The College Fix

Berkeley dean responds: ‘No First Amendment right to use my house or yours for speech’

The National Lawyers Guild is defending a pro-Palestinian student’s assertions she exercised her First Amendment rights when she interrupted a private dinner party at the home of University of California at Berkeley School of Law Dean Erwin Chemerinsky last week.

The student, Malak Afaneh, stood up and began giving a pro-Palestinian speech into a microphone during the dinner for third-year law students at Chemerinsky’s home on April 9. Afaneh continued to speak even after Chemerinsky and his wife told her to leave, according to a video of the incident that went viral online.

In the video, Afaneh said she believed she was within her right to speak based on advice she received from the National Lawyers Guild, which describes itself as the nation’s oldest and largest progressive bar association.

Camilo Pérez Bustillo, executive director of the guild, spoke with The College Fix in a phone interview about whether First Amendment rights applied in her case.

“This wasn’t any random private home, and it wasn’t a random event. It was an event that fits squarely within the official duties of the dean and, of course, his wife, because they are both faculty members,” Pérez Bustillo said.

“For all intents and purposes,” he said the dinner was “an official event.”

Camillo said the case “would have to play out in court” to know exactly how the law applies, but he maintained the dinner was not a “purely private setting.”

The guild also released a statement on X describing Afaneh as “courageous” and “condemn[ing]” Fisk for using “physical force against the law student by grabbing the student’s neck and clothing, including her headscarf.”

The National Lawyers Guild (NLG) condemns the incident on April 10, 2024, at University of California Berkeley Law School Dean Erwin Chemerinsky and Professor Catherine Fisk’s home.

Read our statement in the images 👇🏼👇🏼👇🏼👇🏼 pic.twitter.com/JOuRaGA1nA

— National Lawyers Guild (@NLGnews) April 11, 2024

Leaders of Berkeley Law disagree

“The law is clear that there is no First Amendment right to use my house or yours for speech,” Chemerinsky told The Fix in a recent email. “I am sad a student professed to not know this. But I do not believe she is typical of Berkeley Law students in any way.”

Berkeley Law Chancellor Carol Christ agreed, saying Chemerinsky’s home is not a “platform for protest” in a statement provided to The Fix.

“I am appalled and deeply disturbed by what occurred at Dean Chemerinsky’s home …” Christ said. “I have been in touch with him to offer my support and sympathy. While our support for Free Speech is unwavering, we cannot condone using a social occasion at a person’s private residence as a platform for protest.”

Chemerinsky also addressed the accusations that his wife, law Professor Catherine Fisk, assaulted Afaneh by attempting to take away the microphone she was using.

“There was no assault. My wife grabbed to take the microphone away. The student shoved my wife. My wife went to grab the microphone and there was a brief tussle over it. No one got assaulted,” he told The Fix.

Chemerinsky referred The Fix to a statement he wrote the day after the incident that explained how he and his wife host dinners with law students at their home every year.

“I never imagined that something we do to help our community would become ugly and divisive,” he said.

He also said “any student who disrupts will be reported to student conduct, and a violation of the student conduct code is reported to the Bar.”

When asked if any students were disciplined, Berkeley Law Communications Assistant Dean Alex Shapiro told The Fix in an email, “We are prohibited by federal law (FERPA) from offering any comment about student conduct or discipline that can be connected to a particular student or students.”

Protester once called Jewish students ‘bitches,’ racist

Afaneh has been the subject of controversy in the past due to her pro-Palestinian activism.

Details in a social media post by the Islamic Scholarship Fund and a bio on the Council on American-Islamic Relations website suggest Afaneh is the same person who, in 2020, shared an Instagram post describing pro-Israel Jewish students as “bitches” who “hate brown p[eo]p[l]e.” She was senior class president at Pomona College at the time.

Afaneh issued an apology after a petition campaign called for her to apologize or resign, The Fix reported at the time.

The UC Berkley Law Students for Justice in Palestine, a student organization of which Afaneh is a leader, did not respond to The Fix‘s email requests for comment in the past week.

Afaneh said in a statement online she was “attacked” because she is a Muslim woman “who dared to wear a hijab and a keffiyeh” and speak in Arabic.

Dean responds to antisemitism on, off campus

Prior to the April 9 dinner, Chemerinsky said he was the target of an antisemitic poster campaign on campus. The poster showed a caricature of him holding a bloody knife and fork and the words “No dinner with Zionist Chem while Gaza starves,” according to his statement.

“I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish,” Chemerinsky said in the statement.

However, as an advocate for free speech, he said he “felt that though deeply offensive, they were speech protected by the First Amendment.”

During another dinner with students April 11, he said about 15 protesters showed up on the street outside his home and on the path directly next to the backyard.

“They chanted (some chants were quite offensive) and yelled and banged drums to make noise to disturb the dinner. The dinner continued,” Chemerinsky said in the statement.

“I have spent my career staunchly defending freedom of speech. I have spent my years as a dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner,” he said.

MORE: Harvard, Stanford, MIT get Fs for addressing antisemitism: report

IMAGE: Steve McGuire/X

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