Legal experts weighed in after a pro-Palestine UC Berkeley law student protested at her professors’ home during a private dinner. The student, Malak Afaneh, disrupted a dinner for law students hosted at the home of Jewish UC Berkeley Dean Erwin Chemerinsky and Professor Catherine Fisk to protest “genocide” in Gaza.
Afaneh was asked multiple times to leave before Fisk attempted to remove her.
Journalist Steve McGuire shared a video of the protest on Twitter:
Afaneh claimed the National Lawyers Guild (NLG) told her she had a First Amendment right to the protest. An NLG statement issued after the protest appears to confirm this without elaborating on the rationale. The NLG statement also condemned the use of “physical force against the law student.”
The NLG did not respond to an email from Legal Insurrection asking for clarification on how the First Amendment applied to this protest.
Legal Insurrection spoke to Jim Burling about the property rights dimension of protest. Burling is the Vice President of Legal Affairs at the property rights group Pacific Legal Foundation.
Burling speculated on NLG’s potential rationale. He pointed to the 1980 California Supreme Court decision Robins v. Pruneyard Shopping Center. Pruneyard held that the California state constitution provided broader protections than the First Amendment, namely the right to peaceable expression on private property open to the public at large.
Burling stated, however, that he did not believe Pruneyard applies to this case. Burling contrasted Pruneyard with this case because Pruneyard concerned a shopping mall open to the public at large, whereas Chemerinsky invited a limited number of people to his home for a limited purpose.
The free speech advocacy group FIRE analyzed the First Amendment issues and concluded that Afaneh had no First Amendment right to protest at Chemerinsky’s home.
FIRE’s analysis explored several possibilities, beginning with the application of the First Amendment to private property.
“[W]ith some very limited exceptions,” the First Amendment does not apply on private property, according to FIRE.
Some argued the dinner was a school-sponsored event hosted by government officials and that this implicated the First Amendment.
“The First Amendment applies to school-sponsored or hosted events — but that does not mean any and all speech is allowed,” according to FIRE.
To determine what speech the First Amendment protected, if any, at Chemerinsky’s home, FIRE conducted “forum analysis.”
“If the dinner party was a school-sponsored event, the type of forum would determine the level of speech restrictions allowable,” according to FIRE.
Assuming facts most favorable to Afaneh and applying forum analysis, FIRE concluded she did not have a First Amendment right to protest at Chemerinsky’s home:
[T]he party would be, at most, a limited public forum — a space traditionally not open to the public but that was opened to a limited audience for a specific purpose.And Chemerinsky and Fisk, as the government officials hosting the school event, could rightfully restrict access — i.e., limit invitations to the dinner — and restrict speech to casual dinner conversation, not political speeches on a PA system, so long as they did not discriminate on the basis of a person’s viewpoint
Afaneh likely trespassed, but using force to remove her was probably unreasonable
Burling said that a guest, as Afaneh initially was, becomes a trespasser once the landowner asks the guest to leave and the guest refuses. The landowner must afford the trespasser a reasonable time to leave the landowner’s property.
Despite Afaneh likely being a trespasser, Burling told Legal Insurrection that Chemerinsky and Fisk’s options to expel her were limited.
“Self-help” is usually unavailable, and the landowner must generally call the police to eject a trespasser, Burling said. The use of physical force against a trespasser is limited to responding to threats of violence by the trespasser.
California attorney Laura Powell speculated that Chemerinsky and Fisk might have felt threatened because of inflammatory postings about Chemerinsky and the dinner:
Chemerinsky, UC Berkeley officials condemn the disruption and antisemitism
UC Berkeley Chancellor Carol Christ was “appalled and deeply disturbed by what occurred at Dean Chemerinsky’s home last night.”
Chemerinsky posted a statement on the law school’s website expressing his “profound sadness” over the event. Chemerinsky described “an awful poster” of him distributed on social media before the dinner that called for “No dinner with Zionist Chem while Gaza starves.”
The original poster, shared on Instagram by the group Berkeley Law Students for Justice in Palestine, depicted Chemerinsky holding a bloody knife and fork. The group reposted a sanitized version without the blood, according to Washington Free Beacon reporting.
Chemerinsky called the poster “blatant antisemitism” for “invok[ing] the horrible antisemitic trope of blood libel and . . . attack[ing] me for no apparent reason other than I am Jewish.”
UC President Michael Drake and Board of Regents Chair Rich Leib echoed Chemerinsky’s allegations of antisemitism, as the law blog Original Jurisdiction reported.
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