There is an interesting free speech fight brewing at the University of California Berkeley Law School after nine student groups banned any speakers that support Israel or Zionism. The resolution adopted by the groups bar anyone who supports “Zionism, the apartheid state of Israel, and the occupation of Palestine.” Berkeley Law’s Dean Erwin Chemerinsky, a self-proclaimed Zionist, has observed that he himself would be banned from speaking to the groups under this resolution.
The bylaw, drafted by UC Berkeley’s Law Students for Justice in Palestine (LSJP), stated that such speakers endanger “the safety and welfare of Palestinian students on campus.”
The student groups who adopted the bylaw include the Berkeley Law Muslim Student Association, Middle Eastern and North African Law Students Association, Womxn of Color Collective, Asian Pacific American Law Students Association, Queer Caucus, Community Defense Project, Women of Berkeley Law, and Law Students of African Descent.
The controversy raises a conflict between anti-discrimination policies and free speech. These groups clearly have a right to decide who they will invite as speakers. However, the resolution raises the countervailing question of whether the exclusion is discriminatory. Various groups have denounced the policy as antisemitic and note that the school would not tolerate groups imposing a racial exclusion on speakers.
This is a public university that is subject to the First Amendment. In 2019 San Francisco State University settled a lawsuit of Jewish students allegedly blocked from participating in a human rights fair because of their Zionist views.
What is interesting is that these liberal groups are asserting an analogous free speech right invoked by bakers, web designers, and others who have refused services to same-sex weddings. This term the Supreme Court will consider 303 Creative v. Elenis involving a graphic artist who declined to provide services to couples celebrating same-sex marriages on religious grounds. While these cases involve public accommodation laws in the selling of products, the underlying right is based on the right to refuse to engage in creative enterprises that contradict religious or political views.
What is also ironic is that schools like Berkeley effectively impose such exclusions on other speakers. It is rare for top schools to invite conservative or libertarian speakers. When they do, these speakers are often subject to cancel campaigns or disruptions to prevent them from being heard. There is a de facto exclusion of many conservative and libertarian speakers.
I believe that these groups have a right to pick their own speakers (as opposed to a school barring Jewish groups from a human rights fair or event). Clearly, they could effectively impose such an exclusion by simply not inviting such speakers. This is likely to be viewed differently from the SFSU case in that sense.
Yet, having a right to do something does not make it right. The resolution shows an intolerance for opposing views that has become a common feature on our campuses. These groups should welcome such debate and dialogue.
What is particularly concerning is the use of the common claim that free speech is harmful. The view of speech as harmful is now dominant on many faculties. I recently wrote on this issue in an article entitled “Harm and Hegemony: The Decline of Free Speech in the United States.”
It is also worth noting that the inclusion of an LGBT organization would exclude most Jewish students who may feel marginalized at the school due to their sexuality or identity. They would likely want to join such groups but cannot endorse an exclusion that they consider antisemitic.
The students groups, in my view, have the edge on any free speech court challenge, but they are dead wrong on the use of that right. This is only the latest example of the growing intolerance for opposing views that now characterizes higher education. The difference is that this exclusion has outraged many on the left. Hopefully, it will prompt greater concern for the overall loss of diversity of viewpoints on our campuses.