The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky

>> Jane Bambauer: Hello, welcome to Free Speech Unmuted,. I'm Jane Bambauer Brechner, eminent scholar and Professor of law at University of Florida.

>> Eugene Volokh: And I'm Eugene Volokh, by the time this is put online, I will probably be a senior fellow at least a day or two away from being senior fellow at the Hoover Institution, and I will be emeritus at UCLA Law School, finishing up 30 years of teaching.

But the really interesting thing is we have a special guest. Who is this special guest? Erwin, who are you?

>> Erwin Chemerinsky: My name is Erwin Chemerinsky, and I'm dean and professor at the University of California, Berkeley School of Law.

>> Eugene Volokh: And not only Berkeley professor, you had for a long time been city maid of ours at USC law school and then at Duke Law School, and then the founding dean at UC Irvine School of Law.

So Erwin is an august personage in constitutional law circles, is the author of many articles and treatise, and in general knows a tremendous amount about constitutional law, and yet, despite that, went on to become a dean. So, no, I think it's tremendously important that top scholars are willing to become deans.

I would certainly never want to do that. I'm shocked that anybody would. But I'm delighted that people are willing to sacrifice to that extent to become administrators. So, Erwin, I wanted to ask you, we're gonna be talking in part today about academic freedom and professors. Erwin is the co-author of a book on academic freedom generally with Howard Gilman.

And he certainly thought a lot about the legal issues involved in the academic freedom rights of professors inside the classroom, outside the classroom and such. But before that, there's just so much in the news about student speech that we felt we had to even though our last episode was about that.

To add a bit more on that, in part, Erwin, there was an incident involving students who seemed to think that they were entitled to speak in your backyard, literally in your backyard, at a party that you had put together for Berkeley students. Tell us whatever you feel comfortable about what's going on there?

Kind of what happened, what your reaction was, what the institutional blowback has been, and what you think this tells us about free speech at the modern university.

>> Erwin Chemerinsky: Let me just say what a pleasure it is to be in a conversation with both of you. My wife and I have been doing dinners for first year law students at the start of their law school career as long as I've been a dean.

However, in the fall of 2020 and the fall of 2021, we couldn't do those dinners because of COVID. Last year's graduating class that began in 2020 asked us if we do dinners before commencement for them, and we did. Then this year's co-president of the third year class came to us and said, you didn't do dinners for us in the fall of 2021, you did last year's graduating class, would you do them for us?

We agreed to do dinners on three nights, April 9, 10th and 11th, and students could pick any one of those nights to come to dinner. On April 1st, the week before, a flyer went up on all of the bulletin boards of the law school and online. It had a caricature of me holding a bloody knife and fork with blood around my lips calling for a boycott of Zionist Chem's dinner.

It didn't have a complaint about anything I had said or done. I've taken no position and made no public statements about what's going on in the Middle East. It's not my field of study. The only demand was that UC divest from Israel, which as you know, isn't in the control of the law school or the campus.

It's the regents. That Thursday, the co presidents or student government came to me and said that the students were justice in Palestine that had prop the flyer demanded that we canceled the dinner, and if not, they were gonna protest at them. I said we weren't canceling the dinners.

Those who don't wanna come, of course don't have to, but we wanted to have them for those who did wanna attend. And so long as they protested peacefully in a non disruptive manner, that was their First Amendment right, and I assumed it meant they would pick it in front of our house.

And we had someone there just to make sure that they didn't come onto our property if they did that. The dinner was on April 9, I was surprised to see the leaders of the students of Justin Palestine, who had called for the boycott, come to the house. We greeted them warmly.

Everyone went to the backyard, sat around for a half hour or so before dinner. Everyone got their food, and then, just as people started eating, the leader for Justin students were just in Palestine. The person who was responsible for the flyer went under the steps of our backyard with a microphone and began to read a speech from her cell phone about the plight of the Palestinians.

 

>> Speaker 4: Hello, everyone. Assalamualaikum warahmatullahi wa barakato. Peace and blessings upon you all. Tonight we are gathered here in the name of commemorating our final few weeks as law students.

>> Speaker 5: This is my house.

>> Speaker 4: Tonight is also the last night of the holy month of Ramadan, where millions of Muslims around the world fast not only from-

 

>> Speaker 4: We have attorneys.

>> Speaker 6: Okay, you don't have to get aggressive.

>> Speaker 5: This is our house, you have fested our house.

>> Speaker 4: This is our first amendment right.

>> Speaker 5: No.

>> Speaker 4: And that's why lawyers have informed us this is our first amendment right, and they are aware of this.

They're not wrong.

>> Speaker 5: This is my house. This is my house.

>> Erwin Chemerinsky: I immediately got up and said, please stop. Please leave. She didn't. At one point, my wife grabbed the microphone. The student, by the way, brought the microphone. We don't have any speeches at these events. There was no microphone.

The student said, if you let go, the microphone will leave. And ten students left at that point, it was enormously sad to see the anti semitic flyers all over the law school, though I felt I could not take them down from the bullet boards. It was enormously sad to have a dinner at my house disrupted in this way.

The student, as part of the exchange, said, we have free speech rights to be here and do this. And, of course, as you know so well, even if it were in the school, it would be what would be called a limited or non public forum. And there's no First Amendment right to disrupt, but there's certainly no First Amendment right to do this in our backyard.

A video was taken of it. An excerpt of the video went online. It went viral in a way that I could have never imagined. We for many days, received death threats, thousands of hate messages, as well as supportive messages. And the fallout continues. I'll answer anything you wanna ask about it, but that's the short version.

 

>> Eugene Volokh: So the first message that we should all learn from this is, no good deed ever goes unpunished. Erwin, I should say I entirely sympathize with your position on this. And I do think it's important that, as you pointed out, even if this were a dinner at the law school, there are reunion dinners, for example, at UCLA law school, that are held in maybe it's sometimes in the library or even in some internal courtyard.

That's not an occasion that people are entitled to get up and start orating. But A little bit more, one thing that I've heard in the news is that the university started an investigation of you, or perhaps your wife or both. Your wife, of course, is Catherine Fiske, who is also a leading scholar in her case, a scholar of labor law, for supposedly mistreating the student by trying to take away her microphone.

If you feel comfortable, can you tell us about that?

>> Erwin Chemerinsky: The student from our backyard, who's also the one responsible for the antisemitic flyer, filed a complaint against Catherine with the Office of Prevention, Harassment and Discrimination on campus. Alleging that Catherine acted against the student because the student is Muslim and Palestinian, and that Catherine had acted inappropriately by grabbing the microphone and inadvertently touching the student.

The Office of Prevention, Harassment and Discrimination, a week of Friday that it was investigating this. The student then went to the press and gave the press the letter, which led to the story that Catherine is being investigated.

>> Jane Bambauer: Were they under an automatic obligation to investigate, or was there some sort of decisional choice at that point?

 

>> Erwin Chemerinsky: Well, they always have a choice whether to investigate. I understand there are a number of instances each year, a significant way they choose not to investigate. So implicitly, they made the choice that this is worthy of investigation.

>> Jane Bambauer: Yeah, and for listeners if you are curious, there is some footage online.

You can look and see for yourself what happened. It is, from my eyes, at least exactly as Erwin described it. So I have a question. So it seems like, it's not surprising, especially given your knowledge of First Amendment law and also just your straight spine and great integrity, that you weren't willing to.

That you didn't probably didn't even occur to you, or you certainly were not going to take down the flyers, as offensive as they were. And you also invited these students into your home to give them a chance, at least, to do the right thing, right? That all makes sense.

I'm wondering, if the flyers had targeted either a faculty member or a student instead, how would you have treated that case?

>> Erwin Chemerinsky: Let me also say I received a number of requests from Jewish staff and students to take down the flyer. It wasn't a flyer on a single bulletin board.

They put multiple flyers on every bulletin board. And the response that those staff and students gave me was, it made them feel unsafe to have that caricature that was anti semitic. And my response was, since they posted them in accord with school rules for posting things I couldn't consistent with the First Amendment, take them down.

If it had been about anybody other than me, I would have sent a message to the community condemning them. We had an incident a number of years ago when Alan Dershowitz was speaking and someone drew a swastika over a picture that was on the bulletin board. As soon as I saw it, I sent a message to the community condemning it as being inconsistent with our values.

I didn't feel comfortable doing it in this instance because it was a caricature of me.

>> Jane Bambauer: Right, at some point, if it had been a student, maybe just pushing it even further, at some point, would you have found your obligations as a dean to manage harassment, to outweigh the or to have to even come into direct conflict with the First Amendment values?

 

>> Erwin Chemerinsky: Of course, and there's always the tension, and maybe we can talk about it. Between the Title VI obligation to prevent harassment and the First Amendment obligations for a public school. There are many ways of meeting the obligation, and one of them is for administrators to speak out and condemn things.

Another is to provide support for those who are being targeted. The key is, I think, in order to meet both obligations is that a school can't be deliberately indifferent. And as I said, in this instance, it was different cuz it was a character of me, and I didn't want to be singing the act out of self interest in protecting myself.

 

>> Eugene Volokh: So, Erwin, if I could turn to another story that's in the news. Thankfully, at this point, it does not include Berkeley, although given what's been happening at UCLA, maybe it will soon include UCLA, the school that I'm still gonna be affiliated with as an emeritus professor. This one involves Columbia, so some judges have circulated a letter essentially saying that they will not hire students who are going to or have gone to Columbia as law students or as undergraduates.

This is students who begin effective this coming fall, so they're fully on notice of this. They would not hire those Columbia graduates as law clerks. And that they think that Columbia has shown that not only is it a place where there's student disruption and anti Semitism, at least in their view.

But that, in fact, that Colombia has shown itself to be a place that is not consistent in its views about speech, that it's part to them of a movement in American universities to suppress conservative speech, or perhaps even maybe extreme conservative speech. But also mainstream conservative speech, while at the same time showing a remarkable amount of tolerance for what they see as extreme and bigoted speech on the left.

So there is this letter, it's signed by about a dozen judges. And I take it their argument is that this is what needs to be done in order to press universities into protecting speech on an even handed basis. And protecting students from what they view as abuses of claimed free speech, such as encampments, such as takeovers of buildings and the like.

This follows on similar things with regard to Yale Law School and Stanford Law School, which have also involved some of the same judges over the last couple of years. But this time it actually says that they will not hire anybody who has gone to Columbia as an undergrad or as a law student.

So, Erwin, tell us a little bit about what you think. We have our own thoughts, I've actually written a bit about this in the past, but I'd love to hear your thoughts.

>> Erwin Chemerinsky: The judges have the right to hire whoever they want as a law clerk. But what the judges are doing here is just wrong.

It's wrong to punish the students for the choices being made by the administration. Here what the judges are objecting to is choices made by the president of Columbia University. And why should the students be denied clerkships because of her choices? It's very different if we want to say that students who have done particular things won't be hired as clerks, but this isn't anything that the students did.

What do they control? You were saying that, I'm gonna use your words, Eugene. It was about protecting students. It seems so strange to say we're gonna protect students by denying them opportunities.

>> Eugene Volokh: Got it, that makes a lot of sense. And I should say that this is very close to the view that I expressed back in October 2022 with regards to the then boycott of Yale Law School that students are, we're about to say kids.

It's not kids, right? They're young adults to us, certainly Irwin and my age, they're kind of kids, but let's see, students are people, they're young people, but more broadly, there are people who just, most of them want to get an education. Most of them don't wanna get involved in any of these things, they should be entitled to be neutrals.

They should be entitled to be free of this kind of secondary boycott, and so I think, Erwin, I think what you're saying is absolutely right, and I'd love to hear also what Jane has to say, but I wanted to ask you a quick question. So one of the judges, Judge James Ho, who was the, who has written about this and who I think has been involved in all of these boycotts, all three of them at this point, had a speech where he says, look, let's say a law school discriminated on the basis of race.

Some law school, it was known, was discriminating against black students, either excluding them altogether or just not protecting them against the various things, the way that it was protecting white students. Could a judge publicly refuse to hire from that school in hopes of spurring change, and again, I think he meant not just could as a legal matter, but was it something that we should think would be a legitimate position for him to take?

He says, surely a judge could do so, and if so, why can a judge stand up for colorblindness, for non-discrimination based on race? But he said, not freedom of speech. Today, he might say, but not freedom from anti-Semitism, that if we believe, and I know different people have different views, but if we believe that Colombia is giving a special break to these students who are expressing, certainly very sharply, anti-Israel views and in certain instances, anti-Semitic views.

Why can't a judge say, this is just like if Colombia was saying, you know, we're not gonna be protecting blacks or we're gonna give special treatment, special positive treatment to anti-Black speech that we wouldn't give to others. So I take it that's the argument he would make just based on his past speech, I was wondering what you thought about that earlier.

 

>> Erwin Chemerinsky: I think that the judge should speak out against the law school that he believes is discriminating based on race by virtue of being a United States court of appeals judge, he has a platform where his voice will be heard. And I would think in that circumstance, he would particularly want to hire black students from that school because of the discrimination.

And it may be that because he thinks that the admissions policy is so discriminatory, he doesn't trust any of the students who've been admitted and won't take them. But I think the idea that a judge is gonna pressure a law school by hiring none of the students is simultaneously punishing the students at that school, something they had nothing to do with, and it's not gonna have any effect in the school's policies.

I assure you, as a dean of a law school, I'm not gonna be pressured to change our policies by judges who threaten to not hire our students as clerks. I'll condemn those judges because they're unnecessarily punishing our students.

>> Eugene Volokh: Got it, makes perfect sense Jane, what do you think about all this?

 

>> Jane Bambauer: I think I agree, and so maybe we'll have to go a little deeper to find places where we don't agree. But it seems to me that these judges, the only rational way I can understand it is if they've already fully given up on these particular universities or law schools and they have decided that the entire class is basically corrupted, or they don't care about punishing a few individuals in order to affect some sort of worthwhile major change, which, like Erwin said, is probably not likely to happen.

But I just think that the premise is wrong, too, that there are a lot of students at these schools that are asking for more intellectual diversity, that are taking risks by having federalist society events and whatnot. And so this is just the wrong way to try to reform an institution that still has some live roots that's not thoroughly corrupted.

Now, I am curious, though, what we all think of the boycotts against Harvard students that signed on to the letters shortly after October 7. I'm forgetting exactly the content of the letters, but the letters were very inflammatory, pro-existance, we'll say and there were some employers that were encouraging other employers to not hire any signers of these letters.

This, now we're talking about a set of people who, on one hand, they've actually done something to differentiate themselves and to show their judgment. On the other hand, what I've heard and the reason, I think maybe it might be a hard case for. For one or both of you, is that these are also still young students, especially at the undergraduate level.

How much of a you know, of a sort of social or economic punishment is the right. Is the, you know, is normatively the right amount for something like this? Yeah, I think these are in kind different situations, for, in one instance, it's denying students opportunities, because what the president of Columbia university did, not even what the law school did, and the other is denying students opportunities because of what those students did.

 

>> Erwin Chemerinsky: Now we can talk about when should an employer deny opportunities to students because of their activities. I would hope that generally employers wouldn't deny students opportunities because of their free speech activities and that the employers would be very much wanting to protect student speech. But I also understand that there's a point at which an employer says a student who has said certain types of things aren't the ones we wanna present to our clients.

And so I think it's a very different situation, as a dean, my position is we wanna help all of our students get jobs. But I also say to students in orientation is one else, that part of being a professional is you should be conscious of what you're putting on social media, you should be conscious of things you're saying because you're gonna be evaluated by that, and there's a limit to how much we can protect you.

 

>> Eugene Volokh: Erwin yeah, that makes a lot of sense, and I do think that these are very different kinds of questions, although each interesting in its own way. Erwin what do you think about these laws in some states, including our own California, which at least purport to ban private employers from discriminating based on employees and applicants political activity?

The California statute, for example, has been interpreted quite broadly to cover advocacy of any candidate or cause I New York's statute is, at least on its face, rather narrower. It just only focuses on basically electoral activities, although also covers a recreational activity query, whether tweeting is recreational activity, and then different states have different rules.

Connecticut has its own peculiar rule, there's a Utah model, maybe about half the states have such rules as to private employers. What do you think, do you think and we may one day have a podcast episode about these statutes themselves, tremendously important, whether for good or ill, but they're potentially quite important.

But for now, just tell me what you think. Do you think those make sense in this kind of situation like that? California employers on their face seem like they have to hire people, even ones who've expressed racist views, anti-Semitic views, views that some might think of as anti-Semitic or racist, even though the others may disagree.

 

>> Erwin Chemerinsky: I think it's a very hard question because you've got the employer's speech interests and the. The employee's speech interests, and there's remarkably little litigation under these statutes, including the California law, and very little on that question. So in theory, I like the idea that an employer can't discriminate against people on account of their ideology views.

On the other hand, when the employer says, we have to present ourselves to clients in certain ways, and we wanna, as an employer, as an entity, convey a certain message, and we therefore need to control our message. How do you balance the employer's free speech interest against the prospective employees or the employees interests?

And that, to me, is a really difficult question and one that hasn't resolved under these statutes.

>> Eugene Volokh: Excellent point. Maybe we can now turn to the other side, or one of the other sides, there's so many sides of the Academic Freedom discussions which has to do with faculty.

And I'm interested in both the First Amendment questions at public universities. And also the Free Speech and Academic Freedom questions also at private universities that at least claim to be serious institutions that are devoted to Academic Freedom. And the questions really are, when may university punish a professor, possibly by firing, possibly by suspension, possibly by moving them out of certain classes and the like.

Because of what the professor has said, and usually because of what the professor has said has been seen as sufficiently offensive by people either on the left or the right or wherever else. That they say, you know, we don't want this professor on the payroll, or we don't want this professor in our classroom and the like.

And there are at least two dimensions here, or maybe three dimensions. One is when may the university fire a professor based on what the professor said in his scholarship. A second may be based on what he said in his public commentary tweets, let's say, or maybe some interview that's not directly focused on his scholarship in the sense of academic article.

And third, based on what the professor has said in the classroom. So you've written extensively on this question. I'd love to hear your thoughts, both in general and perhaps how they may play out with regard to particular controversies that are in the news.

>> Erwin Chemerinsky: Sure, I think it's important to start by talking about the relationship between the First Amendment and Academic Freedom.

I regard them as overlapping, but they're not identical. So as you point out, the First Amendment applies just to public universities, but Academic Freedom can apply and would to virtually any university that commits itself to it, public or private. Academic Freedom is generally about protecting what the ability of the faculty member does in the classroom or in scholarship or in disseminating the scholarship.

I would think that a professor going to a rally on a weekend wouldn't likely be protected by Academic Freedom, but it would be protected by the First Amendment. Within the context of how Academic Freedom of the First Amendment often overlap, let me try to address your specifics. I think with regard to scholarship, the key is, is the professor meeting the standards for scholarship within the field?

That if there's a professor who's doing geology and wants to say that it's a flat earth or a history professor denying the Holocaust, I think we'd say that doesn't meet the standards of scholarship for the field. So inevitably there are content based evaluations going on. Hopefully they are not viewpoint ideological evaluations, but scholarship does have to meet the standards for that particular field.

Academic Freedom doesn't protect your right to poor scholarship. Teaching is the same thing, Academic Freedom provides a great deal of latitude with regard to teaching, but it's not unlimited. If we assign someone to teach contracts and he objects and says, I'm not gonna do that., I'm just gonna come in every day and talk about the baseball pennant race, we can punish the teacher for doing that.

If a teacher is teaching irresponsibly, teaching the material in a way that doesn't meet professional standards, Academic Freedom doesn't provide protection. In terms of public commentary, I think that it's likely protected by Academic Freedom as well as the First Amendment, at least so far as it relates to disseminating the professor's area of interest.

And I think so long as it's within the realm of professional responsibly commentary, it's also protected by both of these. The one footnote that I'd add that may be more technically, that when it comes to public employees, there is generally no First Amendment protection for their speech on the job in the scope of their activities.

The 9th Circuit on the West coast has said that it has an Academic Freedom exception to that rule, but other circuits don't. So again, this goes to the very technical relationship between the First Amendment and Academic Freedom.

>> Jane Bambauer: So I'd like to ask, it seems to me that Academic Freedom, everything you've said about the relationship to First Amendment makes a lot of sense.

But that Academic Freedom still might not be enough to get where we actually want colleges and universities to go and to stay. So you mentioned when you were describing how standards are going to be applied to faculty's scholarship. And actually, maybe we could say the same about what they do in the classroom as well.

Those standards, I think I have personally seen some corruption of those standards where there is viewpoint based discrimination that is not based on facts or evolution of evidence, but is instead ideological. Just to give one example, I was reading over the complaint filed in US district courts in Florida against the Stop Woke act.

And I agree with the faculty plaintiffs in terms of their legal claim about the problems with that law. But as part of the background information that the complaint described, one of the faculty members explained that in their department, there is a consensus that merit is a white supremacist concept.

And so that means that if there's a consensus, if you basically say something that does not align with the consensus, you have extra burden, right? You're carrying an extra burden, and maybe it would be wrong even to teach it in the classroom. And that's just one example, I think we could all sort of imagine examples that there may also be departments that have their sort of orthodoxies that are right coded.

I'm more familiar, and I think right now the problem is a little bit more with the left side. So an Academic Freedom doesn't protect the university from an internal threat. So what do you think universities could do? In fact, Academic Freedom, in a way, makes this worse, right?

Because then it limits the sort of correctives that a university or an outsider, like even the outside government has at its disposal. So what do you think is the best way to combat this issue?

>> Erwin Chemerinsky: Inevitably, there have to be quality determinations within an academic institution. We're talking about hiring and promotion, and it's based on the quality of the scholarship.

Each of us, in grading papers, have to make determinations in terms of the quality of the paper. There's a difference, when we're giving an A versus B versus C and so on. It never should be Based on an ideological disagreement, the way we're talking about it, I never, in grading con law paper, should care whether the student agrees or disagrees with a liberal or conservative perspective.

But to say that sometimes this is abused shouldn't be taken to the conclusion that never should there be quality determinations. We should condemn the abuses, we should aspire, never, even in a human system, to have that happen. But we have to accept that there have to be determinations about the quality of scholarship and deciding if somebody gets tenure or the quality of a paper in giving a student a grade.

 

>> Jane Bambauer: Well, I think we can accept that, but still see a systematic problem where if faculty decides who the next incoming faculty are and they have an ideological litmus test, even if they're careful to make it kind of a little bit opaque. Then you can see this as a runaway problem or as a problem that gets worse over time.

That isn't just the occasional kind of random error.

>> Erwin Chemerinsky: I will oppose vehemently ideological litmus tests in hiring faculty, I will strongly having ideological diversity in the faculty. But that said, inevitably we have to read the articles and have to decide, is this somebody who has scholarship of the quality to higher under our faculty?

Is this somebody who has scholarship of the quality for tenure? We can't avoid those determinations, we can only be committed as best we can that we're not going to make those determinations based on ideology in this sense.

>> Jane Bambauer: Is there a good way to commit that, I'm sorry.

 

>> Eugene Volokh: No, no, no.

>> Jane Bambauer: Is there a good mechanism for committing that and for really sort of ingraining that in the culture even more strongly than it already is?

>> Erwin Chemerinsky: I welcome the suggestions. I mean, with regard to students, I send a message to students at the beginning of the school year, in fact, this time at the beginning of each semester.

Expressing our commitment that we be a place where all ideas and views can be expressed, that if you don't like an idea of you, bring your own speaker, but you can't disrupt, and that we all benefit from it. In orientation, which I was talking about earlier, I do a long speech about why students benefit from all ideas and views being heard within the faculty appointments committee.

Try to instill that we're not gonna make choices based on ideology, but we're all humans, and are we more likely to give positive evaluations of things that we agree with than those we disagree with? Yes, we can only just do our very best to try to be conscious of it and overcome those kind of biases.

 

>> Eugene Volokh: So, Erwin, I think what you're saying makes perfect sense in many ways, perhaps in all ways. And one way of thinking about it is in many aspects of First Amendment law, we have a requirement of content neutrality. But you can't have content neutral tenure evaluation, or if you would, it would be a parody, right?

There's the old joke that you need to write more articles even if they're not very good, because your colleagues may not wanna read, but they find it easy enough to count. Well, that's a joke because, of course, it would be a joke if there was a content neutral basis for tenure.

If you write at least five articles, you get tenure, or five articles of at least 30 pages each with at least 300 footnotes. That's ridiculous, so you have to have this kind of content judgment. But I take it part of the problem is that if the judgment is based on kind of what is accepted in the academy.

Then if a particular part of the academy could be a department, could be university, could be, in fact, the academy writ large in a country is sufficiently ideologically skewed. Then I take it there's a concern that, in fact, people who descend from that orthodoxy will find themselves unprotected by academic freedom because their colleagues say, well, this is just bad work.

Well, but why do they think it's bad work? Because of the human tendency to assume work we disagree with is bad. So one thing that I beginning to see, I think in some state legislatures, is the sense that kind of the blue faculties, maybe the dark blue faculties.

Are saying we get to make decisions about whom to hire and how to spend taxpayer money because we're the academy and you, the red legislature, don't get to make decisions. You do get to pay for them, in fact, we insist that you pay for them. But academic freedom means we win, and it just so happens we're on one side politically and you lose.

You the legislature, it just so happens you're on the other side from us politically. So what do you say to people who raise that kind of objection, the sense that academic freedom of faculty has become basically the freedom of the universities? Basically the university departments that are basically on the left to just perpetuate themselves and then raise academic freedom.

Raise the First Amendment as an objection whenever the legislature, which may disagree with them, may say, look, wait a minute, we need to counteract this tendency. That's, by the way, not a view that I am terribly sympathetic with, I've filed a friend of the court brief opposing the Florida Stop woke Act on First Amendment grounds.

But I do think that's, I think the strong argument on the other side.

>> Erwin Chemerinsky: Let me take what you say step by step. I believe that faculty have to decide who to hire a subject to university approval processes. That it is the nature of faculty governance, which is integral to academic freedom, that the law faculty gets to decide who it wants to hire.

Subject, of course, it's always reviewed by the campus to make sure it meets sufficient academic standards. At the same time, legislatures get to decide what they're gonna pay for or not pay for. And my concern about it is often what happens is reasoning by anecdote. There's a particular instance that comes to light where a faculty is acting inappropriately, and there's a generalization from that.

I'm not gonna tell you that faculties never act inappropriately, any human body does. But I don't think we should be making policies based on the anecdotes of what's inappropriate.

>> Jane Bambauer: I think one of the best parts of Stop Woke act, since we've now all, I think, criticized parts of it.

So the worst parts include the ones that basically create kind of an equal but opposite orthodoxy, trying to shove that into the classroom or that try to seriously inhibit the operations of an existing department. On the other hand, another thing it does, though, is create centers at the existing universities, like at University of Florida here, it's the Hamilton center that basically has its own sets of majors and its own faculty and resources, this new set of departments well.

And so that on the campus as a whole, and that faculty gets almost sort of a fresh start, maybe with a more classical libertarian leaning initial faculty. And that's sort of an attempt to kind of right size or redistribute, I guess. I guess the ideological backgrounds of the faculty across the campus, does that seem like an intervention that is appropriate to either of you?

 

>> Erwin Chemerinsky: I strongly favor ideological balance within any faculty and with the faculty as a whole. I want my law school faculty to have individuals represent the full range of viewpoints on the ideological spectrum. I want this campus to have that. What concerns me about what you say is if you create a center and say, we're just gonna hire conservative faculty, does that then mean that other people aren't gonna get hired on account of being liberal?

And isn't that exactly the kind of viewpoint discrimination that I think we're.

>> Jane Bambauer: Right, so much of this depends on how the initial center, once set up, operates itself. The idea is at least, the legislation is designed to suggest that then they hire according to academic standards the way they used to be back in the good old days, before the other departments were corrupted.

It doesn't quite say it that way, but that's the idea, I think. But I think you're right, absolutely right, that how the hiring is actually done remains to be seen and might determine whether this experiment is a success. I'm still hopeful, but.

>> Eugene Volokh: So, Erwin, I wanted to actually I'm sorry, Erwin, I want to make sure you can respond to it.

 

>> Erwin Chemerinsky: James, no, please.

>> Eugene Volokh: So I wanted to ask, shift the subject a little bit to the classroom. So one of the factors that arises with regard to the classroom is the teacher is teaching to a captive audience of students. Now, that term sometimes has been abused captive audience.

But here it does seem pretty apt that the students are brought there by the university. They are sometimes required to be there if it's a mandatory class. Now, it's true they don't have to be at the university, but they do if they wanna be able to take advantage of this experience, which for many people is just tremendously important.

One of the most important benefits that the state provides, especially at state schools, it's somewhat subsidized and then they're being graded. You can certainly understand why students might be concerned about things that faculty would say. So the question is, should, despite that faculty have the right to teach things?

Let's assume it's not teach things that are factually false, but teach things that are at least plausibly defensible that some people find quite offensive. Let me give you one particular example. It's from a case that was just decided on Friday by district court. The case is Regis versus Cos.

I'm not sure quite how to pronounce it. And this came out of the University of Washington. University of Washington, like many universities, have these land acknowledgments. In this case, faculty are encouraged to include in their syllabus a statement that acknowledges that the post Salish peoples remain part of the community, the Puget Sound region.

And many of these land acknowledgments also sort of send the message that it's really their land that the white man stole, which may be true. But my view is always that's true of virtually all land in the world was stolen by many people many times. I wouldn't include such acknowledgement in my syllabus.

University of Washington people weren't required till they were urged to. But Stuart Regis, as a faculty member in the computer science department, had his own statement. He says, I acknowledge that by the labor theory of property, the Coast Salish people can claim historical ownership almost none of the land currently occupied by the University of Washington.

He included this on his syllabus, and this caused a tremendous amount of kind of public upsets. Students protested, some students transferred out of his class, and he was disciplined in particular ways. So the question is, does he have a First Amendment right or an academic freedom right to include that?

Now, one thing I do want to mention, one might say, well, he doesn't, because this is a computer science class. So he has no right to include his own ideological beliefs about indigenous land in his computer science class. What makes that argument complicated is the university is strongly suggesting that everybody else include the opposite views in the syllabus.

So then the question is, what is to be done? By the way, I should say he wasn't fired, and maybe I shouldn't have said exactly that he was disciplined. His merit pay was held in abeyance during an investigation. So it may be that he himself, but then was reinstated.

He was kind of admonished. It's an interesting question about whether he, in particular was disciplined, but let's just ask whether it would be permissible to demand that faculty not say what he said on threat of discipline. Long question, Erwin, but I'd love to hear your answer.

>> Erwin Chemerinsky: I'll start with the particular example, and then I'll go more generally, I don't think it would be permissible to discipline him for that under those circumstances.

I think you put your finger on the key. To the extent the university was encouraging faculty to speak with a land acknowledgement, his doing a different version of it would seem to be protected. Otherwise you really do have viewpoint discrimination by the university. I think it would be a much harder case if the university wasn't encouraging land acknowledgments and its computer science course, and he gratuitously put this in his syllabus.

But in this circumstance, I'd rule in favor of the faculty member and say it's protected. I think the more general question is an enormously difficult one. On the one hand, we can certainly identify instances where academic freedom of the First Amendment wouldn't protect what a faculty member would do in the classroom.

There's an unfortunate instance here at Berkeley where an instructor said that she would give extra credit to students who went to a pro palestinian rally that I think is not protected by the First Amendment academic freedom. It violates regents rules. On the other hand, no one can be completely ideologically neutral in the classroom.

No matter how hard you try, your views will come forward. Maybe it's in the choice of the topics you cover, the books you choose, and it's not realistic to say that a professor has to be completely ideologically neutral. Where do you draw the line? At what point does it become proselytizing in a way that's inappropriate, that I find a very hard line to draw but recognize there is a line there.

 

>> Jane Bambauer: We should stick with faculty, but now put them back in the student protest context. So at some of the universities that have had protests that have wound up with encampments and with sort of intimidation and blocking students from reaching their classrooms and whatnot, faculty have been involved.

There's also been some reporting about outside organizations providing support of various sorts. I'm wondering, well, let's stick with faculty for a second. Is a faculty member's involvement in a protest that goes against the rules? Of course they can be disciplined in some manner, but what would you do with the faculty?

Or what should a dean do with a faculty member that has, that is engaged in the sort of illegal behavior alongside the students?

>> Erwin Chemerinsky: Earlier we were talking about the relationship between the First Amendment and academic freedom. Imagine that a professor is participating in a rally on campus that violates the campus rules with regard to time, place and manner.

I don't think academic freedom likely would apply there. It's not about the scholarship to teaching, the dissemination of ideas, nor do I think the First Amendment would provide protection. In terms of if it is a content neutral, time place manner restriction that serves an important purpose and leaves open adequate alternative places for communication.

The campus can have that, and those who violate those rules can be punished. The faculty member could be punished, the students can be punished. To me, the hard question that campus faces today isn't a legal question, but a pragmatic and political question. When do they wanna enforce those time place manor restrictions?

There's an encampment here at Berkeley that violates campus rules. The campus could certainly exclude it, have it taken down, punish those who are there. These are content neutral rules. The campus has made the choice for pragmatic and political reasons to let the encampment be. Other campuses have made a different choice.

But I don't think that's a legal question, and I don't think there's been enough attention to the distinction between the First Amendment law. Which would allow the faculty member, and you're hypothetically punished, and the pragmatics and politics situation, which go to whether the faculty member should be punished.

 

>> Jane Bambauer: I agree with that. But I also assume that the standard for, punishing a student in some way is probably gonna be different from a faculty member. So I'm wondering what sort of deterrent, should be sent when faculty members do get involved in protests that are, advocating a position that the faculty member genuinely believes in.

But that nevertheless they, wind up violating rules or laws in order to help progress.

>> Erwin Chemerinsky: Really hard question, and of course, so much is gonna depend on what that faculty member did. How serious is the infraction? There's some infractions that are relatively minor, and there's some that involve vandalism, destruction of property, and violence, which are very serious.

And you're right, of course. It's easier to suspend or expel a student than it is to revoke a tenured professor's tenure. So you're dealing with different ability to impose sanctions, but it all depends on the context and the circumstances.

>> Jane Bambauer: Do you think it changes the nature of the students speech?

And maybe this relates also to the outside influences. So I think one reason campuses give a lot of latitude to student encampments, even, and protests and things that violate technical, both trivial and non trivial rules. Is that when they are, if they are sort of self organized and grassroots, it's an opportunity for students to sort of test out their voice.

Does outside influence or faculty influence change the nature or change your assessment of this?

>> Erwin Chemerinsky: No, because it's the speech that's protected by the First Amendment or the faculty member, the speech that's protected by academic freedom. I worry about a standard that focused on whether it's grassroots or self organized as opposed to outside influence.

Because we're never gonna be able to know what is the outside influence or be able to know the extent of it. Who's paying for all the tents on the campuses right now? No one knows the answer to that. To what extent are there outsiders who are part of organizing this?

Is there communication among the various groups? So to me, the question is, under the First Amendment, under academic freedom, what is the school allowed to do? And then separately, what should the school do?

>> Eugene Volokh: These are all excellent points, and we agree on much on many issues. Erwin and I are pretty far apart, and Jane is probably far apart from somewhere, both of us as well.

But on these questions, I think we agree, possibly because we're both all mistaken together. But I like to think that it's a sign that we are actually in the right. But let me ask you one particular question about the enforcement discretion point that you mentioned. It's true, enforcement discretion is in some measure inevitable.

You're never gonna have a situation where every rule is always completely enforced, but especially when the violations are really flagrant. One question that arises is, once some group is given, is cut slack once they're exempted from some rule, possibly, but just because, well, practically speaking, it's very difficult to stop them.

But possibly because there's a lot of sympathy for their perspective, at least among some important constituencies. Doesn't that mean that other groups, including ones we may all quite loathe, should be entitled to the same slack, or else it won't be a content neutral or viewpoint neutral rule anymore?

I was reminded of a case you probably very well acquainted with it. It's a 9th circuit case called Hoivie City of Oakland, and it involved an ordinance that purported to limit certain kinds of activities outside of abortion clinics. And the city defended it as being just a content neutral ordinance.

And then very liberal panel, I think the opinion was by Judge Stephen Reinhardt. Arch Liberal, says, well, in fact, there's solid evidence that the ordinance was not enforced against pro abortion speakers who wanted to speak out to oppose anti abortion speakers. It was only enforced against the anti abortion speakers.

And so now they can no longer defend it as a content neutral ordinance. So I wonder if you cut slack to a group of pro Palestinian or anti Israeli protesters, what happens when somebody says, we want an encampment to protest the genocide of the unborn? We are anti abortion, that's what we wanna do.

Or we want an encampment to protest the oppression of whites by the liberal elites. We are, maybe we are white supremacists, or we're not really, but you think we are white supremacists. Well, we're entitled to the same treatment, the same slack that was cut to others as well from these content neutral rules.

Is there a danger that refusing or declining to enforce the rules will stop one from being able to enforce them in the future?

>> Erwin Chemerinsky: Yes, absolutely, and I'll give a specific example. Sather Gate leads into the Berkeley campus. The administration has decided to allow pro Palestinian students to block the main Sather gate.

There's still small entrances on each side. Once they do that and say, notwithstanding rules, Prohibiting this, we're gonna permit it. They then have to let any group do the same thing because they can't say, we're gonna allow this group in this message, but not a different group with a different message.

Now, I understand pragmatically why they wanted to allow this. But the consequence of that in terms of the First Amendment is when your anti abortion group, or make it, any group wants to do the exact same thing, they've got the First Amendment right to do it as well.

 

>> Jane Bambauer: So does that sort of wear off over time or something? It seems sort of inconceivable that once some specific area is encamped and tolerated for more than a day or something, that the university has therefore waived all future rights to enforce the rules. I don't know where you draw that line.

 

>> Erwin Chemerinsky: I certainly think in a temporal sense, if next year another group wants to come and block sather gate in the same way that this group did for a long period of time, then you gotta allow them.

>> Jane Bambauer: Agreed.

>> Erwin Chemerinsky: Five years from now, ten years from now, can they point to this example?

I don't know where you draw that line, but there certainly has to be a content neutral application of the time, place and manner restrictions. And once the campus saying, we're not gonna enforce our time place manner restrictions for pragmatic reasons, now they've got to follow that, at least for the foreseeable future for other groups with a different viewpoint.

So that makes tremendous sense to me.

>> Eugene Volokh: Erwin, and we've been at this now, I think, for almost an hour. We usually do 30 or 40 minutes. But one of the great things about a podcast is it's not like a primetime broadcast where we fixed particular, particular time limit.

And this has been such an interesting conversation that I'm very glad, very glad that we've had it and we've had it run over. I do think that we need to let you go, Erwin, but also, I think our audience, I'm afraid, do have a limited attention span, even for such interesting topics.

So, Erwin, I just wanted to see if you had some some closing words that could end this episode for us.

>> Erwin Chemerinsky: I just wanna thank you for having an, for this discussion. Issues of free speech in schools have been there as long as there have been schools, but they seem so salient right now.

And I think since October 7, we've seen very difficult issues arise. I think that this is different than what we've seen on campuses before. I was in college during the Vietnam War and participant anti war protests. The students were overwhelmingly on one side. The students are very deeply divided right now and the division reflects matters that go to the identity of the students often in a very personal way.

And maybe to end with what we were just saying, I think the choices that campuses are making right now on how to handle this are gonna have enormous effects on what campus can and should do in the future.

>> Eugene Volokh: I think that's absolutely right. Erwin, thank you so much for coming to join us and I wish you all the best with your many travails, both the very specific ones we talked about and just the inherent travails of being a dean at any time or Dean at Berkeley I would think especially any time but especially in these times.

So Erwin, it's been a very great pleasure. Jane, it's been a very great pleasure as always talking to you and audience members. Great pleasure talking to you and we'll be back probably with our next episode probably in a couple of weeks. Thank you all. Thanks.