Last week, Berkeley Law Students for Justice in Palestine posted on law-school bulletin boards and circulated on social media a viciously anti-semitic caricature of Berkeley law dean Erwin Chemerinsky. Captioned “No Dinner With Zionist Chem[erinsky] While Gaza Starves,” the cartoon objected to a series of dinners that Chemerinsky and his wife, Berkeley law professor Catherine Fisk, would be hosting at their home for third-year law students who signed up to attend. An actual protest took place at the first dinner on Tuesday. According to Chemerinsky:
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 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.
The incident has gotten a lot of attention in part because what Chemerinsky describes in the passive voice as “an attempt to take away her microphone” was a rather aggressive intervention by Fisk, who grabbed the phone the student was reading from and put her elbow around the student’s neck (while telling her “This is not your house”).
The protesting student claimed that she had a First Amendment right to disrupt the dinner and speechify. Kooky as that claim is, a remarkably expansive view of First Amendment rights draws support from a long law-review article by a distinguished scholar by the name of … Erwin Chemerinsky.
In “Rethinking State Action,” Chemerinsky argues that the state-action requirement “makes no sense” and should be abolished: “[L]imiting the Constitution’s protections of individual rights to state action is anachronistic, harmful to the most important personal liberties, completely unnecessary, and even detrimental to the very goals that it originally intended to accomplish.” “[E]liminating the state action doctrine would enhance liberty by ending the arbitrary favoritism of violators over victims.” “[T]he values embodied in constitutional rights also should be recognized as rights limiting private actions, absent sufficiently compelling justifications for the behavior.” And so on, for more than 50 pages.
The Court of course has not adopted Chemerinsky’s recommendation. But the state-action requirement is not the reason that the student’s First Amendment claim fails.
When acting in his capacity as dean of a public university’s law school, Chemerinsky is a state actor. Chemerinsky certainly appears to have been acting as dean in hosting the dinners: He extended an open invitation to all third-year law students. He evidently promoted the dinners through law-school channels of communication. Although the record isn’t clear on the point, it seems a safe bet that law-school funds covered the cost of the dinners.
Chemerinsky states that because his house “is private property … the First Amendment simply does not apply there…. As a matter of constitutional law, this is absolutely clear.” I gather that what he means, in doctrinal terms, is that his home, unlike streets and sidewalks, is not a “public forum.” So even though he was hosting the dinners in his capacity as a state actor (public law-school dean), his house did not thereby become a free-speech zone. (I am agreeing with David Lat’s tweet thread.)
The same First Amendment analysis would apply, I think, if Chemerinsky had hosted the dinners in an event room at the law school. That event room would also not be a traditional public forum, nor, given the nature of the dinners, would it become a designated public forum for speech. So while the fact that the dinners were at Chemerinsky’s home makes the First Amendment analysis obvious, that fact is actually not essential to the conclusion.