When a Pro-Free-Speech Dean Shuts Down a Student Protest

Viral videos demand context, but sometimes the stories behind the clips seem to obscure what we can already see. Last week, footage circulated of a dispute in a back yard. A young woman wearing a red hijab stands in a garden stairway with a microphone in her hand. “Assalmualikum wa rahma tallahi wa barakatu,” she

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Viral videos demand context, but sometimes the stories behind the clips seem to obscure what we can already see. Last week, footage circulated of a dispute in a back yard. A young woman wearing a red hijab stands in a garden stairway with a microphone in her hand. “Assalmualikum wa rahma tallahi wa barakatu,” she says. “Peace and blessings upon you all.” A moment later, off camera, a man’s voice pleads, “Please leave. No. Please leave. Please leave. This is my house.” An older man in a gray sweater appears in front of the speaker, his arms crossed; the speaker ignores him. “Tonight is also the last night of the holy month of Ramadan,” she continues.

Then a woman in a white blouse and a black skirt arrives on the stairs, grabs the microphone, and puts her arm around the speaker’s shoulder. “Leave. This is not your house,” the woman in the black skirt says. “It is my house.” She tugs at the microphone with her left hand and grabs the speaker’s shoulder with her right. “Please do not touch me,” the speaker says. “This is my First Amendment right.” The two women have some back and forth about the First Amendment before the woman in the black skirt tries, again, to wrestle the microphone away. They struggle awkwardly, moving up the stairs, then the speaker agrees to leave if the woman in the skirt will return the microphone.

Within days, the incident in the garden had been commented upon by countless legal journalists and professors on social media and had got written up in multiple major newspapers. At first glance, deciding who is in the wrong seems simple enough. The woman in the skirt should not have put her hands on the speaker, who, at that point, had simply offered a greeting and noted that it was the last night of Ramadan. But, as with all viral videos, there is both a context and a story behind what we see, and they are worth understanding, not only to decide whether there’s another way to look at what happened but also to grasp how context functions when it comes to controversies in the news, and who gets to decide what details matter.

The garden sits in the tony Rockridge neighborhood of Oakland, California. It belongs to a married couple: Erwin Chemerinsky, who is the dean of the U.C. Berkeley School of Law, and Catherine Fisk, a progressive labor scholar who also teaches at the law school. Fisk is the woman in the black skirt; Chemerinsky is the man in the sweater. The speaker in the red hijab is a student, Malak Afaneh, a twenty-four-year-old Palestinian American third-year student and the co-president of the Berkeley chapter of Law Students for Justice in Palestine, or L.S.J.P.

One way to tell the story of the video is to begin in the fall of 2src22, when Afaneh realized that, just as other student groups had bylaws forbidding white supremacists from speaking at their events, the L.S.J.P. could ban Zionists from speaking at the ones it held, and that it could encourage other groups to do the same. Zionism, Afaneh told me, is a “form of racism and a form of settler colonialism,” and such a bylaw was consistent, she believed, with the logic of the Boycott, Divestment, Sanctions, or B.D.S., movement, which aims to put cultural and economic pressure on Israel by cutting ties with Israeli institutions. “B.D.S. is not only about material boycott,” Afaneh said. “It’s also about academic boycott. It’s insuring that people who believe in settler colonialism and genocide are not being invited into spaces and making other students feel unsafe.”

Chemerinsky—who co-authored a book about campus free speech, in 2src17, which argued that even hate speech must be protected—heard about the L.S.J.P. bylaw on the first day of classes that semester. His initial response, he told me, was, “Oh, shit.” He had already been disturbed by the trend among campus activists across the country to shut down speakers they did not like, he said. And though he recognized that barring Zionist speakers was not the same as excluding Jewish people generally, he believed that the bylaw was inconsistent with the position “that all ideas and views can be expressed and should be expressed.” He also realized that the bylaw, if enforced, forbade him from speaking at L.S.J.P. events, because he supports the existence of Israel.

There were calls from some students and faculty members at the law school to prohibit the bylaw or defund the L.S.J.P. as well as the other groups that adopted it, but Chemerinsky maintained that student organizations had a First Amendment right to invite, or disinvite, whomever they wanted. He took the same position regarding guidelines enacted, more than a decade before, by Hillel International, a Jewish student organization, which precluded hosting events that featured anti-Zionist speakers.

Predictably enough, this stance satisfied basically no one. A few weeks into the semester, the lawyer and scholar Kenneth L. Marcus wrote a piece for the Jewish Journal headlined “Berkeley Develops Jewish-Free Zones.” The piece helped turn an intra-campus dispute into a viral fight that got attention from national politicians and Barbra Streisand, among others. Chemerinsky did not reverse his position, but he did sign a public letter, written by two of his colleagues, Steven Davidoff Solomon and Mark G. Yudof, which condemned the bylaw as discriminatory and argued that “many Jews . . . experience” the bylaw “as antisemitism because it denies the existence of the state of Israel, the historical home of the Jewish people.” The letter added, “For many Jews, Zionism is a core component of their identity and ethnic and ancestral heritage.”

Chemerinsky’s decision to sign the letter evoked mixed reactions from his colleagues. Even some who agreed with the views expressed in the letter believed that Chemerinsky, as the dean of the law school, should have remained neutral on the issue. Solomon, for his part, disagrees. “The students had taken steps that our dean not only rightly called antisemitic but which fundamentally denied Jewish students their self-identity,” he told me. “What is a law school for if it’s not against illiberalism?”

Then, eight days after October 7th, Solomon published an op-ed in the Wall Street Journal titled “Don’t Hire My Anti-Semitic Law Students.” He argued that student organizations that adopted the L.S.J.P. bylaw were “engaging in anti-Semitism and dehumanizing Jews” and were “part of the broader attitude against Jews on university campuses that made last week’s massacre possible.” He advised employers to ask students which organizations they belonged to, and not to hire members of groups that had endorsed the bylaw. In response, more than two hundred alumni of the law school signed an open letter addressed to Chemerinsky insisting that Solomon’s directive “harms free speech and threatens the safety and livelihoods of students.” Chemerinsky, in turn, defended Solomon’s freedom of speech, saying that professors have a right to express their personal opinions. He also noted that Solomon was not speaking for the law school, which, he said, is committed to helping all students secure jobs.

Chemerinsky also published an op-ed of his own, in the Los Angeles Times. “I have heard few campus administrators speak out publicly about the antisemitism that has become prevalent this month,” he wrote. “They want to seem neutral or not be perceived as Islamophobic. I understand. I, too, refrained from speaking out against those who defended Hamas’ terrorist attack. But when do we stop being silent and when do we say the antisemitism must be condemned and it is not acceptable on our campuses? I believe this must be that time.”

In January, the conservative nonprofit Accuracy in Media drove a truck near the school with the names of people, including Berkeley students, whom the group accused of engaging in antisemitism. Chemerinsky condemned the nonprofit and its truck. “Its harassment of our students is loathsome and I condemn it in the strongest possible terms,” he said. “It is an attempt to intimidate students for their speech that is protected by the First Amendment.”

All of this was in the background when, in March, Chemerinsky announced that third-year law students would be invited to a series of dinners held at the dean’s home. After the announcement, Berkeley L.S.J.P. created a poster denouncing the parties. It read “NO DINNER WITH ZIONIST CHEM WHILE GAZA STARVES!” alongside an illustration of Chemerinsky holding a bloody fork and knife with crumbs on his face. The group distributed the poster on campus and posted a picture of it on Instagram.

One needn’t have much knowledge of the history of blood libel to recognize the image, immediately, as antisemitic, or to understand the effect that the poster might have not only on Jewish students and faculty but on anyone who does not want to see bigoted images on their campus. Chemerinsky told me that some people in the law school wanted the posters ripped down from the walls, and that he had asked that they be kept up, to respect the First Amendment rights of his students. He also said that the posters indicated a continued failure among the broader campus community to recognize the problem of antisemitism. “I think if there was a similar poster about a Black dean with exaggerated African features, there would have been a much larger outcry,” he told me. Chemerinsky said that most of the complaints he received about the posters were from Jewish students and staff. Sympathy and outrage from others seemed to be lacking. “I was just sad,” he said. “My main reaction to the poster was just it made me really sad.” The poster, he added, was essential context for understanding what happened later in his garden.

Since the video of the garden incident went viral, there has been a lengthy and somewhat pedantic online debate about whether or not Afaneh’s constitutional rights were violated, and whether the dinner, which was held on private property but was an official university function, should be seen as a protected area under the First Amendment. According to many of the constitutional scholars who have weighed in—and it feels like most of them have—Chemerinsky’s home is not a free-speech zone, even if it’s being utilized for a law-school event.

I will leave that debate to the scholars—not because it is uninteresting, but because, as every free-speech pedant will remind you, there is a difference between the specific legal scope of the First Amendment and the broader spirit of free speech and expression. Throughout his career, Chemerinsky has shown an admirable concern with the latter. Wouldn’t someone who believes in the sanctity of student speech allow a protest to continue at a school function, even if that protest took place on private property? When I asked Chemerinsky this, he said that nobody has the right to disrupt activities or interrupt another speaker. Afaneh did not shout down anyone; she spoke while other students were eating. And, at the moment when she was interrupted by Chemerinsky and Fisk, she had simply wished everyone a happy Ramadan.

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