How “free” can speech be?

Photo courtesy of Nathan Worden

What happens when an expert in First Amendment law finds himself at the center of a debate on the limits of free speech? Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, recounted his experience in a broader discussion on free speech and civil discourse in an Oct. 9 discussion with Chapman communications professor Vikki Katz.

Chemerinsky, an expert on First Amendment law who has written multiple books about campus free speech, discussed the role universities play in facilitating civil discourse and respectful dialogue.

“I think our country is more ideologically divided than it’s been at any time since Reconstruction, and that poses an enormous challenge for free speech and campuses,” he said.

This divide was evidenced in an April 2024 incident when Chemerinsky and his wife, UC Berkeley law professor Catherine Fisk, hosted dinners for third-year law students at their home. 

In the week prior, posters calling for boycotts of the dinners featuring a caricature of Chemerinsky were posted by Berkeley Law Students for Justice in Palestine (LSJP). During one of the dinners, the co-president of LSJP brought a microphone and attempted to begin a speech before Chemerinsky and Fisk intervened. The student was condemned by university officials, who called the event “antisemitic,” while the student argued that Chemerinsky and Fisk’s actions constituted Islamophobia, as Fisk appeared to grab her keffiyeh and headscarf.

At the Chapman discussion, Chemerinsky said that the poster was antisemitic and targeted him just for being Jewish, while maintaining that it was protected speech under the First Amendment. 

The pro-Palestinian organizers argued that the posters were not due to his religion but due to his stating that Israel’s military actions in Gaza did not “meet the legal definition of genocide.”

Furthermore, Chemerinsky said that the right to free speech did not apply at the event, which was on his private property, though others challenged this claim, highlighting the murky and often politically charged nature of incidents involving free speech, even for experts on the topic.

According to Chemerinsky, the incident highlighted the challenge of finding a balance between encouraging campus free speech and protecting students, especially in the case of hate speech, which is often legal under the First Amendment.

Katz, who serves as the Fletcher Jones Foundation Endowed Chair in Free Speech and researches the implementation of civil discourse into curricula, shared her own sentiments on the topic. She said in the past, she felt that free speech was meant to protect minorities, whereas today, minorities may actually be protected by restrictions on free speech, such as Jewish students and staff subject to antisemitic rhetoric on campuses.

“Just because it’s legal doesn’t mean it should be said,” Chemerinsky said, arguing that while individuals and organizations have the instinct to suppress what they don’t like, hate speech cannot be restricted or banned.

Katz and Chemerinsky also weighed in on the responsibilities of campuses, such as protecting the value of free speech, providing instruction for civil discourse and hiring administration and faculty that create a welcoming environment for everyone.

Chemerinsky argued that professors have the right to teach skewed viewpoints so long as they can still fulfill professional standards and welcome students from all perspectives. He called the recent firings of educators in Texas and elsewhere over controversial views “the specter of McCarthyism,” referring to former Senator Joseph McCarthy, who spearheaded unsubstantiated investigations meant to expose Communists in U.S. government positions in the 1950s.

Chemerinsky said that he believed the most important responsibility for universities today is standing against what he called the blatantly unconstitutional proposals outlined by the Trump Administration. He provided the example of the “Compact for Academic Excellence in Higher Education,” which President Trump introduced on Oct. 1. 

He called on universities to reject the compact and argued that solidarity among campuses would reduce fears of retaliation.

The discussion finished with Chemerinsky urging universities to promote diverse viewpoints and facilitate civil discourse on campuses. He called higher education the “greatest engine of social mobility,” arguing that if campuses don’t deliberately encourage free speech, a central facet of democracy will be lost.

As Chemerinsky said: “The remedy for speech is more speech.”