Althouse: "According to FIRE Campus Advocacy Rights Director Alex Morey, under the First Amendment, Chemerinsky’s 3L dinner is considered a limited public forum..."

April 15, 2024

"According to FIRE Campus Advocacy Rights Director Alex Morey, under the First Amendment, Chemerinsky’s 3L dinner is considered a limited public forum..."

"... in which the government, or individual or group in charge of the forum, can open up the forum for speech in any way they decide. Morey said Chemerinsky and his wife, Catherine Fisk, opened up a forum and were able to determine its limits in the case of the 3L dinner.... 'This is a situation where students have to recognize that yes, they have First Amendment rights, but they also know those rights come with certain specific limitations,' Morey said... 'Schools should exact some kind of punishment on students who engage in misconduct, but I think that some level of understanding can be given when students are trying to exercise their First Amendment rights in good faith but are still learning how to do so,' Morey said. 'It’s a delicate balance, but we hope Berkeley can figure out the right way to find that balance.'"

From "FIRE calls Chemerinsky 3L dinner limited public forum, says free speech has limitations" (The Daily Californian/Berkeley's News)

71 comments:

Sebastian said...: "when students are trying to exercise their First Amendment rights in good faith"

LOL. FIRE beclowns itself here.; 4/15/24, 10:49 AM
Spiros said...: Why are 25 year olds still learning how to be courteous and polite? These students were rude, confrontational and crazy. I think their behavior has nothing to do with the rightness of their cause (because they are wrong) but rather the amount of time they spend on their phones. The more time these "kids" spend on their devices, the bigger their "deficit in social skill development" (I.e., they are rude anti-social jerks with no friends). These kids are literally exhibiting autism spectrum disorder-like symptoms -- rigid thinking, lack of empathy, repetitive behavior and so on.

Our future leaders are going to be vile.; 4/15/24, 10:54 AM
RCOCEAN II said...: There was no misconduct unless the student was specifically told not to do a protest. In any case, that doesn't justify Ms. Fisk charging in and assaulting the student by trying to take away her microphone.

Where is the common sense? According to Prof Chemoringksy the meeting was similar to that held at Berkeley Law - which means a Professor has no right to manhandle a student. You can ask a student to leave the class and if they don't, you can call security.

And why screech about "This is my Home" if it was a semi-public forum sponsered and paid for by the college? The woman wasn't an ungrateful guest taking advantage. This wasn't wasn't a dinner party full of invited guests.; 4/15/24, 10:57 AM
Rich said...: Look if Erwin Chemerinsky didn’t want to be caricatured with the blood of Palestinian children on his lips he shouldn’t have been so Jewish near modern law students.; 4/15/24, 11:07 AM
Readering said...: Delicate balance? BS. She knew she was being transgressive. Just didn't expect hostess to grab her mike.; 4/15/24, 11:21 AM
rehajm said...: What authority is this FIRE organization? More ‘experts say…’

Experts say the experts at FIRE are a bag of dicks and should FOAD…; 4/15/24, 11:27 AM
rehajm said...: If we resign rule of law to these anonymous authorities the whole thing is over…; 4/15/24, 11:28 AM
Aggie said...: ..."Schools should exact some kind of punishment on students who engage in misconduct, but I think that some level of understanding can be given when students are trying to exercise their First Amendment rights in good faith..."

'Good faith', you say? 'Death to Israel, Death to America', you say - Infidel?; 4/15/24, 11:29 AM
traditionalguy said...: Good old private property that creates peace by establishing boundaries. It’s the nemesis of all Marxist Progs that are done for UNLESS they declare lawlessness and riot, loot and attack innocents as elite Bolsheviks do.; 4/15/24, 11:30 AM
loudogblog said...: One thing I have not seen any discussion of is where the wireless microphone came from.

Wireless mics can be very expensive.

If the mic belonged to the school, do the students have a right to use it, too?

If the mic was rented by the party's hosts, then taking it without permission could be considered grand theft.; 4/15/24, 11:39 AM
tim maguire said...: I'm not a fan of in loco parentis, I think it's mostly a bullshit concept schools use to engage in disciplinary over-reach. Especially here where you are talking about adults interacting on private property not belonging to the school. It's a matter for the police and the UC Berkeley administration has little or nothing to do with it.; 4/15/24, 11:40 AM
Hubert the Infant said...: Two obvious things come to mind. First, why should it matter whether or not the protesting student was acting in good faith? I would hope that an organization purportedly in favor of the Constitution would know better. Second, is there any doubt that this student was not acting in good faith? Her background belies her claim that her home was stolen. Further, she was targeting the Dean solely because of his religion. It used to be the case that doing that was frowned upon in the U.S.; 4/15/24, 12:22 PM
Wince said...: In the words of Ronald Reagan, who "paid for the microphone" the protester was using?; 4/15/24, 12:37 PM
Smilin' Jack said...: So the First Amendment enshrines a right to trespass now? Is that a new right evolved from our Living Constitution, or has it been there all along, only recently discovered hiding in one of those penumbra things?; 4/15/24, 12:57 PM
Leslie Graves said...: Chemerinsky/Fisk invited all the 3Ls over.

They must have known that the 3Ls included some pro-Palestinian activists. Or is it possible that this never occurred to them?

At any rate, given that the 3L dinner was in a gray area of public/private -- grayness that Alex Morey captures with the phrase "limited public forum" -- it would have behooved Chemerinsky/Fisk to articulate to the invited guests in advance what they were up for, versus what they did not wish to have happen during the party.

I associate attorneys with risk management. It doesn't seem like it occurred to Chemerinsky/Fisk to do some risk management here by setting out whatever guidelines they wanted in writing and in advance.

That's a puzzling oversight.; 4/15/24, 1:05 PM
JAORE said...: 3L's are still learning how to "exercise their First Amendment rights ...in good faith". Lord a mercy, what did they study for the first two years?; 4/15/24, 1:34 PM
JIM said...: Leftists see free speech as a one way street, their speech is good, opposing speech is bad. Debate is not allowed. Heckling, theatrics, and violence are encouraged when they silence dissent or opposition.; 4/15/24, 1:35 PM
The Vault Dweller said...: The video I've seen of the event makes me think this is more a kerfuffle than anything. If the worst excesses we had to deal with were what those students did we wouldn't have any real problems.; 4/15/24, 1:40 PM
Narr said...: Big protests and disruptions in NYC, SF, and other cities.

Not much ambiguity either, unlike the Chemerinsky contretemps.; 4/15/24, 1:48 PM
mikee said...: Come to a public gathering and start proclaiming Palestinian policy when that is not the purpose of the gathering, and refuse to behave politely when asked to stop, and everyone there should consider you a potential threat to their lives and take appropriate action to avoid possible explosions, shootings, knifings, drive-overs, hostage taking and other violence. Past behavior of activists for a cause can be used to predict future behavior of activists for that cause.

This Palestinian wasn't yelling "Fire" in a movie theather, but her predecessors among Palestinians all too often literally have opened fire in public gatherings. Your group doesn't get to be a wolf pack and prey on innocents, then howl like a wolf for effect but without biting, then act upset when the villagers toss you out on your keister.; 4/15/24, 1:50 PM
mikee said...: On the other hand, FIRE is probably correct about the First Amendment applicability here. They usually are correct in their analyses of such situations.; 4/15/24, 1:52 PM
Michael said...: Why is it not clear who paid for the dinner? Seems like a simple fact someone could tell us. That for me is the crux. If the university paid one cent into the proceeding, then there are some 1A protections there. Am I right Professor Althouse?

If no public money was involved then it is a private event in a private home.

Either way, Malak Afaneh is an asshole.; 4/15/24, 2:00 PM
Rabel said...: Pretty sure the student brought in the microphone. It has a wireless function but also a built in speaker, so no sound system was needed.; 4/15/24, 2:00 PM
Jamie said...: Rich @11:07, that made me LOL - thank you for that little moment!

(Not that the subject is funny, of course.); 4/15/24, 2:02 PM
Michelle Dulak Thomson said...: Yes, Leslie, but how is it that a bunch of 3Ls at one of the nation's top law schools don't seem to know anything about the First Amendment? The girl with the cordless mic didn't say anything about limited public fora; she just asserted a right to speak, on First Amendment grounds. Whereupon Chemerinsky said, not unnaturally, "But you're on my property. At a private event. To which you were invited. On reasonable and generally understood grounds of good conduct."

Suppose Ms. Hijab had instead thrown a lot of toxic chemicals into Chemerinsky's fish pond (I am assuming, for the purposes of argument, that Chemerinsky has a fish pond) as a protest against climate change? Or stripped naked and danced against Alabama's IVF mess before the multitude? Are those protests OK as well?

You say, well, Chemerinsky should've known that some of the 3Ls were rabidly pro-Hamas. Of course he does; every last one of the (formerly-Boalt) law student groups rallied to make sure that no Jewish speakers would be allowed in the law school. That's totes cool, of course, b/c Jews are completely unrepresented in the legal profession. You'd never even miss 'em.; 4/15/24, 2:13 PM
The Vault Dweller said...: Blogger Wince said...
In the words of Ronald Reagan, who "paid for the microphone" the protester was using?

Based on the video of it I saw yesterday, it made me think the protestor brought her own microphone. In the video she refers to it as 'my' microphone rather than 'the' microphone. And that didn't seem to be challenged. By Chemerensky or his wife.; 4/15/24, 2:13 PM
Rick67 said...: when students are trying to exercise their First Amendment rights in good faith but are still learning how to do so

"Students" who are "still learning" how to exercise First Amendment rights in "good faith". Third year law students. Invited to a get-together at professor's home because of Covid concerns when they were first year students. Who think *that* is the time and place to stand up and start making a speech. And when a host asks her to leave proceeds to complain about being "groped" and "assaulted" and hey she's a Muslim woman who can't be touched. None of which makes a lick of sense.

Oh and she's the leader of a group that puts up posters showing this professor with a bloody knife and fork. That's nasty. Not to mention anti-semitic.

"Good faith"? Not seeing any.; 4/15/24, 2:19 PM
The Vault Dweller said...: And why screech about "This is my Home"

I think that was meant to be an appeal to politeness and civility. Which I don't think is necessarily civility bullshit because I think there is a widely followed rule to not bring up contentious issues at events like dinner parties or Thanksgiving gatherings etc.; 4/15/24, 2:20 PM
Michael said...: How stupid do you have to be to believe a law professor has anything to do with the investments of his university. Were I the hostess I would have slapped the shit out of her. That would be a real “assault”. But warranted.; 4/15/24, 2:34 PM
TickTock said...: Just for kicks:
TickTock: What is a "limited public forum" for which the First Amendment to the US Constitution applies? Where did this doctrine originate? And has it been held to apply to Universities that receive government funding? Where possible, cite cases and sources.
ChatGPT ver 4:
The concept of a "limited public forum" relates to the classifications under First Amendment law in the United States, governing the extent of free speech rights in different types of public property or government-controlled venues.
Definition of Limited Public Forum
A "limited public forum," also known as a "designated public forum," is a category of public property that the government has intentionally opened to certain groups or for the discussion of certain topics. Unlike traditional public forums (like parks or streets), where expressive activities are generally protected, a limited public forum is created by purposeful governmental action to open a non-traditional forum for expressive activity. The government can control access to these forums based on subject matter and speaker identity, as long as the restrictions are reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.
Origin of the Doctrine
The doctrine of the limited public forum originated from Supreme Court interpretations of the First Amendment, seeking to balance government interests and free speech rights. Key cases include:
Perry Education Association v. Perry Local Educators' Association (1983) - This case helped establish the distinctions between the types of forums and clarified that even in a nonpublic forum, the government's restrictions on speech must be reasonable and not an effort to suppress expression because of disagreement with the speaker’s view. TT: This is a real case involving access to a school mail delivery system run on government pjroperty.
Widmar v. Vincent (1981) - In this case, the Supreme Court ruled that a university that made its facilities generally available to student groups could not close its facilities to a student group wishing to use the space for religious worship, as it had created a limited public forum. TT: Also a real case.
Application to Universities
Regarding universities, particularly those receiving government funding, several cases have explored whether the principles of limited public forums apply. The doctrine generally holds that if a university opens up its facilities for use by student groups or outside entities, it cannot discriminate against particular groups based on the content or viewpoint of their expression:
Rosenberger v. Rector and Visitors of the University of Virginia (1995) - The Supreme Court held that if a university provides funding to student groups from mandatory student fees, it must do so on a viewpoint-neutral basis, reinforcing the concept of a limited public forum within public universities. TT: Also a real case
Board of Regents of the University of Wisconsin System v. Southworth (2000) - Here, the Court upheld a university’s student fee system that was viewpoint neutral, further supporting non-discriminatory funding in university settings seen as limited public forums. TT: This too is a real case.
These cases affirm that the limited public forum doctrine applies to universities, especially in scenarios where the universities have opened their facilities or resources to a broad range of student activities. This application ensures that universities respect free speech principles while managing their facilities and distributing resources.
TT: One year ago, chatgpt would have gotten most if not all of these citations wrong. I won’t vouch for the accuracy of its descriptions since I have not yet read the cases. However, I do question Mr. Morey’s conclusions, particularly if the Chemerinsky home is not on University land, and the invites were not open to all 3Ls.; 4/15/24, 2:38 PM
Butkus51 said...: Theres not enough popcorn.; 4/15/24, 2:49 PM
Rusty said...: Hmmm. What are "good manners" and why are they important?
What are the responsibilities of a "guest"?; 4/15/24, 2:58 PM
Mark said...: A private home is not public in any sense of the word.; 4/15/24, 3:02 PM
Oh Yea said...: 3L in “good faith” doesn’t understand limits to First Amendment?; 4/15/24, 3:08 PM
MadisonMan said...: when students are trying to exercise their First Amendment rights in good faith
Either they weren't exercising in good faith, or this shows just how feeble Cal Berkeley Law's 1st Amendment instruction is!; 4/15/24, 3:12 PM
Oligonicella said...: tim maguire:
I'm not a fan of in loco parentis, I think it's mostly a bullshit concept schools use to engage in disciplinary over-reach.

Got that right. I went and finished a degree for the hell of having it when I was 60 or so.

Even with someone older than they are, they think it's their job to 'mold' and 'correct' your morals and philosophies. Even in high school I had no problem with challenging an instructors errors.

And pompous. A new course they jammed on everyone was basically Intro to Computers. I had 35yrs in IT. This was how to move and click and swipe, etc. After first I went to head and told him this was ridiculous and got "We need to make sure our students can use the computers."
...
"Baloney. I've worked on computers longer than you are old. You guys just want the $600."
...
Went back to the instructor and took the final exam the next day and aced it. Elementary stuff.

I was not a beloved student.

Apparently I was still a little ticked about that.; 4/15/24, 3:16 PM
Oligonicella said...: Leslie Graves:
Or is it possible that this never occurred to them?

I'd wager too intentionally naive to accept it as possible. Kinda like the Gays for Palestine idiots.; 4/15/24, 3:20 PM
James K said...: Chemerinsky/Fisk invited all the 3Ls over.

They must have known that the 3Ls included some pro-Palestinian activists. Or is it possible that this never occurred to them?

Clarice Feldman in her weekly "Pieces" column at American Thinker noted the echoes of Leonard Bernstein's party for the Black Panthers, as memorialized in Tom Wolfe's "Radical Chic," especially given the leftist credentials of the hosts. Still, it's great fun to see left on left warfare.; 4/15/24, 3:20 PM
gadfly said...: It took me a while to discover that "3L" is a third (final) year law school student in the United States. I was spinning around trying to relate a three-course meal to "3L."; 4/15/24, 3:28 PM
Jim Gust said...: At a minimum, this woman should have the incident recorded on her permanent law school record. At a maximum, my preference, she should be expelled immediately. She knew full well what norms she was violating.; 4/15/24, 3:31 PM
Jim at said...: Our future leaders are going to be vile.

As opposed to our current ones?; 4/15/24, 3:36 PM
Real American said...: Expel them all.; 4/15/24, 4:07 PM
Joe Smith said...: When average people get fed up with all of this bullshit; disrupting traffic, airports, meetings, etc., it will be a great day, and orthopedic surgeons will make a fortune...; 4/15/24, 4:31 PM
Mikey NTH said...: What if the invitation to attend the dinner did not extend to haranguing the host and guests? What if the invitation to attend was revoked by the host?; 4/15/24, 4:54 PM
The Godfather said...: Jim (3:36 pm): "Our future leaders are going to be vile."

As opposed to our current ones?

You don't think it could get worse, Comrade?; 4/15/24, 5:03 PM
The Godfather said...: "Our future leaders are going to be vile."

Jim (3:36 pm): As opposed to our current ones?

You don't think it could get worse, Comrade?; 4/15/24, 5:04 PM
Iman said...: Reap what you have nurtured, Chemerinsky and Fisk! Be proud.; 4/15/24, 5:25 PM
rsbsail said...: You know, common sense used to inform how people acted in these circumstances. An event sponsored by a university on campus: sure, that is fair game. An event at a private home: no way.

These protesters are only hurting their cause. The more they do this sort of crap, such as blocking roads and such, the more I say to hell with them and their cause.; 4/15/24, 5:49 PM
typingtalker said...: " ... but I think that some level of understanding can be given when students are trying to exercise their First Amendment rights in good faith but are still learning how to do so ... "

I'll bet they don't give them a pass while the students are learning where they are permitted and not permitted to park on campus.; 4/15/24, 6:06 PM
Darleen said...: These protesters are only hurting their cause. The more they do this sort of crap, such as blocking roads and such

What you must keep in mind, these pro-Hamas Jewhaters have no intentions of persuading you to their cause. They, like the brownshirts or the Red Guard before them, are into intimidating you to submit to their demands. "Nice home you got here, Dean, a shame if it were to burn to the ground one night."; 4/15/24, 6:32 PM
Mason G said...: "The more they do this sort of crap, such as blocking roads and such, the more I say to hell with them and their cause."

Hard to argue with that.; 4/15/24, 6:38 PM
Skeptical Voter said...: RC Ocean says that Professor Fisk--the lady who owned the home and the lawn on which the protestor was standing "had no right to charge in and assault the student by taking her microphone".

Well maybe--but when someone is acting like a poltroon, maybe the appropriate method would be to use the technique when an unwanted dog shows up on your lawn. Turn the water hose on them. Or in this case "her".

Now RC before you get your tighty whities all up in a knot by suggesting I compared the young woman to a dog --I didn't. I called her a poltroon--a human with no manners or social graces. But if you can't take the microphone away, turn the water hose on her.; 4/15/24, 7:05 PM
Howard said...: Filed under free speech we don't like.; 4/15/24, 7:44 PM
Narayanan said...: according to Clarice Feldman
source of mic and PA system : law student Malak Afaneh arrived wrapped in a keffiyeh with her own microphone and PA equipment.; 4/15/24, 8:07 PM
Narayanan said...: Blogger Iman said...
Reap what you have nurtured, Chemerinsky and Fisk! Be proud.
=================
'from Feldman report'
In sum, there are too many Islamists and leftists working together to remove the dean and his wife to expect this contretemps in a backyard will quickly vanish, with Chemerinsky and Fisk victorious.; 4/15/24, 8:15 PM
RCOCEAN II said...: This event was paid for by the University. This event was paid for by the University.

There was no "private event" at a "Private home".; 4/15/24, 8:18 PM
Narayanan said...: Blogger Mark said...
A private home is not public in any sense of the word.
=================
does CA law ?against? prosecuting under$900 apply to things 'taken' from homes?; 4/15/24, 8:20 PM
Narayanan said...: he shouldn’t have been so Jewish near modern law students.
==========
asking important question at dinner time

wondering what was the menu items? was anything not halal? to tick off islamist?; 4/15/24, 8:32 PM
n.n said...: Limited public forum like the Capitol a.k.a. "The People's House". Is California a Capitol punishment jurisdiction? The residents invariably subscribe to the Pro-Choice ethical religion. They could relieve their "burden" and no liberal would have the audacity to bray their discontent.; 4/15/24, 10:15 PM
n.n said...: A private event with limited public access under House... I mean, house rules, right?; 4/15/24, 10:16 PM
TickTock said...: Rcocean 11. Link to source please.; 4/15/24, 10:52 PM
Mrs. Greenjeans said...: Because nothing says "Decline of the West" like another fat-ass Moslem chick in a bathrobe exploiting the hospitality of her intellectual and social superiors.; 4/16/24, 1:19 AM
Tina Trent said...: As I said, students aren't some special class of citizens. Nor are professors. When they break the law -- and forget this irelevant university bullshit Ann: universities aren't separate countries -- they break the law -- the real law. The law that everyone must abide by. Who cares what the university said or didn't say? That's just an internal disciplinary measure irrelevant to what happenned here.

They broke the law law.

And the're not children either. And they've purportedly been studying this very topic for years. So why does my auto mechanic understand that they broke the law, but these precious little fledglings don't? At their age, I had been supporting myself for five years. Other youths are parents, or soldiers, or police.

Gee, imagine if the police behaved like this in Chemerisky's little palace. He's made enough of them homeless, jobless, and unable to feed their own kids.

One group of fascists battles another group of fascists. May they all lose.; 4/16/24, 6:18 AM
Tina Trent said...: It's not a grey area, Leslie. Now, what the school does to them, likely nothing, does rely on who bought the hummus.

But no university can declare that some house is off limits to the law. The real law. The one that applies to all of us.; 4/16/24, 6:26 AM
Tina Trent said...: And FIRE needs to get a spokesperson who understands the law, which is his job. No more bennies from me, pal.; 4/16/24, 6:28 AM
Left Bank of the Charles said...: Limited public forum? Chemerinsky’s statement makes the eyebrow-raising assertion, “Our home is not a forum for free speech.” Of course, he means to except himself and perhaps his wife from that assertion.

Did his invitation as a California state official, dean of the law school at a state university, turn their home (really just their backyard) into a limited public forum? If so, that opens the door to questions. What other speech was permitted at these events, was the suppressed speech comparable to what was allowed, and if so was his and his wife’s suppression of this speaker viewpoint neutral?

One can see why Chemerinsky would like to say this was a private event at a private home, as that forecloses an option for a potential lawsuit against him and his wife. But it also forecloses imposing discipline on the students for disrupting a university activity.; 4/16/24, 6:55 AM
wildswan said...: If the student had come in and begun either pole dancing or polemical speechifying, she could have been ejected, not because either pole dancing or polemical speechifying is wrong, but because it was the wrong time and place for either. It was a dinner on private property at which no one was making polemical speeches (or pole dancing) and so, based on the "limited public forum" concept as expounded by ChatGPT (TikTok 2:38 pm) this student was out of line. She was not being being suppressed for her viewpoint on either Palestine or different types of dancing but for being polemical at a non-polemical gathering.; 4/16/24, 7:52 AM
Tina Trent said...: Not true, Michael. A cheese plate does not suspend the law law.; 4/16/24, 10:01 AM
RigelDog said...: "One thing I have not seen any discussion of is where the wireless microphone came from."

I raised the same question. If it's the student's property, then Fisk's attempt to remove it could be construed as a robbery, technically. If it was not the student's property, then Fisk has a right to use mild force to reclaim it.; 4/16/24, 10:30 AM
Narayanan said...: Blogger RigelDog said...

If it's the student's property, then Fisk's attempt to remove it could be construed as a robbery, technically.
================
makes my Q relevant
does CA law ?against? prosecuting under$900 apply to things 'taken' from homes?; 4/16/24, 10:54 AM
Nice said...: "This event was paid for by the University. "

Do we know this for sure? There are different levels of sponsorship. Pick one:

1. University holds a public event, on a public campus, and public invited. University Security utilized.

2. University holds a private event, and rents out a Private Venue, Private Guest List. University Security, or Private security, may be utilized, both financed by University. University posts an Insurance Bond in case of any damages to Private Venue, under the terms of Event Rental Agreement.

3. A University Employee, representing that University, decides to hold a Private Event at his private home, private guest list consisting of 3L. This employee bills the University for refreshments, which the University agrees to reimburse as a business expense. The University agrees to publicize the Employee's private event, and any expenses related to publicity. Insurance waivers, Security reimbursement are never discussed, as neither the Employee, nor the University raised this issue.; 4/16/24, 11:51 AM