Erwin Chemerinsky, dean of Berkeley Law since 2017, has been at the forefront of free speech advocacy for the past four decades. From previously serving as the dean of the UC Irvine School of Law and holding appointments at the law schools of Duke University, the University of Southern California and DePaul University, to penning influential articles and books on the principles of freedom of speech, Chemerinsky is a leading voice.
The Daily Californian sat down with Chemerinsky for a conversation about his career as a scholar and advocate, as well as why free speech — specifically on college campuses — matters.
Note: This interview has been edited for length and clarity.
DC: You’ve written a number of articles and books about freedom of speech and the Constitution. What first sparked your interest in this area, and what has kept you interested?
Chemerinsky: I went to law school because I wanted to be a civil rights and civil liberties lawyer. I took all the classes in law school about the First Amendment and constitutional law. I’ve been teaching constitutional law for 43 years now.
DC: Throughout your career as a legal scholar, professor and dean, in what ways have you seen attitudes around and discourse about freedom of speech change over time, be it from students or the general public?
Chemerinsky: I don’t want to overstate this. But, I think there is less of a commitment to free speech among many students than there used to be. I’m not saying that’s true of most students, but I’ve certainly seen a lessening commitment among many students. When I was at UC Irvine before coming here, for three years in a row I taught a class called “Free Speech on Campus” with the chancellor of UC Irvine, and I’ve been teaching the First Amendment class on a regular basis to law students since 1980. I would say there are more students now who are less committed to the principles of free speech than there used to be.
DC: To follow up, in what ways are students less committed to free speech?
Chemerinsky: I think there are more students who would want to restrict hate speech, or more students who would want to restrict speech that they find offensive than there used to be. In the fall of 2017, there was a week where several conservative speakers were scheduled to come to campus and Chancellor Carol Christ scheduled a big public forum. I remember one student standing up and saying, “I want you to ban these hateful speakers. I don’t care what the First Amendment says, you need to protect us.” I think there’s more of a skepticism about free speech principles now than there used to be — but I don’t mean to say that’s true of all students.
DC: Last semester, Berkeley Law made headlines as many reacted to a bylaw from some student organizations that banned Zionist speakers. You told The Daily Cal that student groups have the right to decide who they invite to speak but condemned the bylaw because it is “inconsistent” with Berkeley Law’s values. The reactions elicited by such events can be emotional — how do you approach these issues, reconciling what the law says with educational missions, values and student safety?
Chemerinsky: I don’t believe there’s an inconsistency with what the law requires and educational missions and student safety. Obviously, student safety is always paramount. We’re not going to do anything or allow anything that would endanger our students. We of course have to follow the law, including the First Amendment. In terms of how we act, it’s always going to be to protect our students and to follow the law.
DC: In your writings and interviews, you state that free speech must be protected on college campuses, even if that speech is hateful. You have also expressed sympathy for students who reject this idea, stating that bigoted speech has no place on campuses. In your capacity as a scholar of these issues and as the dean of Berkeley Law, what reactions do you most commonly receive from this stance, and how do you respond?
Chemerinsky: The law is clear that speech cannot be excluded or punished just because it’s offensive or hateful, and we have to follow that law. At the same time, I recognize that speech can have real harms. If speech had no effect, we wouldn’t protect it as a fundamental right. The harms can be positive — speech can uplift us, or the harms can be negative – speech can harm. As a dean, one of the things I must do is articulate the values of the institution. I put a notice to the community every fall, a letter that articulates our free speech values — that we are committed to being a place where all ideas and views can be expressed. If you don’t like something, bring in your own speaker. But there’s no First Amendment right to disrupt the speaker; if anyone disrupts the speaker, then they’d be subject to discipline. I put that letter out every fall to preserve free speech principles, and we will continue to do so.
DC: Before becoming the dean of Berkeley Law, you worked as the dean of UC Irvine and held appointments at Duke, USC and DePaul. UC Berkeley has a vibrant history when it comes to freedom of speech, from the Free Speech Movement of the 1960s to protests that take place on a weekly basis in the modern day. It is also a public school which is under the purview of the First Amendment. How, if at all, does UC Berkeley as an institution differ with regards to its interactions with freedom of speech in comparison to other universities, based on your experience?
Chemerinsky: First, it is a public university, so it has to comply with the First Amendment. Private universities generally don’t, though it is a little more complicated than that. Second, Berkeley has a long history with regard to its commitment to free speech. This was the home of the Free Speech Movement. So, I would hope that Berkeley will always be especially cognizant and protective of speech.
DC: You regularly write not just academic articles, but also pen opinions on current events in, for example, the LA Times and the Sacramento Bee. What is the importance of making information about freedom of speech accessible to a wider audience?
Chemerinsky: It’s important that as a law professor and lawyer, I not just speak to other law professors and lawyers. I hope that I have the opportunity to educate a larger audience about the law and maybe even persuade them with regard to legal issues. So, I feel fortunate that I have the opportunity to write on a regular basis to nonlawyer audiences.
DC: Thank you for your time today. Is there anything else that you would like The Daily Californian’s readers to take away about freedom of speech?
Chemerinsky: It’s so important that the law school and the university be a place where all ideas and views can be expressed. I want that to be conservative and liberal, and on all of the different issues, because, to me, that is what education is about. Sometimes that’s going to mean that there are messages that some people find to be offensive. The response should be to have more speech, to have other speakers and to have peaceful protests and responses.