UC Berkeley Law Dean Erwin Chemerinsky Discusses Free Speech on Campus

UC Berkeley School of Law Dean Erwin Chemerinsky spoke about free speech on college campuses on Tuesday in the Price Center Theater to a crowd of around 150 people.

“You all know about the [sic] in Charlottesville over the summer, but I don’t know if you read the signs they held up,” Chemerinsky opined about how demonstrations have gotten nastier. “I remember seeing one sign that said, ‘Kikes belong in the oven.’ I am 64 years old, but I don’t remember ever seeing a sign like that held up in public before.”

Chemerinsky went on to acknowledge his understanding that there are limits to speech, unprotected forms like child pornography and false advertising. He spoke in detail about the Brandenburg Test, which requires that the speech promotes imminent illegal activity and is meant to incite illegal activity, in order to not be protected.

“Imagine a controversial speaker comes onto campus. Milo Yiannopoulos,” he said, providing a real-life application of the Brandenburg Test. “And imagine that an angry group reacts against him in acts of violence. Yiannopoulos cannot be held responsible for that.”

Chemerinsky stated that campuses can still use time, place, and manner restrictions on speech as long as there are other locations provided for expression in order to promote the goal of an educational institution: to promote learning and research. He argues that colleges can require events to be held in locations where they can provide better security measures in order to fulfill their legal obligation of student and faculty safety.

“If the Chancellor of UC Berkeley tried to prevent Milo Yiannopoulos from speaking on campus, she would be sued and she would lose,” Chemerinsky said while supporting his argument that public school must protect free speech. He cited Snyder v. Phelps, a Supreme Court case that sided with the Westboro Baptist Church over its picketing of military funerals to protest LGBTQIA rights. They decided that the speech could not be restricted because it was on public property.

Chemerinsky also discussed the thin line between protected and unprotected speech and emphasized that government should not regulate hate speech because then it increases government’s ability to limit other forms of speech. “You can express an idea, but you can’t go and beat somebody up,” Chemerinsky stated while discussing the difference between hate speech and hate crimes. “And if you’re beating somebody up, motivated by hate, the Supreme Court says unanimously that can be punished.”

He differed in opinion from the previous free speech talk, where Seton Hall Law School Professor Thomas Healy conceded that heckling is still free speech. Chemerinsky believes that heckling should not be considered free speech because it can suppress speech and prevent a speaker from speaking.

Chemerinsky was appointed as a co-chair of the advisory board that governs the new UC National Center for Free Speech and Civic Engagement in October. The Free Speech Center addresses students’ changing relationship with the First Amendment and selected its first class of 10 fellows in February, 2018.

Ethan Coston is a staff writer for The Triton.