On the first day of the fall semester, Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, learned that a student group created a bylaw that banned supporters of Zionism from speaking at its events.
Chemerinsky said he rarely used profanity but did so in that moment. As a constitutional law scholar and co-author of a book about campus free speech, Chemerinsky said that he knew the group, the Berkeley chapter of Law Students for Justice in Palestine, had the legal right to exclude speakers based on their views.
But he also knew the bylaw, which eight other student groups also adopted, would be polarizing within the law school and used as a cudgel by forces outside of it.
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The controversy, pushed along online by conservative commentators, hits two of the pressure points in campus politics today. The bylaw was adopted as antisemitism is rising across the country. And some critics of academia have cast left-wing students as censors who shout down other viewpoints, all but strangling, they say, honest intellectual debate.
That collision of issues all but guaranteed a tense debate over free speech, even if a broad swath of speech experts say that student groups are allowed to ban speakers whose views they disagree with.
“A student group has the right to choose the speakers they invite on the basis of viewpoint,” said Chemerinsky, who is Jewish and a Zionist. “Jewish law students don’t have to invite a Holocaust denier. Black students don’t have to invite white supremacists. If the women’s law association is putting out a program on abortion rights, they can invite only those who believe in abortion rights.”
Chemerinsky said that excluding speakers based on race, religion, sex or sexual orientation would not be allowed, but he noted that the student groups were excluding speakers based on viewpoint. True, he said, many Jews view Zionism as integral to their identity, but such deep passions do not change the law.
Other legal experts noted that the controversy showed just how mangled the understanding of the First Amendment had become, even at a place like Berkeley, the epicenter of the 1960s free-speech movement. The debate, they said, should focus on whether these bans align with the academic ideal of open, intellectual debate. Even if student groups can prohibit speakers, should they? And should such bans be codified — formally adopted with a bylaw?
“There’s a real confusion about freedom of speech as a cultural value and freedom of speech as a legal concept,” said Will Creeley, the legal director of Foundation for Individual Rights and Expression, a free-speech advocacy group.
The issues are not limited to the Justice in Palestine group. Campus groups often invite only those they agree with. Hillel, the Jewish student group with hundreds of chapters on college campuses, also has rules prohibiting speakers who “delegitimize” Israel.
In August, Law Students for Justice in Palestine announced that it, along with the eight other groups, had adopted a provision that it would “not invite speakers that have expressed and continued to hold views or host/sponsor/promote events in support of Zionism, the apartheid state of Israel and the occupation of Palestine.”
The student group said the ban was meant to promote the welfare of Palestinian students and was part of a broader provision aligned with the boycott, divestment and sanctions movement against Israel.
Some Jewish students expressed concern and tensions flared within the law school. Noah Cohen, a law student at Berkeley, said the bylaw was an example of how antisemitic rhetoric was being normalized in the United States. Cohen, who described himself as a Jewish supporter of Palestinian rights and statehood, said the bylaw made him and many other Jewish students feel “singled out and targeted.”
In public statements, Law Students for Justice in Palestine rejected the accusation that its bylaw was antisemitic. It says that being Jewish is an identity, while Zionism — the support for a Jewish state — is a political viewpoint. It welcomes and supports Jewish speakers who are not Zionists, the group said.
“Supporting Palestinian liberation does not mean opposition to Jewish people or the Jewish religion,” the group said in a statement to the Berkeley law community. Members of the group did not respond to messages seeking an interview.
After learning about the bylaw, Chemerinsky met with the university’s Hillel rabbi and spoke with several Jewish students, but, aside from concerns within the law school, the reaction was relatively muted, he said.
That changed, he said, after Kenneth L. Marcus, the civil rights chief of the U.S. Education Department during the Trump administration, wrote about the bylaw in September in The Jewish Journal under the explosive headline “Berkeley Develops Jewish Free Zones.”
Marcus wrote that the bylaw was “frightening and unexpected, like a bang on the door in the night,” and said that free speech does not protect discriminatory conduct.
The article went viral.
Chemerinsky said he learned about Marcus’ article, which he described as “inflammatory and distorted,” while he was in Los Angeles for a conference. Chemerinsky said he typed out a response to the article, which was appended to it, and then didn’t think much of it. That afternoon, he was deluged by emails. At an alumni event that night, the law school’s perceived hostility to Jews was “all anyone wanted to talk about.”
In an interview, Marcus, a Berkeley law school alumnus, said he was contacted by law students there who were concerned about the bylaw. He said he spent weeks trying to support them and wrote his article after Berkeley did not “rectify the problem.”
Not allowing Zionist speakers, he said, was a proxy for prohibiting Jews. The provisions, he said, are “aimed at the Jewish community and those who support the Jewish community,” even while acknowledging that the policy could allow Jewish speakers and bar those who are not Jewish.
The article stoked outrage. Sen. Ted Cruz, R-Texas, and singer Barbra Streisand both tweeted about it. “When does anti-Zionism bleed into broad anti-Semitism?” Streisand wrote.
Politicians called for action. Rep. Brad Sherman, D-Calif., said in a statement that funding to the groups should be conditional on revoking the provision. Rep. Josh Gottheimer, D-N.J., said that the Education Department should investigate “whether and how federal taxpayer dollars are used to discriminate against Jewish and pro-Israel students” at the university.
In many ways, Chemerinsky was well suited to navigate the issues. In 1999, he helped found the Progressive Jewish Alliance, a social justice group based in Los Angeles. He is also co-chair of the National Center for Free Speech and Civic Engagement at the University of California and a co-author of a book on campus speech.
But the past semester has been a challenge. Many students have been doxxed and harassed for their connection to the bylaw, Chemerinsky said. In the weeks after Marcus’ article, he added, a right-wing group that describes itself as a media watchdog drove trucks near campus comparing the students who adopted the bylaw to Hitler, and included the names of the students who were in the organizations that adopted the bylaw, even if they voted against it.
As the semester ended Friday, Chemerinsky was still dealing with the fallout.
The Office for Civil Rights at the Education Department said Dec. 13 that it would open an investigation into whether Berkeley responded appropriately, according to Arsen Ostrovsky, one of two lawyers who filed a complaint on behalf of the International Legal Forum, a group based in Tel Aviv, Israel.
Opening an investigation does not imply that the office has determined that the case has merit, according to a letter sent to Ostrovsky by the Office for Civil Rights.
Chemerinsky said the complaint, which calls on Berkeley to “immediately invalidate” the bylaw, includes the same flawed assumptions from previous attacks. He said he was confident that Berkeley was on “strong legal ground.”
“Every dean or school administrator always worries about being accused of discrimination,” he said. “I never imagined I would be accused of discrimination against Jews.”
