A Tale Of Two Protests: UVA v. Berkeley Law

What's the most effective way for law students to fight injustice?

Berkeley Law (photo by David Lat)

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Last week, when I went down to speak at UVA Law, I arrived in time to attend a speech about textualism by Justice Jay Mitchell of the Alabama Supreme Court. I got to know Justice Mitchell last fall, when we participated in a debate about whether the U.S. Supreme Court should adopt an ethics code—I argued in favor, he argued against—and even though we disagreed, I appreciated his thoughtful perspective. So I was eager to attend his UVA talk.

But Justice Mitchell is now a controversial figure, ever since he wrote the Alabama Supreme Court’s opinion in LePage v. Center for Reproductive Medicine, P.C.—the big IVF case, in which the court held that the destruction of frozen embryos can give rise to a wrongful-death cause of action. Some UVA students decided to protest him.

As I approached the room where he would be speaking, I saw several protesters standing outside and holding signs. I wondered if they would yell at me or other people going into the talk, à la the Stanford law students who shouted “shame, shame” at attendees of Judge Kyle Duncan’s March 2023 talk—and who screamed at Judge Duncan things like, “We hope your daughters get raped!”

But these were the most polite protesters I’ve ever seen. They didn’t heckle or harass Justice Mitchell, me, or anyone else who went into his talk. They stood outside the room, quietly holding signs. And once his talk got underway, they left to attend a counter-event—“a lunch to raise funds for SisterSong, a reproductive-justice coalition led by women of color.” That counter-event was accompanied by a flyer that criticized Justice Mitchell’s LePage opinion, replete with footnotes and case citations.

And that’s how protest should work. Upon learning that Justice Mitchell was coming to campus, protesters prepared a written critique of his opinion, circulated it within the law school, and invited people to attend a competing event. They responded to reasoned argument with reasoned argument. They didn’t prevent those of us who wanted to listen to Justice Mitchell from doing so. They didn’t disrupt.

Contrast the respectful response to Justice Mitchell with the disruptive protest at UC Berkeley School of Law on Tuesday night. Here’s a statement issued on Wednesday by Dean Erwin Chemerinsky, whose private residence was the site of the protest:

I write this with profound sadness. Since I became a dean, my wife [Professor Catherine Fisk] and I have invited the first-year students to our home for dinner. We were asked this year by the presidents of the third-year class to have the graduating students over for dinner because they began in Fall 2021 when COVID prevented us from having dinners for them. We were delighted to oblige and designated three nights—April 9, 10, 11—that graduating students could choose among. I never imagined that something that we do to help our community would become ugly and divisive.

Last week, there was an awful poster, on social media and bulletin boards in the law school building, of a caricature of me holding a bloody knife and fork, with the words in large letters, “No dinner with Zionist Chem while Gaza starves.” I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment. But I was upset that those in our community had to see this disturbing, antisemitic poster around the law school.

The students responsible for the poster later issued a sanitized version, with the blood removed from the utensils. But you can see the original over at the Washington Free Beacon.

Why the focus on Dean Chemerinsky? According to his statement, a statement by UC President Michael Drake, and a statement by UC Board of Regents Chair Rich Leib, it appears the protesters attacked the dean for no apparent reason other than his Jewish identity.

As you can see from his faculty bio, Dean Chemerinsky focuses his scholarship and teaching on constitutional law, criminal procedure, and federal jurisdiction; he is not a scholar of the Israel-Palestine conflict. And although some students have shared with Dean Chemerinsky their view that the University of California should divest from Israel, he has explained to them that even though he’s a dean, he does not control the UC system’s investment policies. So one can’t help wondering why he was targeted—and whether a non-Jewish dean would have been targeted as well.

Back to Dean Chemerinsky’s statement:

The students responsible for this [poster] 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.

On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman [later identified as Berkeley Law student Malak Afaneh] stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.

You don’t have to take Dean Chemerinsky’s word for it. The disruption was also captured in a video, posted by the Bay Area Palestinian Youth Movement, which went viral yesterday. A longer video, posted on Twitter this morning by Steve McGuire, provides more context—and shows how the students were asked to leave well before the culminating event captured in the shorter video.

Here’s the conclusion of the Chemerinsky statement:

The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

I have spent my career staunchly defending freedom of speech. I have spent my years as dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner.

The speechifying by Malak Afaneh, head of Berkeley Law Students for Justice in Palestine, was actually the culmination of a broader disruption on Tuesday night, according to the Jewish News of Northern California. A Jewish 3L who attended the dinner told the publication that the protesters were speaking and disrupting for quite some time before it all culminated in the viral video—and they “did not leave when they were asked the first 20 or 30 times.” They departed only after Professor Fisk said that while she didn’t want to call the police, she would do so if necessary.

In the video, you can hear Malak Afaneh asserting that “this is our First Amendment right,” citing legal advice from the National Lawyers Guild. But you don’t need to be an authority on the First Amendment—like Dean Erwin Chemerinsky, who has literally written the book on free speech on campus—to know that a private home is not a public forum. He explained why to the Los Angeles Times:

The house is privately owned by my wife and me. The mortgage is our names. It is on a street in Oakland. It is not owned by the university, on university property, or in any way paid for by the university. It is private property, and the First Amendment simply does not apply there. No one has the right to come into my house, or yours, and disrupt a dinner. As a matter of constitutional law, this is absolutely clear.¹

So at the end of the day, after the UVA and UC Berkeley protests, I’m left with this question: what’s the purpose of protest?

Is it about public persuasion, winning over the hearts and minds of the undecided people on any given issue? If so, then a UVA-style protest is the way to go. Most outside observers would read about what happened at the Chemerinsky home, identify with the Chemerinskys, and think less of both the protesters and any cause they’re pushing. This is especially true in the legal profession, which is culturally conservative, i.e., more focused on rules and decorum than many other fields.

I have similar concerns about the effectiveness of pro-Palestine protests that blocked the Holland Tunnel in New York and the Bay Bridge in San Francisco for hours, causing hours of traffic delays. If I’m a commuter—perhaps a working-class commuter, who might be docked pay or fired for being late to my job—will protests like that persuade me that the pro-Palestinian cause is just? Or are they just going to make me angry at the protesters?

But in the year 2024 on a university campus, maybe protest isn’t about public persuasion, but performance. And that performativity is for the benefit not of the public, but of the protesters—who get to congratulate themselves on how they took bold action to bring attention to serious injustice.

At Berkeley Law, Dean Chemerinsky declared that for any such events in the future, “any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.” But what about Malak Afaneh and the other students who have already engaged in disruption?

I emailed Dean Chemerinsky, expressed my sympathy and support for him and Professor Fisk, and asked whether the students who disrupted his dinner might be disciplined. He wrote back, “I do not know whether discipline will be sought against the student who did this.”

I then suggested to him that he should bring disciplinary proceedings against the students; since it was his home and hospitality that were so egregiously violated, he and Professor Fisk most definitely have standing. He responded that they don’t yet know whether they will pursue discipline themselves—but if they do, it would by law be confidential within the university.

Perhaps one could argue that Afaneh and her fellow protesters weren’t on notice that their actions would trigger discipline. I don’t find this persuasive, since disrupting a university event and remaining on private property after being asked to leave—i.e., trespass—obviously violate UC Berkeley rules and local laws. But conceding the point for the sake of argument, it has now been made clear that students who engage in similar protests in the future will be disciplined. (Dean Chemerinsky informed me this morning that the dinner held last night “was without incident and was quite lovely”—and hopefully tonight’s will also go off without a hitch.)

Student protesters who violate university rules or local laws like trespass or assault statutes should accept their punishments willingly, without complaint. I spoke not long ago with one law school dean whose institution hasn’t suffered any Stanford- or Berkeley-style disruptions. I asked why. The dean gave a number of reasons, and one is that the administration has made clear to the students that any disruptions of university events will be met with university discipline. The dean pointed out to me that the United States has a long and noble tradition of civil disobedience, but civil disobedience involves accepting the consequences of your actions. As David French once quipped on Advisory Opinions, Dr. Martin Luther King Jr.’s famous essay is titled “Letter from Birmingham Jail,” not “Letter from Birmingham Coffeeshop.’”

Take the case of Jack Petocz, a 19-year-old student who recently complained on social media about getting expelled from Vanderbilt University for his involvement in a pro-Palestine protest. Video shows Petocz and his fellow protesters forcing their way into a closed university building and assaulting a security guard, in order to take over the premises for a sit-in.

If folks like Jack Petocz and Malak Afaneh believe their actions are justified in order to bring public attention to the plight of Palestine, that’s all well and good. But they don’t get to escape otherwise applicable punishment because their cause is just. The willingness to accept punishment is a feature, not a bug, of civil disobedience.²

I’ll conclude by urging law-student activists to ask themselves, before they get involved in a disruptive protest like the one at Berkeley Law: is this about the Palestinians, or is this about me? Am I acting in a way that’s selfless, or is it self-aggrandizing? Am I trying to make social change, or am I seeking the sugar high of a viral Instagram post?

And I’d also urge them to ask themselves: what’s the best way to bring about social change, at least for people with the talent and drive to make it to elite institutions like Berkeley Law? Is it to get expelled from law school or denied bar admission for breaking university rules or even criminal laws as part of a protest? Or is it to work hard, rise up through the system, and stand up against injustice once in a position of power?

When Ketanji Brown Jackson was a student at Harvard College, a fellow student hung a Confederate flag from the window of a dormitory. Jackson and other members of the Black Students Association, who took the flag as a statement that they didn’t belong at Harvard, spoke out against the flag and protested. But they also made sure to stay on the right side of the law—and to continue excelling on campus.

As one of Jackson’s classmates—Antoinette Coakley, now a law professor—recalled to the New York Times in 2022, “Ketanji said, ‘Wait a minute. As we’re doing this, we’re missing out on classes. As we’re fighting against this injustice, we’re actually doing them a service, because we’re going to be failing.’”

“So we protested, but we made sure we were in class,” Coakley said. “We were going to show them that by showing up the way that we did—excellently—that they were wrong.”

Progressive law students, be like Justice Jackson. Don’t get mad—get powerful. And then you’ll be able to make a real difference in the world.

1. The comments section of an Instagram post is an even less reliable source for legal analysis than the National Lawyers Guild, but one IG commenter tried to argue that when the Chemerinskys “decided to host a UC event, paid by the UC, it becomes bounded to UC policies. ‘It’s his house’ sure but it’s a university sponsor event and the student has the right to exercise his student rights to protest & engage in academic/free speech.”

Let’s assume the Chemerinsky home was, for the night of this dinner, property controlled by the University of California and therefore the government. In that case, it would be what’s called a “nonpublic forum” in First Amendment doctrine. As the Supreme Court explained in Minnesota Voters Alliance v. Mansky, a nonpublic forum is a space that, while under government control and open for some presence by some members of the public, “is not by tradition or designation a forum for public communication.”

Instead, a nonpublic forum is designated for some purpose other than public speech—in this case, hosting a dinner. And the Court made clear in Adderley v. Florida that when it comes to a nonpublic forum, “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”

For nonpublic forums, per Chief Justice John Roberts in Minnesota Voters Alliance, “the government has much more flexibility to craft rules limiting speech.” According to another First Amendment expert—Professor Eugene Volokh, who said he agrees with my bottom-line conclusion—in a nonpublic forum, “the government acting as proprietor may impose restrictions so long as they are reasonable and viewpoint-neutral.”

In this case, it was eminently reasonable for the Chemerinskys to ban political speeches at a celebratory dinner for 3Ls. Ask yourself: would you want to be subjected to political diatribes at a social occasion of this nature?

And there has been no claim that the Chemerinskys were engaged in viewpoint-based discrimination. To the contrary, per the L.A. Times, a separate video records Professor Fisk telling the protesters, “We agree with you about what’s going on in Palestine.”

Had a pro-Israel student started giving a speech attacking Hamas or had a pro-environment student started giving a speech about fracking, I’m sure the Chemerinskys would have asked those students to stop and to leave as well. Professor Volokh concurred with me: “I agree that people running this sort of dinner likely wouldn’t let anyone highjack it for their own political purposes, regardless of their viewpoint.”

[UPDATE (1:13 p.m.): Numerous experts on the First Amendment, from across the ideological spectrum, agree that this protest was not constitutionally protected. I collect their thoughts in this Twitter thread.]

2. There’s a debate in political-theory circles over whether acceptance of consequences is a necessary part of civil disobedience. But it’s still the conventional or majority view that “[c]ivil disobedients are standardly expected to take responsibility for, and accept the legal consequences of, their lawbreaking.” In the words of Professor Rory Little, “the ‘non-evasion’ of consequences is a long-honored component of principled civil disobedience.”

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