I agree with Chemerinsky and Volokh that the nine student organizations have the right to exclude speakers on the basis of perceived political support for Israel, but that is not the end of the discussion. First Amendment principles protect the groups and their leaders from discipline by the university, but that does not mean they are free from other consequences. At a minimum, university faculty of all persuasions should refuse to speak at events sponsored by the nine organizations, so long as their restrictive bylaw remains in effect.
This article originally appeared in the TaxProf Blog. Read the whole thing here.
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