Protesters Disrupt An Event At A Top Law School

Although the event resumed over Zoom, the law school will ‘pursue accountability for any students involved.’

Last Tuesday’s event featuring MK Rothman and Joshua Kleinfeld (photo courtesy of the Berkeley Federalist Society).

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In May, I attended an excellent conference, hosted by the Knight First Amendment Institute, about the future of press freedom. The conference was held shortly after protesters had disrupted an event at the home of Dean Chemerinsky and his wife, Professor Catherine Fisk—and Chemerinsky was a speaker at the conference.

During a break, he and I chatted about whether things would get better or worse at law schools in terms of free speech. I expressed optimism, suggesting that with many pro-Palestine protesters exercising their speech rights, perhaps folks on the left who previously viewed free speech and “cancel culture” as non-issues would come around.

Dean Chemerinsky was not optimistic. And perhaps he was right, based on a disruptive protest that took place last Tuesday, September 24, at Berkeley Law.

The event was titled Restoring Democracy: The Debate Over Judicial Reform in Israel, and it was sponsored by the Berkeley Federalist Society. It consisted of a conversation between MK Simcha Rothman, a member of the Knesset (the Israeli legislature), and Professor Joshua Kleinfeld of Scalia Law, a former law clerk to former Israeli Supreme Court president Aharon Barak. (I’m not sure why Professor Kleinfeld, who’s not on the Berkeley Law faculty, was Rothman’s interlocutor.)

[UPDATE (6:07 p.m.): According to the Berkeley Federalist Society, “It was because Professor Kleinfeld clerked approximately two decades ago for Aharon Barak, a former President of Israel’s Supreme Court (serving from 1995-2006). Barak is widely credited as the instigator of what is sometimes referred to as Israel’s ‘constitutional revolution,’ which the recent judicial reforms were at least in part formulated as a response to. But more importantly, we wanted one participant with experience in Israel’s legislature and another with a level of experience in Israel’s judiciary.”]

Rothman is a controversial figure. He belongs to the conservative Religious Zionism party, and he chairs the Knesset’s Constitution, Law, and Justice Committee, where he played a leading role in a wide-ranging overhaul of the Israeli judiciary—also controversial, the subject of large-scale protests across Israel in 2023.

The audience for the Rothman event—which was open to the general public, not limited to the Berkeley Law or UC Berkeley communities—contained a significant number of people who belong to UnXeptable. Founded a few years ago by Israelis living in the San Francisco Bay Area, the group describes itself as “a grassroots movement launched by Israeli expats in support of a democratic Israel.”

The members of UnXeptable are strongly opposed to Prime Minister Benjamin “Bibi” Netanyahu and the recent Israeli judicial reform, which they refer to as “the Judicial coup.” But at the same time, they support the existence of Israel as a Jewish state. As stated in their Core Principles, “We highly encourage people to bring Israeli flags and signs and, most importantly, bring more people who care about Israel as Jewish and democratic state.”

So here’s what happened last Tuesday, according to Haaretz (via The Jewish News of Northern California, which isn’t paywalled):

Carrying posters with the photos of the hostages being held in Gaza, the Israeli protesters surrounded Rothman when he entered the room, shouting: “What are you doing here in the middle of the war?” and “What have you done for the hostages?” ….

A representative of the law school opened the event by reciting a “civility statement” and emphasizing the importance of “respectful speech.”

Meanwhile, outside the auditorium, pro-Palestinian students, wearing kaffiyehs, had gathered, carrying signs bearing the names of Palestinians killed in the Gaza war. They directed their chants, not at Rothman, but rather, at the Israelis who had come to protest him.

“The counter-protesters, liberal Zionists, support the genocide in Gaza,” they chanted over and over.

A few minutes into Rothman’s response to Kleinfeld’s first question, the Israelis in the audience started shouting: “Go home!” and “Shame!”

They were unaware that several anti-Israel protesters were embedded in the crowd. One of them grabbed a microphone on the floor and began shouting: “Free, Free Palestine” and “Israel is a terrorist state.”

When a security guard tried to throw the anti-Israel protesters out, one of them shouted: “Why are you only throwing out the anti-Zionists? Why not the Zionists?”

“Don’t you understand that we hate him too?” an elderly Israeli woman who was part of the UnXeptable group said, pleading with the anti-Israeli protesters to leave the room.

“What you are doing is not helping the Palestinians. It is only harming them,” said another member of the UnXeptable group, as he grabbed the mic.

One could reasonably wonder whether disrupting Rothman’s event—instead of, say, asking him tough questions in Q&A—was advancing the goals of UnXeptable as well. But according to a tweet that UnXeptable posted after the protest, maybe shutting it down was their objective: “Determined protestors in Silicon Valley made sure that Rothman would not speak abroad and continue to lie….”

Back to The Jewish News:

As a shouting match erupted between the two groups of protesters in the auditorium, Rothman was escorted off the stage by police—not before he gleefully turned to members of the UnXeptable group and said: “Now we all know who your partners are.”

In the ensuing commotion, the anti-Israeli protesters ran to the main door of the auditorium, opening it so that the large group of pro-Palestinians protesters in the hallway could burst in. A fire alarm subsequently went off, and police shooed the entire crowd out.

An email sent by the Berkeley Law School a few minutes later notified ticket holders that “the speakers have decided to leave the building” and the event would resume on Zoom an hour and 45 minutes after the scheduled time.

For video of the event, see this tweet by Judy Maltz of Haaretz and this Powerline post by Steven Hayward (although some of the video embeds at Powerline seem to have been taken down). Much of the audio is in Hebrew, but you can get a better sense of what went down, including how the protesters were dressed and what their signs said. The protesters in the videos, some wearing blue and white capes with the Star of David on them, strike me as older than most law students.

Later in the day last Tuesday, Dean Chemerinsky sent a school-wide email about the disruption:

Dear Law School Community,

What occurred today in the Law School is unacceptable in an academic community. As I expressed in explaining our free speech policy at the beginning of the semester, we must be a place where all ideas and views can be expressed. There is no right to disrupt a speaker.

In clear violation of the policies of the Law School and the campus, an event was disrupted by audience members who refused to stop their loud protest despite being asked to leave. This forced us to shift to a virtual event on Zoom. Although I am glad the event could proceed, and the recording will be made available, I am deeply dismayed that this action denied the speaker his free-speech rights and the audience their chance to engage in person.  

It cannot be in an academic institution that we only hear those messages that aren’t shouted down. It cannot be that we tolerate protests that disrupt events and the Law School’s functioning. In my message on free speech earlier this semester, I said that student disruptors of school events would face disciplinary proceedings. We will pursue that if any students participated in disrupting the event.

We will have many speakers this year, including other controversial ones. We must do all we can to make sure that what happened today never occurs again.

Erwin

Dean Chemerinsky also issued a public statement. It’s essentially the same as his school-wide email, but its final line is worded slightly differently (and maybe more directly): “The protesters violated campus rules, and we will pursue accountability for any students involved."

I asked Dean Chemerinsky whether he was aware of any students who participated in last Tuesday’s disruption. He responded: “As best we can tell, the disruptors were not law students, but outside members of the public. Many who were present have confirmed this.” If this is incorrect—as my regular readers know, I hate posting inaccurate information—please email me.¹

The Berkeley Federalist Society also issued a statement, on Instagram:

We are deeply disturbed and disappointed by the disruptions that took place at our event yesterday, which was stormed and shut down by anti-Israel rioters. Our academic institutions cannot function as intended so long as the right to free speech is only selectively protected.

Here are a few thoughts about what transpired. First—and quite obviously—I agree with Dean Chemerinsky’s bottom line: what took place “is unacceptable in an academic community,” and any students who were involved must be disciplined.

Second, assuming it’s accurate that the disruptive protesters weren’t students at Berkeley Law, I wonder whether law school groups should consider restricting controversial events to members of the law school community. Some schools already do this—e.g., Yale Law School—and while it’s unfortunate, it might be necessary. (I asked Berkeley Law’s spokesperson, Alex A.G. Shapiro, whether events held at the school must be open to the public for some reason; he explained that it’s not required, and each hosting group decides if it wants an event to be open to the public.)

Third, note that the event was able to continue over Zoom. Perhaps any student group hosting a controversial speaker should come up with a similar Zoom backup plan—even if, in an ideal world, falling back to Zoom would not be necessary.

In this case, a number of precautionary measures were taken, as noted by Steven Hayward at Powerline. Attendees were warned at the start about the university’s speech policies, including possible discipline; security officers were present; and Berkeley’s chief of police and vice chancellor were in the room. But as subsequent developments demonstrated, even the best-laid plans can go awry.

Next month will mark the one-year anniversary of the October 7 attack on Israel and the start of Israel’s military intervention in Gaza, and there will definitely be protests. I hope—although won’t predict—that there are no disruptions, and everyone’s free-speech rights are respected.

P.S. I apologize for not writing about this earlier. Please email me promptly if you learn of similar events at your law school in the future.

[UPDATE (10/1/2024, 9:44 a.m.): A reader brought my attention to this tweet by Professor Stephen Sachs of Harvard Law School, in which he made this claim:

I am reliably informed that, per an administrator present, Dean Chemerinsky personally instructed—in advance—that those shouting and drowning out speakers were not to be involuntarily removed, unless they themselves engaged in violence. If so, that's an endorsement of the heckler’s veto, and any post-hoc condemnation is fake. Those unwilling to protect speech *at the time* have no business running an academic institution. That’s especially true for events open to the community, with attendees not subject to academic discipline.

I reached out for comment to Dean Chemerinsky, who shared with me a message he wrote to Professor Sachs:

Dear Professor Sachs,

I fear that you have inaccurate information in many ways.  First, the event did take place until its completion. In coordination with the presenters, we transitioned to Zoom, ensuring the discussion could continue. If there had been any danger to the speaker or others, the police would have intervened. Here is the link to the recording of Restoring Democracy: The Debate Over Judicial Reform in Israel.  [There was both a live Zoom audience and the recording was sent to everyone registered.]  Both speakers thanked us for handling it in this way.

Second, a judgment call always has to be made in a situation like this.  The person in charge felt that it was not just two people, but a larger group that would need to have been removed.  Physically removing a large number of people also would have the practical effect of preventing the event from continuing.  The question always is how to protect safety while preventing a heckler’s veto. 

Third, it is important to keep in mind that our approach is formulated with the UC Police Department as to how to achieve this.  We met with them on several occasions to plan for this event.

Fourth, I share your condemnation of the heckler’s veto and sent the below message to the school on Tuesday.  We will continually reevaluate our processes to try and make sure that there is not a heckler’s veto, but we also must protect safety.  In this instance, moving it to Zoom accomplished this as best we could in the circumstances.

I am traveling today, but will do my best to answer if you have other questions.

Warmly,

Erwin

Dean Chemerinsky then added some additional thoughts in his message to me:

I think that in deciding whether to use police to clear protestors, it is enormously complicated. Are there enough police to do so? Are the police willing to do so?  If police do so, will it so disrupt the event that it can’t realistically continue anyway? Will using police pose a threat to safety of the audience and risk escalation?  Is there an alternative, such as Zoom? Based on all of these factors, our presumption was that using police with a large number of protestors in the room was not likely to succeed in allowing the even to go forward. That was the judgment at the time of the person in charge.

I fear Professor Sachs ignored all of this and had come to his conclusion before writing me.

Also note that the report from The Jewish News contained the following information:

When a security guard tried to throw the anti-Israel protesters out, one of them shouted: “Why are you only throwing out the anti-Zionists? Why not the Zionists?”

So it appears that there might have been an initial attempt to remove some protesters—but when it became clear that there were so many of them, the event organizers decided to move to Zoom, instead of waiting for security to clear the room of all the protesters from two different groups. And also recall that at some point in all this chaos, a fire alarm was pulled—further supporting the decision to move to Zoom.

One final thought: it makes me think that for controversial events in the future, it might be necessary for security personnel to be posted by fire alarms. Pulling fire alarms to disrupt proceedings is nothing new—see, e.g., the allegations against Rep. Jamaal Bowman (D-N.Y.).]

1. Speaking of inaccurate information, please note the correction to yesterday’s edition of Judicial Notice: Alex Spiro, New York City Mayor Eric Adams’s lead lawyer, earned his undergraduate degree at Tufts, summa cum laude (not Harvard, which is where he went for law school). I apologize for mixing up my Boston-area schools.

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