Muzzling Free Speech at Berkeley Law School

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It is not an uncommon occurrence at universities of certain unapproved speech being suppressed because it does not conform to prevailing ideologies. As part of what is now labeled the “cancel culture,” the purging of thought and ideas that conflict with liberal notions or the radical ravings of social justice warriors, this unfortunate trend has shown itself at law schools as well, where lawyers in training have felt no compunction when they seek to limit the speech of others with whom they disagree.

In March, for instance, activist students at UC Hastings School of Law vigorously disrupted the appearance of conservative legal scholar Ilya Shapiro at an event organized by the Federalist Society. Shapiro, incoming Executive Director of Georgetown’s Center for the Constitution, it will be remembered, experienced the collective wrath and opprobrium of his own school when he tweeted comments criticizing Joe Biden’s pledge to nominate a black woman as the new Supreme Court justice.

When Shapiro arrived to speak, activist students associated with Hastings’ BLSA had already planned to express their dissatisfaction with Shapiro’s views by shutting down the event and utilizing the “heckler’s veto” to silence him for his ideological transgressions. During the entire 53-minute event, student demonstrators in the classroom blocked the podium while Shapiro tried to speak and screamed “Black lawyers matter” while pounding the desks and drowning out any speech.

At Yale Law School, some 120 students seriously disrupted another March event which featured Kristen Waggoner, lead counsel for the conservative Alliance Defending Freedom (ADF), appearing on a panel to discuss (ironically, it turns out) free speech issues. Once it had been predetermined that the organization for which Waggoner is lead counsel was anti-gay, it no longer mattered what she would say at the event. The moral scolds at Yale Law School had already decided she should be canceled and forbidden from giving her opinions about anything at all and they loudly and aggressively shut down her speech.

The latest example of this unfortunate trend took place at Berkeley Law School where an activist student group, Law Students for Justice in Palestine (LSJP), initiated a campaign to convince other of the 100 student organizations at the school to adopt an anti-Israel bylaw the group had pre-written.

“LSJP is so excited to announce that multiple student affinity groups and clubs at Berkeley Law have adopted a pro-Palestine bylaw divesting all funds from institutions and companies complicit in the occupation of Palestine, and banning future use of funds towards such companies!” the group wrote in an August Instagram post. “LSJP is calling ALL student organizations at Berkeley Law to take an anti-racist and anti-settler colonial stand and adopt the bylaw into their constitutions ASAP!”

In addition to urging the student groups to commit to supporting the ongoing boycott, divestment, and sanctions (BDS) campaign against Israel, the bylaw also included very troubling language that seeks to expunge any speech that might be considered pro-Israel or pro-Zionist, even speech meant to correct the many factual and historical inaccuracies in the pro-Palestinian narrative inherent in this insidious bylaw.

“[I]n the interest of protecting the safety and welfare of Palestinian students on campus,” the suggested language read, groups who adopt this bylaw “will 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.” [Emphasis added]

And in language which is Orwellian in its attempt to paint bigotry as virtue, cooperating student groups, the bylaw read, will proclaim that they are “publicly stipulating the organization’s position of anti-racism and anti-settler colonialism to speakers, ensuring that proposals for speakers emphasize the organization’s desire for equality and inclusion,” all of this for the purpose, of course, of creating “a safe and inclusive space for Palestinian students and students that are in the support of the liberation of Palestine . . . .”

In a letter LSJP posted on Instagram defending its actions after the Law School’s Dean, Erwin Chemerinsky, had mildly criticized the bylaw, the group even disingenuously suggested, in a nod to Herbert Marcuse, that free speech should only be enjoyed by the oppressed, the “marginalized” like themselves. Anyone supporting the racist, apartheid regime of Israel should not have access to the same expression, and it is perfectly reasonable, according to the group, that pro-Israeli dialogue should be excluded. “Free speech and the exchange of ideas cannot be romanticized when the byproduct of such rhetoric causes harm to marginalized communities,” the letter read. “The action of affinity groups to exercise democracy and choosing not to platform Zionists, who are either active or complicit in causing harm to Palestinians, from being platformed in their spaces is absolutely a tenable action.”

The notion that a vocal minority of self-important student ideologues can determine what views may or may not be expressed at a particular law school is not only antithetical to the purpose of a university, of course, but is vaguely fascistic by purposely or carelessly relinquishing power to a few to decide what can be said and what speech is allowed and what must be suppressed; it is what former Yale University president Bartlett Giamatti characterized as the “tyranny of group self-righteousness.”

And in the case of the Israeli/Palestinian debate, which forecloses on any speech that defends Israel and answers back to the lies, distortions, and slanders apparent in the language of the LSJP bylaw, the suppression of pro-Israel speech is even more serious. Pro-Palestinian activists would prefer that their rancid ideology is never challenged, of course, particularly since so much of their anti-Israel narrative is based on the oft-repeated but counter-factual references to the “occupation of Palestine,” Israeli “apartheid,” “colonialism,” “genocide,” and the oppression of an Arab people at the hands of Jews with no previous connection to the Holy Land who appropriated the territory of an indigenous population and replaced it with a Jewish state.

LSJP and other anti-Israel groups rattle off these phrases carelessly and frequently, but that does not make them true, and if supporters of Israel and Zionism on the Berkeley Law campus are unable to speak in defense of the Jewish state, as this insidious bylaw is designed to effect, then the falsehoods about Israel will continue unchallenged.

Any group that contends that a fantasy nation called Palestine is occupied—meaning, of course, that Israel itself is occupying a factitious sovereignty once ruled by Palestinians—is clearly ignorant of history, and the fact that this is one of LSJP’s central accusations against Israel is another reason why, for no other reason than they are lying about Israel’s history, should reveal clearly why their bigoted bylaw is both misguided and violative of academic free speech.

The Berkeley student groups who adopted this bylaw revealed a breathtaking display of pretentiousness and audacity, students who have taken it upon themselves to decide which ideas can be heard and which can, and should, be suppressed—all in the name, supposedly, of protecting the sensibilities and “safety” of Palestinians on campus while totally disregarding the feelings of Jewish students and other supporters of Israel. That is a dangerous notion, and one that contradicts at least the purported goal of universities, which is the unfettered exchange of many views in the “marketplace of ideas.”

Their ideology assumes, falsely, that some ideas are morally superior to others and that only those deserve to be expressed; that these few law students have the knowledge and insight—about all areas of inquiry—to be able to assess the value of a speaker’s intellectual contributions; and that students should be able to vet and even “cancel” speakers chosen to visit campus—especially speakers who may challenge the prevailing toxic anti-Israel activism so prevalent on campuses.

When and if they do become lawyers, these law students will have to hear competing arguments in a case, convince a judge and jury of their interpretation of an argument, and successfully argue for their client based on reason, facts, legal precedent, and intellectual ability.

As future lawyers, they will not be able to shut down and suppress the speech of others in the courtroom, including opposing counsel and a judge. They will not be able to only present their side of a case without having the other side present theirs.

And the university is a place where the same decorum and procedures for promoting views, developing intellectual arguments, providing facts and research to support one’s opinions, and inspiring academic inquiry and scholarly debate are fundamental to the advancement of learning.

That is precisely why universities exist and why any attempts to suppress certain speech—because it is currently out of favor or novel or even controversial—are antithetical to what the university represents and why, either in a law school classroom or in a courtroom, unfettered free speech is paramount, as Justice Oliver Wendell Holmes, Jr. put it, even “for the thought that we hate.”