UC Berkeley’s law school dean, Erwin Chemerinsky, and his wife, law professor Catherine Fisk, faced a bizarre scene this week when third-year students invited into their home for a dinner held a disruptive protest and refused to leave. The students accused Fisk of assault after she tried to pull a microphone from the hands of Malak Afaneh, leader of Berkeley Law Students for Justice in Palestine.
Afaneh has been featured by Berkeley on its website discussing how “As a proud Muslim immigrant, a first gen, low income student, and a survivor, I know exactly what it feels like to not have anyone in your corner.” She added:
“As leaders at Berkeley Law, we have the privilege of being in spaces where we can gain access surrounding the U.S. legal system, information that is gatekept and withheld from the very communities that often need it the most.”
It appears that one of those privileged spaces was the Dean’s home. Chemerinsky was warned that protests might be held at his home. Moreover, flyers appeared around campus opposing the dinners.
Chemerinsky discussed this threat in a statement to the school:
“The students responsible for this had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them. I was sad to hear this, but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.”
The Berkeley Law Students for Justice in Palestine depicted Dean Chemerinsky in a cartoon with a bloody knife and fork, which were denounced as anti-Semitic and raised images of the ancient blood libel against Jews.
Others attacks Chemerinsky as effectively a Zionist operative.
Once at the dinner, Afaneh and others began their protest. She started by saying “as-salamu alaykum” — or peace and blessings to you — when Fisk took hold of her and tried to take away her microphone.
Fisk teaches civil rights and civil liberties at Berkeley.
An Instagram post by the two student groups said that Fisk was guilty of “violently assaulting” Afaneh. In the video, there is physical contact but it is not violent. It is reminiscent of the recent controversy involving Tulane Professor and former CNN CEO Walter Issacson who was accused of assault in pushing a disruptive protester out of an event.
There are already petitions to seek punishment for the “assault.” One petition states:
“On the last day of Ramadan, UC Berkeley Law Professor Catherine Fisk, and Dean Chemerinsky’s wife, assaulted a Palestinian Muslim hijabi law student that was exercising her First Amendment rights to draw attention to UC complicity in the genocide of the Palestinian people. Fisk and Chemerinsky would rather resort to violently assaulting one of their students than face the truth of their support for genocide.”
The suggestion is that you have a First Amendment right to enter a private residence, stage a loud protest, refuse to leave, and prevent others from associating.
Technically there was physical contact but no police complaint has been filed. Even under torts, there is a notion of molliter manus imposuit or “he gently laid hands upon.” The doctrine is used as a defense for using limited, reasonable force to keep the peace or respond to trespass to land or chattel.
Both Fisk and Chemerinsky can be heard saying that this is their home and that the protest must stop. Evently Afaneh and ten other students left the dinner.
In a statement Wednesday, Chemerinsky wrote that
“The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. . I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.”
The problem is that these students have been told for years that deplatforming and disrupting events are forms of free speech. This has been an issue of contention with some academics who believe that free speech includes the right to silence others. Student newspapers have declared opposing speech to be outside of the protections of free speech. Academics and deans have said that there is no free speech protection for offensive or “disingenuous” speech. CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,” Bilek insisted that disrupting the speech on free speech was free speech. (Bilek later cancelled herself and resigned after she made a single analogy to acting like a “slaveholder” as a self-criticism for failing to achieve equity and reparations for black faculty and students).
Berkeley has lost cases in court over its failure to protect free speech.
Many faculty and deans remained quiet for years as conservatives, libertarians, and dissenters were cancelled on campus or deplatformed. It is only recently that some have become openly alarmed over the anti-free speech movement that they have fostered either directly or through their silence.
In this case, the students felt justified to stop a dinner event in a private home. They also showed little fear that they would face any repercussions for their actions.
Ironically, I raise this very hypothetical in my torts classes each year. I also invite my students to my house for dinners. When we get to trespass, I present the hypothetical of what would occur if some of them refused to leave and what my options might be. The Chemerinsky home just became that very hypothetical.
For many of us, the lack of civility and respect by the students is disturbing but hardly surprising. There are many students who feel enabled for years by administrators and faculty at schools like Berkeley.
Dean Chemerinsky can be criticized for fueling this rage by denouncing conservative justices as “partisan hacks” simply because he disagrees with their jurisprudential views. Nevertheless, Chemerinsky has had a long and widely respected career as a scholar and administrator.
Clearly, neither Chemerinsky nor Professor Fisk deserved this disruption or the lack of respect. They refused to yield to the threats over this dinner and I respect them for that. Chemerinsky has tried to navigate the tensions on campus while supporting free speech rights. Chemerinsky and Fisk open their home to hold these dinners and most students clearly value and respect their gracious hospitality.
I also would not fault the Dean for declining to pursue discipline over the incident since this occurred in a private residence. However, I take a harsher view of disruptions of classes and public events. The protesters can demonstrate outside of a room or a hall to express their opposition to a speaker. What they cannot do is prevent others from speaking or hearing opposing views. Those responsible for such disruptions should be suspended or, for repeat offenders, expelled.
Regrettably, the scene that unfolded at the home of Dean Chemerinsky will be viewed by many as a triumph rather than an embarrassment for their cause. Disruption has become the touchstone of protests in higher education. At the same time, schools like UCLA have paid “activists-in-residence” or now bestow degrees in activism.
We now have a culture of disruption that has been consistently fostered by academics and administrators on our campuses. When asked “why the home of a dean?,” these students would likely shrug and answer “why not?”
In that sense, this is the ultimate example of the chickens literally coming home to roost. These students have been enabled for years into believing that such acts of disruption are commendable and that others must yield in the cancellation of events. For weeks, they demanded that these dinners be halted despite other students wanting to attend. In that sense, the appearance in an actual home is alarming, but hardly unexpected in our current environment.
For students such as Afaneh, it is just part of “the privilege of being in spaces” to continue one’s activism.
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What’s good for the goose is good for the gander.
I suppose it’s mostly peaceful until the city burns! They brought it on themselves! Enjoy the suck!
Actually, it’s quite humorous and refreshing to see these Bolshevik professors being forced to eat their own stew…
How about sit there and listen?
Chemerinsky is hardly a stand-up guy. He told his law school students he’d commit perjury if they repeated what he said in class:
“In late June, a short video of Chemerinsky was posted on social media in which he said to students: ‘I’ll give you an example from our law school, but if ever I’m deposed, I’m going to deny I said this to you. When we do faculty hiring, we’re quite conscious that diversity is important to us, and we say diversity is important, it’s fine to say that.’”
https://www.thecollegefix.com/berkeley-law-dean-caught-telling-class-hed-lie-in-deposition-now-says-he-was-joking/
After it went public, he said he was just kidding. He said his students knew he was joking. He’s a law professor. He should know better. How does he know what they were thinking?
As a law professor training young minds, if you’re going to clown around about committing perjury, you’d better make it crystal clear, it’s a crime, a violation of legal ethics, and is not to be tolerated or condoned.
It’s nice to see progressive professors get some of that medicine that have been dished out to conservatives for so long. This country is in decline.
When you bring RABID Hyena’s into your home, you should expect disruption!!!
What I observed was so disrespectful.
This episode is not really about academia… or Hamas… or anything other than the simple fact that multi-culturalism does not work. The only choice that white Christians of European ancestry now have is to take back the United States of America from the state-sanctioned invaders of the past 60 years. A society functions only when there is general agreement among its members about culture, values, religion, and race. A collection of widely disparate factions is not a society at all; rather it is an invitation to agitation, belligerence, and general unhappiness. If ever there were an uncomfortable truth, this is it.
I’m a white native born heterosexual gentile man and I love my own kind, the Americans.
But I tell you, don’t blame the opportunistic poor people.
Blame those billionaires who not only wanted them to come but got the Democrats “elected” who promised to open the border.
Yes like SOROS and FInk and all those sinister “Capitalists”
The migrants should go back in most cases but they are not the enemy. They are just poor foreigners. it’s the American billionaires who should be imprisoned and sentenced for their criems against the people. All of them? Well we can start with 3/4 and see how that shapes up the rest of them after that.
Saloth Sar
“. . . white Christians . . .” “If ever there were an uncomfortable truth, this is it.”
The only thing “uncomfortable” about your so-called truth is that it’s called racism and theocracy. And the only thing that results from those two is tribalism and dictatorship.
> Nevertheless, Chemerinsky has had a long and widely respected career as a scholar and administrator.
Chemerinsky is and always has been an idiot. And now we see that he is a candyass as well.
Jihadi (and/or recent Ivy League graduate) says what?
Hey dishonest moron. You don’t think Trump and his followers had anything to do with the decline of civility? You are a disgrace. Turn in your bar license. You don’t deserve one
Tell me einstein, how did trump have anything to do with Antifa / BLM burning cities down or attacking people. Are you really that stoopid or do you just play a moron on TV ?
Naming Trump no longer works as an attempt to shut down dissent which you don’t like.
Hahahahaha! Take your meds.
Please take your TDS prevention pill, Nicholas.
Barrack Obama
Maxine Waters
Hillary Clinton
Adam Schiff
Nancy Pelosi
What’s that about Trump, just like a Democrat to blame the victim.
My advice to Dean: Write a letter to the Ca. Committee of Bar Examiners and encourage it NOT to admit this student to the Bar. Having refused to leave when asked, her status as “invitee” changed to “trespasser”; surely she learned that in her classes. It cannot be disputed; as Warner Wolf would say, “Let’s go to the videotape.” Such a person does not have the moral character to have the privileged status as lawyer.
You know he never will. Weak kneed progressive.
Definitely contact the CA state Bar. And….the university needs to begin first offenses suspensions and then EXPULSION. The colleges need to STOP ACCEPTING RADICALS OVER REJECTED AMERICANS with higher qualifications.
The California licensing people are scum for disbarring John Eastman.
Legal system as we know it is over in California, finished.
No ordered liberty for us? Guess what. The reply needs to be: no ordered liberty for them either.
It’s ok, it’s ok. Where we are heading, our recent iterations of the Anglo-Saxon legal tradition will not suffice.
Nothing since the Enlightenment is going to work. We need to look to sterner stuff.
We need to look eastward to find the political ideas that will allow us to successfully rid ourselves of those who have ruined this place. Ideas that can unite us against the enemy, the billionaires, our oppressors.
Saloth Sar
The real question here is: “Does the uninvited laying on of hands constitute assault if there is no violence?”
In the US this varies by state and is dependent on the circumstances. But generally its not considered “Assault” but rather “Battery” which typically involves unwanted physical contact (e.g., touching, hitting, or striking) without consent. However, in California while “assault” generally require intentional or reckless conduct, if it causes apprehension of imminent harm it could be considers assault. Moreover, Actual physical contact is not always necessary for an assault charge in California. Threats or actions that create a reasonable fear of harm can also constitute assault.
In Canada this is a definite yes. As per section 265(1) of the Criminal Code of Canada: an assault involves: 1) Intentionally applying force to another person without their consent, either directly or indirectly (e.g., hitting, pushing, grabbing, or throwing an object toward them); 2) attempting or threatening to apply force to another person, provided there is a reasonable belief that the person making the threat has the ability to carry it out; or, 3) Accosting or impeding another person while openly wearing or carrying a weapon or imitation thereof.
All uses of force are NOT unjustified.
We are generally all familiar with self defense as a justified use of force.
But that is NOT the only justified use of force.
Justification is always a defense to charges of assault or battery.
But just as all uses of force are not unjustified, many are.
The use of proportionate force within your home especially, but your property more generally is legal if it is constrained by what is necescary to enforce your rights. To restore order or to remove a no longer wanted guest.
In a previous article protestors sought to charge Isacson for pushing them out of a speach they were disrupting.
Yet no one mentioned that the campus security did the same thing.
With rare exceptions there are NOT special rules for security, or law enforcement.
We frequently defer the use of force to police or security – because that is their job and they are better trained.
But assessing whether force is justified and using the appropirate amount is NOT legally distinct between security, law enforcement and individuals.
Violence and other forms of disruption are no substitute for cogent discussion. In fact, they suggest a lack of ability and/or self control to debate issues on their merit.
No the real question is which group of these people do I really give a fig about, neither.
The billionaires own both sides., they own the Chemerinsky’s of academia–
and they own the hijab clad dissenters too
these are just mercenaries however, its the billionaires who are enemies of the American people.
this is just drama. a sideshow.
it’s really like which faction of the oppressor’s hirelings will gain the top offices in the army of occupation above us.?
the hijabs or the small hats? how about neither?
As for the free speech stuff, nobody believes in that anymore, but God bless sincere good hearted liberals like Turley who still do
Saloth Sar