Analysis: Berkeley Anti-Israel Activist Claims First Amendment Right To Disrupt Dinner Event at Dean’s Home
The student had no First Amendment right to protest on private property, but the property owners likewise had no right to expel her by force, according to the legal experts
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:
This longer video of the confrontation at Dean Chemerinsky and Professor Fisk’s home shows in more detail just how insufferable these students are.
And Chemerinsky has confirmed it’s a private residence (see below), which, as you can see, they were asked to leave repeatedly. pic.twitter.com/ojbaK1fnuM
— Steve McGuire (@sfmcguire79) April 11, 2024
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:
For those struggling to imagine why Chemerinsky and his wife might feel threatened, recall that the trespasser had been accusing him of genocide and had been circulating images like these. I would be shocked if he hadn’t received numerous death threats as a direct result. pic.twitter.com/CEcnV3tzQW
— Laura Powell (@LauraPowellEsq) April 11, 2024
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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Comments
It might have been a better outcome if Fisk had called police and gotten Afaneh arrested and convicted of criminal trespass. Chemerinsky and Fisk probably had no ill will toward Afaneh other than to have her stop disrupting the event.
That’s exactly what you must do with these people for your own protection. You can’t just be civil once they’ve broken the rules of civility.
I bet if people started beating the f*ck out of them this crap would stop.
this.
Only if they legally got away with it. Right now, only the Left can deliver beatings and get away with it.
“I”m sorry officer, is there a problem? This woman criminally trespassed upon my private property and considering the actions of these Palestinian terrorist advocates I was afraid for my life and the lives and well being of my guests. So I took action to prevent any such violent criminal actions. So again, is there a problem?”
End of discussion.
He should have told her to leave clearly. Informed her she was trespassing. Then he should have knocked her on her ass. You are allowed to use force to remove trespassers. You do not need the police. In MO this could quickly be a lethal force event for the entitled little bitch and her friends. I would have knocked the shit out of her.
Absolutely. What is this crap?:
“The NLG statement also condemned the use of “physical force against the law student.”
The National Lawyers’ Guild is a well-known communist front organization. Ask any LEGITIMATE lawyer and they’ll tell you you have the legal right to physically eject trespassers in almost all, if not all states.
I don’t have a lot of sympathy. Left on left catfight.
These idiots don’t understand what private property means. On my property, your first amendment only guarantees you get to leave when we disagree. Push your communist garbage on my property and I’ll kick your ass off.
No, they understand. They disagree with your right to private property.
They can disagree with my leetle fren’.
So, basically Berkeley failed to teach this young woman what the First Amendment is and how it works.
Presumably, all those “legal experts” graduated from Berkeley, too, since they seem to think I can’t remove someone from my own property. (They also fail to understand that failure in removing them from my property means they may remain on my property… for the rest of their existence.
I guess the lesson of being a gracious guest while in the company of a generous host was never taught to these people.
Regardless, your freedom of speech ends at my property line.
^This^
Courtesy and hospitality are a mutual agreement about how you will all behave. Once it’s broken, no one is bound.
“The landowner must afford the trespasser a reasonable time to leave the landowner’s property.”
Reasonable time equals the time it takes to immediately turn around and walk out when told to leave the premises.
“The use of physical force against a trespasser is limited to responding to threats of violence by the trespasser.”
The student was at a minimum disturbing the peace in addition to trespassing. Bouncers boot people out the door all the time for disturbing the peace up in bars, violently or not.
“The use of physical force against a trespasser is limited to responding to threats of violence by the trespasser.”
I am not sure I agree with this. I think you are entitled to use reasonable force in defence of property such as to eject an unwanted trespasser. What’s reasonable force depends on the nature of the threat.
Here, if the host thought she could remove the trespasser without causing any kind of injury, I think that could be termed reasonable. The analogy to bouncers at bars is apt.
However, I would agree that calling the police would perhaps be a more prudent way of getting the trespasser removed without the possibility of being subject to litigation and/or potential liability.
Forget it, Jake. It’s Californiastan.
A good point about bouncers — and they aren’t necessarily gentle about showing a person the door. The price of ungracious behavior in that setting is some cuts and scrapes as you glide across the brickwork of the alley.
So too, an ‘activist’ who behaves boorishly at a dinner party, refuses to conform her behavior to expectations, and refuses to leave when asked to do so, should became intimately acquainted with the texture of the sidewalk concrete.
This need only happen a couple of times, and even the dumbest activist (let’s not plumb the depths of that) would get the message.
CA seems to have odd notions of the rights of property ownership. The power to occupy also contains the right to exclude and once an individual has been ordered to depart they either begin to comply or they refuse. That failure to comply is itself an escalation of events. While calling LEO is a good idea the property owner is under no obligation to meekly wait for them to arrive. Some States, especially in the Southeast, authorize Citizens to detain misdemeanor offenders. That can spiral quickly if the trespassing individual refuses to submit to detention. Better all around if no one trespasses and if they do so that they immediately and expeditiously depart when ordered off the property before events turn for the worse.
Islam is a cancer in the West.
Islam is cancer everywhere.
National Lawyers Guild… listening to them on Pacifica Radio LA….. no such thing as property rights. So this fits … as all property belongs to The People.
So a couple of progressive/leftist professors have a congratulatory dinner. One one of their student invitees uses the tactics they teach to make her point. Talking to you Saul Alinskey. They don’t like the point and force her out, while she is screaming about her rights. As taught by aforementioned professors. I know she, the posters and her cohorts are antisemitic. I care about the antisemitism, I don’t care about the professors hoisted on their own petard. FJB
Berkeley is logic free zone.
If I may offer a thought. If a Muslim can enter private property [not public] and claim that they have a right to stay and act as they please and not be removed because of their First Amendment rights [defined by the courts as Grievance, Religion, Assembly, Speech, and Petition] then does it not follow that any other person can enter and remain in the private property of a Muslim and act as they please and also not be removed? If not, why not?
Subotai Bahadur
Sure. Give it a try. Let us know how it goes.
Know whom you are inviting into your home. Professor C brought this on himself.
It’s California…tresspassing has morphed into squatting
Since when? Is that really the law in California?! Everywhere I’ve ever heard of, if a trespasser refuses to leave the property owner is entitled to use reasonable force to eject him.
A man’s home is his castle. She should be thankful he didn’t pour boiling oil on her.
Castle or not, the law still applies there. Boiling oil would not be reasonable force. But the force actually used seems completely reasonable to evict a trespasser who is refusing to leave when instructed to do so.
While I completely sympathize with Chemerinsky on this one, this is his law school, as I reminded him in an email exchange last year when his students refused to invite or listen to pro-Zionist speakers on campus. It’s the same kind of law school as what he created at UC Irvine when he founded that school-a left-wing activist training ground. Chemerinsky is a classic liberal who is no friend to Israel and who has been missing in action in the fight against campus anti-Semitism. The chickens have come home to roost.