No, You Can't Protest in Someone's Else Home
A recent episode at Berkeley Law School shows why First Amendment lines matter
One of the important lines for the right of assembly is how much disruption and instability the law permits. The First Amendment includes one threshold distinction: assemblies must be “peaceable.” The Supreme Court has also specified that an assembly—like a speaker—cannot incite “imminent lawless action.” What other lines exist?
In the News
Last week, law student protesters interrupted a dinner for graduating students hosted by Erwin Chemerinsky and Catherine Fisk at their home. Chemerinksy is the dean of Berkeley Law School, and Fisk is a professor there.
The student group Berkeley Law Students for Justice in Palestine first circulated an incendiary and anti-Semitic cartoon of Dean Chemerinsky. The accompanying announcement decried the upcoming dinner as “the prime example of a normalization PR event that hopes to distract students from Dean Chem’s complicity and support for the genocide of the Palestinian peoples” and continued “[w]hile Dean Chem wants to wine and dine his students, he continues to approve of UC investments into weapons companies like Blackrock, Lockheed Martin, RTX, Northrop, and more.” The group urged students to boycott “all of Chemerinsky’s events.”
At the dinner with roughly 60 law students in Chemerinsky’s back lawn, one of the student protesters wearing a keffiyeh and hijab delivered an anti-Israel speech through a microphone. Chemerinksy asked the protesters to leave his house, and they refused, with one of them noting “we have attorneys” and protesting was their “First Amendment right.”
In My Head
The incident at Berkeley has received extensive media coverage and legal commentary (which Paul Caron helpfully synthesizes here). I’ll add a few thoughts about the implications for the right of assembly and its limits and the strategic considerations of protest.
Chemerinksy is one of the leading constitutional scholars of his generation and knows a thing or two about the First Amendment. In response to last week’s events, Chemerinsky correctly noted the students’ right to publish their cartoon, even while using the opportunity to condemn its substance:
I never thought I would see such blatant anti-Semitism, with an image that invokes the horrible anti-Semitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment.
At the same time, in response to the dinner disruption—and with at the time two more dinners still to come—Chemerinsky made clear that “[a]ny student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.”
As I have previously noted, the right of peaceable assembly is not unlimited. The key case pertaining to assembly and private residences is a 1988 Supreme Court decision, Frisby v. Schultz. The case involved abortion protesters who sought to enjoin enforcement of a municipal ordinance that prohibited them from picketing in front of a private residence. The protesters had previously picketed on a public street outside the residence of a doctor who performed abortions at two local clinics. As the Court noted, “[t]he picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct.”
The Court upheld the ordinance based on the “significant government interest of protecting residential privacy,” which included protecting “unwilling listeners within their homes from the intrusion of objectionable or unwanted speech.”
In Frisby, the picketers were “generally orderly and peaceful” and conducted their protest on the public street outside of the private home. As the Court noted, “Our prior holdings make clear that a public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood.” The balance of First Amendment interests may have been challenging in that case, but the Court sided with the restriction on protest.
The Berkeley protest is a far easier case: the protesters were at Dean Chemerinsky’s home, standing on his lawn. And, as law professor Eugene Volokh has noted, Dean Chemerinsky’s home doesn’t become open for public speech even when he hosts official law school parties there.”
The law is clear, and the misguided nature of the strategy is also clear. As with many student protests I have observed in recent years, the methods, tactics, and targets of activism are not always well-aligned with the goals and systemic change these protests purport to desire. In this case, the protesters are alienating their teachers, classmates, and future employers in ways that will likely hinder their future ability to be excellent lawyers. They are enlisting little sympathy for their cause beyond a few like-minded individuals who already agreed with them.
None of this is to critique the protesters’ underlying cause or the urgency of the issues now unfolding in the Middle East. There are good reasons to be concerned with Israel’s ongoing actions and the relative lack of attention on the world stage given to civilians suffering in Gaza. But this performative student effort seems quite misguided. As I wrote in an earlier post:
Strategic incivility may be more art than science, but it is not without its own set of rules. More generally, civility norms can only tolerate so much incivility before they collapse entirely, at which point strategic incivility will no longer be very strategic. There are certainly occasions for angry protests and disruptive speech. But it may be that complying with civility norms will prove more effective over time.
If you want to change public opinion, ruining a dinner party of your teachers and classmates may not be the best strategy.
In the World
In a timely happenstance, the Columbia Law Review has announced its 2024 Symposium on the Law of Protest. From the call for submissions:
Though protests are an increasingly common aspect of life in the United States, they are governed loosely by murky and often ill-enforced laws and policies. This Symposium will shine a much needed light on the current state of protest law, bringing together scholars, practitioners, and activists to consider where the law should go next. It will include topics such as Protests and the Constitution, Policing and Prosecution of Protests, Protests on Campus, and Comparative Perspectives from Protests in Other Countries.
The editors have requested abstracts 1–2 pages in length that “must include more than just the general area of law which the author hopes to explore.” They plan to review submissions on a rolling basis, beginning on April 22, which means this might be a writing weekend for some of you!
I mentioned that I’ll be highlighting some of my ongoing engagement with Learning to Disagree. This week, I’ll mention a recent Faith Angle Forum podcast I did with POLITICO’s Matt Kaminski. Matt and I covered a lot of ground in a wide-ranging discussion moderated by Josh Good.
Very good article. Since publishing, there have been similar instances, such as at Pomona.
Also, I am most of the way through "Learning to Disagree," and think it is quite good. My main question is, do you think civil disagreement will remain possible with increasing attempts to shut down conversation in the name of "tolerance" (ie: the Paivi Rasanen trial, the Brussels mayor shutting down Yarom Hazony's conference, Scotland's anti-TERF "hate speech" law, etc.)?
Yes, John.
The right of peaceful assembly pertains.
Good to see Mav represented.