Erwin Chemerinsky should address Palestine exception to free speech

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Erwin Chemerinsky, the new dean of Berkeley Law, has been making waves in campus politics regarding free speech issues. Chemerinsky is a major constitutional law scholar, an outspoken liberal and a free speech absolutist. He’s the perfect figure to defend the UC Berkeley’s administration from people who are angry about far-right provocateurs and hundreds of cops being on campus. At speaking events and in writing, he has mainly argued that the administration is following First Amendment requirements to not discriminate on the basis of political ideology.

At a recent administration-sponsored Faculty Panel on Free Speech, the audience applauded when professor john a. powell said “the defining issue of the country is white supremacy” and not free speech. It was refreshing to hear this after every other panelist (including Chancellor Carol Christ and Chemerinsky), all of whom were white, failed to even mention the issue.

Free speech does matter, but discussing it is useless without the pressing context of racism. “Free speech” alone cannot explain why the administration just spent $800,000 on an unsponsored, 15-minute appearance by the racist Milo Yiannopoulos. To explain that, we have to include an analysis of the growing far right movement that is trying to use Berkeley as a hunting ground. We have to contrast the city’s protection of racists to its rejection of thousands of anti-racist protesters, to whom it denied rally space Aug. 27. When we talk about free speech, we have to talk about the “Palestine Exception to Free Speech,” the administration’s temporary suspension of a Palestine-related course last year, and chilling posters on campus smearing Palestine scholars as “terrorist supporters.” Both the administration and Chemerinsky, however, disregard this context of racism.

Chancellor Christ has only once publicly mentioned “racism,” and that was only to describe how it makes “the issue of free speech even more tense.” The administration, by not discussing the serious threat posed by violent bigots and police militarization, gives legitimacy to the far-right’s facade of “free speech.” Chemerinsky unfortunately contributes to and legitimizes this distorted conception of free speech sans racism. This also means that suppression of anti-racist speech is left out of the conversation, which instead becomes exclusively about how the rights of racists and right-wingers are supposedly under attack.

Chemerinsky’s new book, Free Speech on Campus, exemplifies this flawed approach. His central thesis is that “all ideas and views should be able to be expressed on college campuses, no matter how offensive or how uncomfortable they make people feel.” He makes a strong case, going through a history of abolitionists, socialists and anti-war activists fighting for their right to speak freely about important causes, expanding the protections of the First Amendment  which later helped to protect the civil rights movement. His point is that liberal students should care about free speech because “social progress has come about, not as a result of silencing certain speakers, but by ensuring that previously silenced or marginalized groups are empowered to find their voice and have their say.”

The problem, however, is that the book’s comprehensive title, Free Speech on Campus, is not reflected in its content. Chemerinsky does not discuss the campaign against pro-Palestine activism, which Glenn Greenwald refers to as the “greatest threat to free speech in the West.” In a 2015 report on “The Palestine Exception to Free Speech” and a 2016 update, the Center for Constitutional Rights and the Palestine Legal detail hundreds of incidents of suppression of Palestinian human rights advocacy, the majority of which are on college campuses.

Chemerinsky focuses almost exclusively on calls to silence racist and right-wing speech. He makes only one mention of Steven Salaita, whose offer for a tenured position at the University of Illinois was withdrawn because of his critical tweets about Israel during its 2014 invasion of Gaza. That is one of only three mentions in the book of suppression of pro-Palestine advocacy. This is especially troubling because of Chemerinsky’s explanation of why many liberal students today are not free speech absolutists. He says the problem is that his generation grew up when anti-war activists were facing state repression of their speech, but the current generation “did not grow up at a time when the act of punishing speech was associated with undermining other worthwhile values.” However, Salaita is just one of hundreds of examples of the concerted, ongoing campaign to punish anti-racist speech. Chemerinsky fails to foreground or seriously discuss this major campus free speech issue and in doing so actually  contributes to the problem of non-association between speech and “other worthwhile values” like anti-racism.

Everyone opposed to white supremacy should defend the right to free speech, because we need it to build a strong movement . We should reject Christ’s use of “free speech” as a cover to militarize the campus and provide a $800,000 platform for far-right provocateurs, and we should criticize Chemerinsky’s inattention to the Palestine exception to free speech. Anti-racists need to develop and assert a fuller vision of the right to free speech.

Mukund Rathi is a law student at UC Berkeley.

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  • Mike

    Very important article, thank you.

  • SamXie

    The “Palestine exception” seems to mean that Palestinians alone are immune from criticism. if you look locally, at least, you see the threat to free speech is coming from those who call themselves “progressive”. Just a few miles from here, an Oakland bakery is regularly picketed because of its glorification of a confessed, convicted terrorist. Reem Assil, the owner of the Oakland bakery responded to lawful and protected free expression by suing the protesters- and has been repeatedly denied temporary restraining orders by the court because she seeks not only an end to the protests, but for the protesters to stop discussing the matter in the media. It a classic sweeping attempt to stop not only all criticism, but all discussion as well. If Reem Assil weren’t a Palestinian activist, the National Lawyers Guild and the American Civil Liberties Union would have been all over this. And if Reem Assil weren’t a Palestinian activist, the mainstream media would have picked up this story months ago.

  • Oakley

    farcical article
    No group of people is as coddled or as detached from agency of theor actions as the Palestinians

  • Eric11210

    Oh pulease. Berkeley is well known for the efforts to shut down pro Israel speech and to prevent anyone who tells the truth about the so called Palestinians from speaking. This author is being disingenuous in his or her desperation to push the tired lie of the so called Palestinians.

    • Arafat

      I think we should help Hamas create an Islamic hellhole in lieu of the amazing nation of Israel. To Leftists this makes sense.

      Question…What makes Leftists insane and/or stupid?

  • Blake

    “When I asked Lee Rowland, a senior staff attorney with the A.C.L.U.’s Speech, Privacy, and Technology Project, about where she saw the biggest threat to campus free speech, she didn’t hesitate: “I think the most pernicious pattern of censorship on college campuses might relate to Palestinian activists.”” – Michelle Goldberg, “The Worst Time for the Left to Give Up on Free Speech” NYT op-ed Oct 6 2017

    • Eric11210

      Only because you sick jihadis think that it’s your right to spread lies about the joos while at the same time trying to shut down anyone who tells the truth.

  • Andrea Alice Trewinnard

    Amazing analysis and article. Makes me feel like I am not alone:)

    • John Hudson

      If you feel alone you probably are.

      • Blake

        Well she ‘s not alone she has the respect of every human being

        • John Hudson

          I have just attempted to post a reply to the above comment from Blake. It has to be “approved” by the D.C. Apparently the D.C. does not value diversity of thought enough to waive its right to “approve” controversial comments..

          • lspanker

            I have long suspected that the Daily Cal has a couple of staffers with hot buttons on particular issues that feel compelled to moderate comments when the argument isn’t going their way.

          • John Hudson

            Of course! The media, including the DC, is in the hands of left wingers. They are not going to allow the media they control to be used to defeat them.

        • Eric11210

          Maybe every insane human being who thinks that blowing up a discothque full of teenagers or slitting the throat of a seven month old baby in her crib or hacking to death rabbis at prayer is legitimate “resistance.” However, us sane human beings, i.e. the ones who realize that such things are abhorrent and wrong, regardless of imaginary claims your people have want no quarter with such people.

          • lspanker

            Maybe every insane human being who thinks that blowing up a discothque full of teenagers or slitting the throat of a seven month old baby in her crib or hacking to death rabbis at prayer is legitimate “resistance.”

            Cowardly ignoramuses such as Blake will never address those points. They will merely ignore them and keep bleating the talking points that have been stuffed into their empty little skulls…

        • lspanker

          No respectable human being makes excuses for people who have so much hysterical hatred in their hearts that they encourage their own children to commit suicide in the hopes of killing their enemy. This casting of the Palestinians as victims is clearly a form of mental illness…

        • Arafat

          “she…has the respect of every human being.”

          Like I said what makes Leftists so stupid and/or insane?

    • lspanker

      Nah, there are plenty of misguided fools out there. You would feel right at home at one of those SJP rallies where they scream like loonies and blame Israel for all their problems…

  • Man with Axe

    Anyone who feels he needs to draw attention to himself by refusing to use capital letters in his name is not worth listening to. Of course he would spout the same tired claptrap that suddenly has gripped progressives like a fever dream, “…the defining issue of the country is white supremacy.” It is if you are looking for reasons to explain your own failures. Otherwise, you should focus on why blacks have such exponential levels of criminality, single motherhood, and such a large academic performance gap. It’s white supremacy that is keeping you down. I get it.

    • Blake

      Human Rights is the issue here, not a name in Capital letters.

      • lspanker

        The Palestinians get an F- grade when it comes to human rights. They reject any and all attempts to seek peace with their neighbors because they would rather use their own children as cannon fodder than acknowledge Israel’s right to exist.

        • Blake

          ‘israel’ is oppressing Palestinian basic freedoms so I dont know how you think you can judge the oppressed. Dont seek anymore of my time. You are a paid troll for the oppressors

          • Eric11210

            According to you, anyone who points out the obviously ridiculous lies you peddle is a “paid troll.” I do wish I were paid for this. I could retire from my real job.

          • lspanker

            ‘israel’ is oppressing Palestinian basic freedoms

            Nonsense. The Palestinians continue to use the Gaza Strip as a staging ground for attacks against Israeli citizens, and dumb bunnies like you still act shocked when they choose to retaliate against the Qassam, mortar and katyusha sites that the Pallies choose to locate in civilian facilities, which makes them legitimate military targets per the Geneva accords.

          • Arafat

            Islam oppresses all of their basic freedoms, Blake.

            WTF was I thinking the Saudis just gave women the right to drive (as long as they are accompanied by a man).

      • Man with Axe

        There are lots of issues here. One of which is the constant complaint of white supremacy. And, it matters to me when people are purposefully pretentious. A professor does not give his name in lower case letters unless he is making some kind of statement, which I can only assume has something to do with his views on white supremacy, which, truth be told, is in reality a belief he probably has in black supremacy and the evil of white people. And PROFESSOR POWELL himself said the issue is not free speech.

        Of course, I admit that I have as much evidence for these assumptions as he does for his claim of white supremacy.

      • Eric11210

        Yeah, human rights. You jihadis believe in such things only when you can use them to tell lies about joos.

  • Killer Marmot

    For about the twentieth time, a Daily Californian article blames conservatives for the cost of security rather than those who make the security necessary — the Antifa.

    • SamXie

      I’m curious- how much di the fire damage and broken windows cost the University, the last time the antifa came knocking? How much did Berkeley merchants have to pay for broken glass, graffiti, and vandalism the last time the antifa came knocking?

  • Killer Marmot

    Anti-racists need to develop and assert a fuller vision of the right to free speech.

    “Fuller” here meaning “more restrictive”.

  • thompson_richard

    I’ve read his books and followed his career since UC Irvine’s Law School was established, and Chemerinsky’s reputation is much overblown.

  • lspanker

    Like most idiot hard-left types, the author fails to differentiate between constitutionally protected free speech by individuals and groups, and using the cover of a college course to peddle a particular political agenda.

    • thompson_richard

      Do you surmise that by calling the President a moron that the Secretary of State was peddling “a particular political agenda”?

      • lspanker

        Tommy’s non-sequitur of the week…

    • Blake

      Human rights is a noble ‘agenda’

      • lspanker

        The pro-Palestinian activists aren’t fighting for “human rights”. They are merely enablers of a fanatical cult that finds using its own children as suicide bombers to be preferable to finding a way to peacefully co-exist with Israel.

        • Blake

          They have no rights at all under this impostor on their land

          • John Hudson

            What land is whose has always been determined by the sovereign power governing that land. That’s one thing that makes California different from most other places. When California was ceded by Mexico a clause in the Treaty of Guadalupe Hidalgo provided that the land grants of the Mexican government and the King of Spain would remain in full force and effect. So the California Land Commission, a tribunal established to resolve land titles in California after statehood, affirmed the claims of 604 of the 813 individuals claiming under Spanish and Mexican land grants. There is no such treaty in the middle east. Israel is doing what almost every sovereign power does.

          • Blake

            ‘israel’ has NO legal moral or ethical right to exist in Palestine at the expense of the Palestinian people.

          • Eric11210

            Is Palestine located next to Narnia?

          • John Hudson

            1) In other words you think that Israel has no right to exist.

            2) That’s why the situation has reverted to the general principle that the sovereign power in control decides what land is whose. The power that wishes to control the land in question, but does not, usually doesn’t like the land ownership decisions made by the sovereign power in control of the land in question. As I pointed out above, California is different.

          • lspanker

            Israel ceded the Gaza Strip to the Palestinians in 2005. How come instead of pursuing peace with Israel and imposing some semblance of law and order in their land, the elected government of Hamas chose instead to destroy the infrastructure the Israelis left them, engage in a bloody purge against Fatah, and use school, hospitals, apartment buildings and other civilian facilities as mortar and rocket fire bases to target Israeli cities, making those facilities into legitimate military targets?

            Blake, you are an ignoramus and a fool. What passes for Palestinian “leadership”, at least in the West Bank, isn’t the least bit interested in peace or human rights. It’s all about using the Palestinian people as cannon fodder in the Muslim world’s insane, suicidal, and eventually futile war against Israel. You’re either too stupid or too blinded by your own wacko ideology to see the truth.

          • Arafat

            Blake, wherever Muslims reside it is on land conquered and this includes Judea and Samaria.

          • Oakley

            There is no Palestinian people

          • Ross

            “How long must a people exist before they’re allowed to be free?”…Blowin’ In the Wind, Dylan. The Zionist movement was created to address this question. Unfortunately for all involved, they decided to ally themselves with (British) imperialism which held that (White) power should decide who would rule and who would serve the rulers, and that included Palestine and Palestinians. It therefore Jewish desperation to implant Jews in Palestine as a , and the rest is tears, including my next of kin, only sibling, trying to right a situation where his kibbutz sits on stolen land of people sitting in a refugee camp for the last 70 years. There is no justification for that, only allowing those injured parties (Palestinians) justice, i.e. their clearly stipulated rights of return or compensation and equal due process under laws they have a hand in fashioning. Let’s stop rationalizing international war crimes, as in Occupation and all the , that comes with it.

          • Oakley

            You win SJW bingo for today

          • lspanker

            All true, but I’m willing to bet Blake here is one of those retards who buys into the whole “we stole California from the Mexicans” nonsense…

          • John Hudson

            He was probably spoonfed it on his mama’s knee.

          • Eric11210

            It’s not their land. Problem solved.

      • Eric11210

        It sure is. Would be nice if your people believed in them.

      • Arafat

        Human rights? As in Hamas throwing Fatah supporters off of rooftops?