No One Has a Right to Protest in My
Home
The difference between a private yard and a public forum
APRIL 26, 2024, 6 AM
ET
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. These dinners help create and reinforce a warm community, and, to
accommodate all students, they take place on many evenings during the year. The
only exceptions were in 2020 and 2021 because of COVID. So last year and this
year, at the request of the presidents of the third-year classes, we organized
make-up dinners on three successive nights and invited each of the 400
graduating students to attend one.
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 starves, 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.
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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.
The group responsible for the posters was not content to
have its say on paper. Student-government leaders told me that Law Students for
Justice in Palestine demanded that my wife and I cancel the dinners; if not,
the group would protest at them. I was sad to hear this, but the prospect of a
demonstration in the street in front of our home did not change our plans. I
made clear that we would still host dinners for students who wanted to attend.
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.
Some attendees sympathetic to the student-group leader
recorded a video. An excerpt of it appeared on social media and quickly went
viral. Soon newspapers and magazines published stories about it. Some
commentators have criticized my wife for trying to get hold of the microphone.
Some have said that I just should have let the student speak for as long as she
wanted. But in all of the dinners we have held over more than 15 years, not
once has anyone attempted to give a speech. We had no reason to change the terms
of the dinner to accommodate someone from an organization that put up
anti-Semitic images of me.
After struggling over the microphone, the student said if
we let go of it, she would leave. We relented, and she departed, along with
about 10 other students—all of whom had removed their jackets to show matching
T-shirts conveying a pro-Palestinian message.
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The dinners went forward on Wednesday and Thursday. On
Thursday night, about 15 people came to our home and stood on the street in
front of it, and then on the path directly next to our backyard. They chanted
loudly and at times offensively. They yelled and banged drums to make as much
noise as possible to disturb the dinner. The event continued.
Being at the center of a social-media firestorm was strange and
unsettling. We received thousands of messages, many very hateful and some
threatening. For days, we got death threats. An organized email campaign
demanded that the regents and campus officials fire my wife and me, and another
organized email campaign supported us. Amid an intensely painful sequence of
events, we experienced one upside: After receiving countless supportive
messages from people we have met over the course of decades, we felt like Jimmy
Stewart at the end of It’s a Wonderful Life.
Overall, though, this experience has been enormously sad.
It made me realize how anti-Semitism is not taken as seriously as other kinds
of prejudice. If a student group had put up posters that included a racist
caricature of a Black dean or played on hateful tropes about Asian American or
LGBTQ people, the school would have erupted—and understandably so. But a
plainly anti-Semitic poster received just a handful of complaints from Jewish
staff and students.
Many people’s reaction to the incident in our yard
reflected their views of what is happening in the Middle East. But it should
not be that way. The dinners at our house were entirely nonpolitical; there was
no program of any kind. And our university communities, along with society as a
whole, will be worse off if every social interaction—including ones at people’s
private homes—becomes a forum for uninvited political monologues.
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.
Erwin Chemerinsky is the dean and Jesse H. Choper Distinguished
Professor of Law at the University of California, Berkeley School of Law. He is
the author of Worse Than Nothing: The Dangerous Fallacy of
Originalism.
