Erwin Chemerinsky

The events earlier this month in Charlottesville once again highlighted the tension between free speech and safety. This tension is particularly acute on college campuses where beyond simply protecting First Amendment rights, schools aim to expose students to new ideas and to develop critical thinking skills. Erwin Chemerinsky, the dean of the UC Berkeley Law School, examines the polarization of expression and protection in his new book,”Free Speech on Campus,” which he co-wrote with UC Irvine Chancellor Howard Gillman. Chemerinsky joins us to talk about how schools can be inclusive and nondiscriminatory, yet still encourage expression and exploration of ideas. We’ll also hear his thoughts on the far right-wing rally and counterprotests planned in the Bay Area this weekend.

Berkeley Law Dean Erwin Chemerinsky Explores Free Speech vs. Public Safety 24 August,2017Amanda Stupi

  • geraldfnord

    Does Dr Chemerinsky think that Chaplinsky v. New Hampshire has, in effect, been forgotten? A lot of the supposèdly protected speech in question seems in fact designed to inflict injury, and some of it to incite an immediate breach of the peace….

  • Livegreen

    I believe cities have both a right to require permits to demonstrate and to disperse crowds when they don’t abide by permits, become violent or don’t disperse when requested. If that is so, why doesn’t the press cover viations by protesters?

  • Curious

    All Americans should be alarmed by increasing efforts on the left to suppress free speech. The left has become intolerant of any view or opinion not in lockstep with its own.

    • David

      I don’t know what the “left” is but, i agree; all of us should be alarmed by efforts to suppress free speech.

  • Noelle

    I thought he was at UC Irvine? Is this his new job?

    • David O’Brien

      Yes.

  • EIDALM

    Hate speech should never be called free speech as it always leads to division and used by extreme right wing militants groups to use violence against innocent minorities in the country with lots of severe consequences to the society at large.

    • Curious

      Define “hate speech.”

      • Skip Conrad

        Saying that you hate intolerance, hate racism, hate litter, hate pollution, etc.

        Look, John Schenone, a San Francisco senior was convicted on 6 counts of vandalism and hate crime for scrawling “No More Chinese” on various locations in the Bayview. I can understand the vandalism, but not the hate crime.
        What if he had written “Yankee Go Home”, or “No More Republicans”?
        This case merely cheapens the concept of hate crime, to the point of making it meaningless. In other words, hate speech is a complete joke.

    • David

      “…low lifer ignorant idiots in the country.” Is this not hate speech?

  • EIDALM

    Hate merchants idiots the like of Yannpoulus Milo and Ben Shapiro truly have nothing good or of any value to say except empty hateful words and make lots of cash in by quack, quack hate words that resonate well with the country hate groups and the least mental common denominator hateful; low lifer ignorant idiots in the country.

    • Curious

      If you don’t like America anymore, please leave.

      • ed

        I am real American who love this country, not foolish idiots ignorant people like you…..

        • Curious

          Great debate skills. A true leftie.

    • David

      You do realize that you’re spewing hate?

  • Another Mike

    Why is John Yoo, author of memos justifying the use of torture by the George W. Bush administration, still on the Berkeley Law School faculty?

    • Skip Conrad

      FSM – Freakin’ Sadistic Methodologies.

  • Curious

    Hopefully, there is a splash guard on the microphone.

  • Noelle

    Really interesting about students today and their ignorance of the history of free speech. I can see why they want people to feel included but we go to college to be exposed to new ideas.

  • Bob

    As an attorney and unaligned student of politics I understand and appreciate the professor’s adherence to the First Amendment but I take issue with the notion that we truly have “free speech” under the First Amendment. This orthodox language used around the Amendment, speaking of it as an unfettered “right” particularly due to subjective “time, place, and manner” restrictions, creates a misperception amongst the general public and contributes to the lack of real discourse, shouting matches, and violence, we now see.

    • geraldfnord

      Fraud, libel, perjury, suborning perjury, slander, sedition of active duty troops in time of war, incitement, fighting words….

      (Exercise: what are analogous Second Amendment exceptions? ‘Menacing’ comes to mind, a few I just listed are like using a weapon directly in the commission of a crime….)

  • Ben Rawner

    What does your guest think of Citizens United, and it’s defense of money as speech, so it should be unlimited?

    • Curious

      Barry bought the presidency. Hillary spent 10 times more than Trump and still lost. Sometimes even money is not enough.

      • Ben Rawner

        That’s true. I was just wondering the guest’s opinion since he is both all about the FSM and seems to lean left as well.

        • Another Mike

          The Flying Spaghetti Monster?

  • Noelle

    Does anyone know why they changed the name of Berkeley Law School from Boalt Hall?

  • Allison

    Could the professor please elaborate on the fundamentals of free speech in relation to the Paradox of Tolerance as described by Karl Popper in 1945 at the end of WWII? I understand freedom of speech as an unalienable right, but where does our moral obligation to confront and condemn objectively harmful hate speech come into play? How do we confront speech that threatens violence against another party?

    • Curious

      Why does the left hate free speech?

      • Landstander

        Why do you waste time asking leading questions like that?

  • Opinionizmioyn

    What”s his opinion regarding the Google firing fired a senior software engineer for authoring a 10-page screed condemning the company’s diversity efforts and claiming men are biologically more predisposed to working in the tech industry than women, Bloomberg reports.
    Sean

  • trite

    Please give me examples of micro aggression. It would be useful to define your terms.

    • Curious

      Sophistry.

      • trite

        Define your terms.

        • Curious

          “Sophistry” is the use of fallacious arguments, especially with the intention of deceiving.

    • geraldfnord

      A canonical example is the sansei continually asked ‘Where are you really from?’ after saying they’re from (e.g.) Stockton: aggressive because it assumes that the questioner has a right to say that the response is inadequate when it would very likely be for a white-looking individual and also implies a lesser claim on citizenship, ‘micro’ because any one such is not that harmful, may be laugh-offable, but getting such once a week or once a day would pall.

      Any single free cab refusing to stop for you, any single engineer assuming you’re there to bring the coffee…not being beaten badly by a representative of the Masculinity Police, but getting ‘f-gg-t’ screamed or whispered at you every day, your bicycle vandalised weekly.

  • David

    i hate haters. Apart from the logical entailment that I hate myself, should my remark be suppressed? i hate arsonists. i hate pedophiles. i hate rapists. i also hate religion. this list goes on. who’s objecting? wait…i hate Europeans, Euromutts to be exact (once again, myself). So…?

    • Skip Conrad

      Shame on you. That’s hate speech.

  • OhioAhmad

    How does the professor reconcile the fact that the administration at UCB is quick to quell the free speech of students when it comes to Palestine advocacy? I’m referring to the canceled then reinstated class last year on Zionism at UC Berkeley, the passage of BDS by student legislation throughout the UC SYsyem;
    and also nationally as in the case of Salaita at UI and the passage of anti-BDS legislation in states (and the federal anti-BDS working its way in the Congress).

    How long are students and those not in power suppose to take this injustice to their freedoms of expression?

    Does the Professor know what happened to Dorothy Thompson re: Palestine?

    • Noelle

      Earlier he did talk something similar happening when he was at UC Irvine

  • Kurt thialfad

    I’d like Chemerinsky’s take on the trend in California to use government money for the legal defense of aliens in immigration court. We know the 6th Amendment offers the right to an attorney, and government-paid attorney, only in criminal court, not in civil court. In immigration court the INA states “…the alien shall have the privilege of being represented, at no expense to the Government..”. (240 – REMOVAL PROCEEDINGS)

    Are the state and city of San Francisco overstepping their authority, and violating the US Constitution, by allocating such monies?

    • red_slider

      It’s a form of political schizophrenia, the division of codes that isolates the undocumented from the processes of the criminal codes (Title 18 USC) and their protections while subjecting them to far greater punishments under the administrative codes of Title 8, a land where detentions can be indefinite, where warrants need not be issued, where presumptions of guilt outweigh proofs of innocence, and where ‘human necessity’ is never an argument. But when it comes to whipping the public pitchfork to a frenzy, they are always “criminals” and never simply undocmenteds–people without papers. Completely schizy.

      • Curious

        The are “simply undocmenteds–people without papers”

        LOL!!!

  • Skip Conrad

    How do you like UC President Nepalitano, a lawyer such as yourself.

    • Curious

      Chemerinsky is not a lawyer. He is an “academic.”

      • Another Mike

        Chemerinsky has been licensed to practice law by the state of Illinois since 1978.

        • Curious

          Being licensed and practicing are vastly different.

      • Skip Conrad

        They are both lawyers who are working in academia.

  • trite

    What is micro aggression?

    • Landstander
    • Curious

      It is a term being promoted by the left to assist them in suppressing free speech.

    • Curious

      Administrators of the UC system want members of campus to avoid the use of racist and sexist statements, though their notions about what kinds of statements qualify are completely bonkers. “America is a melting pot,” “Why are you so quiet?” and “I believe the most qualified person should get the job,” are all phrases that should raise red flags, according to the UC speech police.

      Saying, “There is only one race, the human race,” is offensive because it denies “the significance of a person of color’s racial/ethnic experience and history.”

      “America is the land of opportunity,” implies that “People of color are lazy and/or incompetent and need to work harder.”

      Asking an Asian, Latino, or Native American “why are you so quiet?” is tantamount to giving the order “assimilate to dominant culture.”

    • Curious

      At the University of North Carolina, it’s not just the students walking on politically correct eggshells.

      Guidelines issued on the university’s Employee Forum aim to help staff avoid microaggressions in their interactions by cautioning against offensive phrases such as “Christmas vacation,” “husband/boyfriend” and “golf outing.”

      The guidebook, first reported by Campus Reform, categorizes examples of potential microaggressions by “social identity group,” including race, gender and sexual orientation.

      Under the “Religion” tab, the guidebook says organizing vacations around Christian holidays further “centers the Christian faith and minimizes non-Christian spiritual rituals and observances.”

      With regard to “gender” microaggressions, the guidelines discourage comments such as “I love your shoes!” to female colleagues or otherwise complimenting the appearance of women.

  • Krasney Quite Enjoys Democrats

    Scott, I appreciate you having a free speech advocate on. But, damn, this was a boring show. How many times are you going to ask Chemerinsky the same question?.. and then have multiple callers ask it again! Snore!!!

    • Noelle

      It was refreshing to me to have someone calmly talk about free speech for a change.

  • Another Mike

    Wrongful termination for exercising a constitutional right. Discussed in the June 1992 issue of the Berkeley Journal of Employment and Labor Law.

    http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1210&context=bjell

  • Landstander

    Let everyone speak their minds. If you don’t like their ideas, communicate better ideas.

    There will always be gray areas where speech crosses a line in to violence. But we can’t preemptively block speech in the hope that we prevent all incitements of violence. Like with all crimes, we can’t punish people until they have actually committed the crime. We have to handle it the hard way: rationally and on a case by case basis.

    We only got to this point because we all, collectively, tried to push away and hide white supremacy and other hateful ideologies. That tactic failed, which shouldn’t be surprising, because you can’t win a war if you don’t acknowledged that your opponents exist.

    • Lelo C

      i agree. let them speak but don’t fail to speak back if you disagree. and talk back loudly. ie. counter protest or other ways of disagreeing(voting is the most effective , so VOTE!) but try tactics so no violence occurs. when you use violence you’re giving them more ammunitions to deflect and play victims which is their primary strategy. Kids today grow up in a less racist/discriminary environment(esp. in calif.) what’s happening today is prob. a shock to them. But for the older among us, who grew up in the 70’s or 80’s and NOT white, discrimination /racism was a weekly occurrence. It went away in the 90’s and 2000’s but now came back in full-force. i empathize with today’s youth bc it’s all going backwards. But shutting them down completely is not the answer. you only give them power. if they have a rally have another and BIGGER peaceful rally elsewhere in town. don’t engage violently but show them the peaceful among us are bigger in number.

      • Landstander

        And the truth is, those who take to the streets against hate have much bigger numbers. It’s a failure of the media to give better context to these protests. The Women’s March was one of the largest single day protests in US history, but it never got a headline that mentioned that important fact.

        Which means we need to keep coming out, and in even bigger numbers.

        • Another Mike

          The Women’s March was promoted as a pro-woman event, and not as an anti-anything. People specifically disclaimed it was an anti-Trump protest.

        • David O’Brien

          Which is why I disagree with your advice on how to respond to these white supremacists. You do NOTHING. Don’t give them an audience.

          Don’t counter-protest on the same day at the same or near the same place. Doing nothing means the news cycle is “100 morons stand together like outcasts that couldn’t get a date in the corner of the dance” on page 20. Otherwise you turn the story into front page news. Additionally you stoke the passion of their supporters and let them play the “harmed” one (either physically or Bill of Rights) to use that to recruit more of their kind that were less engaged or still “on the fence”.

          Holding a counter protest creates an opportunity for the anarchist (who want everything escalated to a full-fledged conflict and violence) to do their thing using the name of your group/cause.

          • Landstander

            Personally, I think it is long overdue for us (the collective us) to call out and discuss white supremacy. It’s always been here, but the PC movement pushed it out of the mainstream. Now it’s coming back.

            Let’s stop trying to hide it away and do what adults do and confront it.

  • reich.jonathan

    Republicans complain that university professors are too “liberal.”
    What they mean is that university professors are educated and for the most part present education and ideas that are often not “black or white.”
    Republicans complain about this famously saying that “liberalism is equivocal” or ambivalent.
    What many who complain about the liberalism of university faculty want is an end to any courses that are critical of the U.S., an end to “gender” & “ethnic” studies courses, an end to courses that present historically accurate information about “Marxism.” (They call professors “Marxists”)
    What the Republican base wants is university courses on “creationism” as a legitimate theory and American history presented as American “exceptionalism” and for universities to be job training for corporate America.
    Don’t believe me?
    Look who the Republican voters elect as their representatives: an abundance of ignorant bigot science deniers who promulgate lies and attempt to cover up the truth. (Their are far too many examples to list here but for example, Trump spent years promoting the lie that Obama wasn’t born in the USA, says climate change is a scam promoted by the Chinese, and defended the neo nazis and white supremacists in Charlottesville).
    Would Chemerinsky be OK with a gender studies course taught be Mike Pence?
    How about a medical ethics course taught by Michelle Bachman?
    The young Republicans on campuses, and especially their faculty advisors, should be ashamed of themselves for bringing self-promoting clowns like Ann Coulter or self-promoting pedophilia promoters like Milo Yiannopoulos to campuses. The Republicans reveal who they really are by promoting these types of “free speech.”

    • Curious

      Wow! So much ignorance.

    • WIWR

      Intolerance is the shield of the left.

      The desire to provide safe space (i.e. prohibited free speech zones) to protect those snowflakes incapable of dealing with hurt feelings.

  • ed

    Erwin Chemerinsky was trying too much to be politically correct but was wrong on many points….Sad he is a dean at my great university U C Berkeley.

    • WIWR

      Yes Ed, free speech should be restricted to only speech you agree with.

    • David O’Brien

      Useless comment — *enumerate* what the “many wrong points” were. Give examples of what you felt was being politically correct.
      Lets have a dialog and give the rest of us enough information to understand your POV. You might even change or influence others thoughts.

  • red_slider

    I found it interesting that the show and comments did not question the fact that free-speech issues and its supportive activism (on any side) mostly looks to college campuses to measure the allowances and define the necessities. True, college students and faculty may believe they invoke the most urgent voices that need to be heard, have the freshest ideas and know the most about what needs to be said. But, are they, do they, can they? Chemerinsky said any number of times, “Free speech does not apply to private institutions.” The constitution is entirely constrained to citizen arguments with its government. The right to free speech is intimately associated with the rights to assemble and to petition the government for a redress of grievances. a conversation between citizen(s) and government, not student and Chancellor or Academic Senate and Dean.

    That being the case, it is legitimate to ask why the focus on free speech and its history is so much devoted to campus appraisals. The Civil Rights movement was indeed an application and insistence on free speech. However, that was only incidental to the rights of assembly and redress. I can’t recall many times during those explosive days that ‘free speech’ issues took front and center stage, even if they were always engaged. Campuses may be the places most likely to confront these matters since students can generally fortify themselves in the heady mix of ideas with the idea that they have little to lose (getting expelled? Arrested?) by demanding more.

    But free speech and the First Amendment isn’t about them and that. It’s about rank and file citizens, Americans in general and the importance that staking claim to confront their government has in operating a democracy. Free speech is not really about ‘campus space’. It’s about the public spaces across the nation and the provision and right to use them to address any and all grievances a citizen(s) may have with their government. The most recent example was our own Occupy movement which was specifically about occupying public spaces for that exact purpose — free speech. The most disturbing feature of occupy was in its failure to secure its occupied spaces and maintain the people’s free speech rights within those early won spaces. Occupy was really intended to clear a space for the voices of those with the greatest need to speak– those excluded, locked out, disempowered, vulnerable. Those without jobs or adequate wages, shelter or food, healthcare or other necessities of life. Students might show up, of course, with their grievances too. But it was really about America’s grievance with its government on every front, in every instance that is systemically marginalizing and oppressing its own citizens. That is an assemblage which campuses can neither invent nor contain. Free speech was the real mission of Occupy, and it failed most where it reduced that mission to the many issues (of content) that Occupiers thought more important than to insure themselves they would have a unassailable platform from which to speak (the parks and town squares and other venues across America) that would be there tomorrow, and the next day and for the remainder of American history. It’s good that students to foment the early stages of questioning their government’s behavior, as they do. But much is lost when we forget, free-speech is not a student issue.

    • Another Mike

      The book was about free speech on campus. If you want him to write a different book, send him a letter.

      • red_slider

        my point, exactly.

  • Curious

    After years of thinking it over, Floyd Corkins finally had a plan.

    He’d bought a gun and learned how to use it. He’d loaded three magazines. And he had stopped by Chick-fil-A to pick up 15 sandwiches, which he planned to smear in the dying faces of staffers he expected to kill at the Family Research Council in Washington.

    In the 2012 shooting at FRC that injured a security guard, convicted domestic terrorist Floyd Lee Corkins II said he targeted the group because the Southern Poverty Law Center (SPLC) identified them as a “hate group” due to their traditional marriage views.

    “Southern Poverty Law lists anti-gay groups,” Corkins told interrogators in a video. “I found them online, did a little research, went to the website, stuff like that.”

  • WIWR

    Thank you Dean Erwin Chemerinsky.

    I find it ironic that the host of this forum Scott Shafer ( an experienced representative of the media) knew so little about free speech, or maybe it’s just a little of liberal bias showing.

    Repeatedly, Mr. Shafer probed for examples where free speech could be curbed or restricted, only to be educated by the guest that the best counter to hate speech is more free speech.

    Hopefully when the next time Mr. Shafer cover events where hate speech occurs, he defends their right to be heard. But I sincerely doubt that would happen. If he did,he would be a victim of hate emails and tweets from the left.

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