The Volokh Conspiracy

Re the controversy over nine student groups banning speakers who think Israel should exist.

Chemerinsky:

The Jewish Law Students Association can refuse to invite Holocaust deniers. The Black Law Students Association can refuse to invite white supremacists. I may not like the choices they make about what viewpoints they invite or not invite, but that is their First Amendment right.

What is not allowed is excluding a speaker based on religion or race or sex or sexual orientation. And that has not – and I am confident will not happen at Berkeley Law. To be clear, the law, and campus policies, distinguish between word and deed, expression and action. To date the offending student groups have issued statements, declarations, and intentions. Those are constitutionally protected forms of expression. To date, no student has been excluded, cancelled, disinvited, or interrupted. To date no student has been denied the right or the ability to express themselves, to exercise their freedom of speech. Should that happen—and we are working hard to make sure it does not—that would represent a cross-over from expression to conduct and that would be subject to serious discipline.

Marcus:

if he had reached out, Dean Chemerinsky would stop denying that "no speaker has been excluded on account of these or any other views." With due respect to the good dean, this is absurd. Mr. Chemerinsky and his Berkeley Law colleagues now acknowledge that these nine groups' bylaws "impermissibly exclude a large majority of [Berkeley's Law] faculty from participating in the work of these organizations, including [him]." Since he acknowledges that this is impermissible, he should stop permitting it. More to the point, he should stop funding it.

In addition, we all know what happens when campus groups announce "no Zionists"– Jewish students either stop participating or they suppress that part of their Jewish identity to be accepted. Dean Chemerinsky suggests he will act once a Jewish speaker is turned away or a Jewish student is formally excluded. Once the bylaws were formalized that ship sailed. By not acting now, the damage is done.

And if student groups take further discriminatory action by excluding Zionists in the future, there will be no way for Chemerinsky to know that they have done so. It is not as if they will tell the dean that they are doing what he has described as "impermissible."

Comment: Parsed closely, Chemerinsky is arguing that the students have a First Amendment right to ban "Zionist" speakers, but no such right to ban or discriminate against "Zionist" students. I'm not sure that's right for reasons I expressed in a previous post, but let's assume it is. In practice, there would be only one way for a student group to ban "Zionist" speakers (i.e., speakers who believe that Israel should continue to exist), and not in practice discriminate against Jewish speakers--given that, in practice, campus groups' hostility to "Zionists" has fallen entirely on Jews. That would be to ask all speakers, Jewish or not, to sign a pledge that that don't think Israel should exist. Would *that* be ok? Would the campus groups be willing to require such a pledge, including for law firm recruiters who would like to speak with them?

Indeed, I think this should, perhaps must, be the compromise. If the law school determines that it's legal and within school policy for clubs to ban speakers who believe Israel should exist, that policy needs to be transparent, and enforced uniformly. No Dean Chemerinsky or other faculty who support Israel's existence at club events. No law school recruiters who support Israel's existence. No speakers on abortion rights, trans rights, or anything else within the clubs' purview unless they avow that they support Israel's destruction. These groups have made the policy, make them live with it in a way that won't be selectively enforced against Jewish speakers.

As an aside, Dean Chemersinsky is incorrect that expressing discriminatory "intentions" is protected by the First Amendment. It's illegal for an employer to announce that he won't hire a protected group, for a landlord to announce that he won't rent to a protected group, and so on, regardless of whether they follow through if they get applicants from those groups.

As a general matter, lawyers tend to be conservative. Not in the sense that they are right-of-center. Indeed, lawyers skew left. Rather, attorneys favor stability: support ideas they know, approved by people they trust, that are communicated through established channels. That preference for the status quo can be altered in one of two ways. The first approach is familiar: a slow, iterative process, in which marginally-revised ideas percolate by established elites, who then use traditional mediums to reflect the fact that the idea has gained mainstream support. After the idea reverberates around the echo chamber long enough, the idea is now part of the new normal. By contrast, the second approach bypasses all of those traditional trappings: a person with the requisite clout proposes a radical new concept, which shocks the elites into fierce oppositions, thus legitimating the idea, and bringing the idea into the mainstream. In politics, this process is known as shifting the Overton window. In law, we can call it shifting the Hoverton window.

Of course, I write about Judge James Ho. Two weeks ago, Judge Ho delivered a short speech at the Kentucky Chapters Conference of the Federalist Society. His proposal shocked the mainstream conscience: going forward, he would no longer hire graduates of Yale Law School. Ho's remarks, which have now been published by the Texas Review of Law & Politics, anticipated and addressed most of the criticisms he would ultimately receive. Indeed, it is apparent that Judge Ho recognized that he would be attacked for his views. But such withering criticism is a feature, not a bug to change the discourse.

In the abstract, if a person has an awful idea, the most effective strategy is to ignore the apostasy, and marginalize the speaker. (Several academics openly employ this strategy against me.) In time, the disruption will die down, and the status quo will resume. But disruptive ideas are hard to ignore. First, you have the social media hot takes. Blue check marks looooveeee to dunk on some crazy new idea that conflicts with their priors. Anyone with thumbs and a spool of thread emoji can become a self-proclaimed expert on anything. Second, you have the more sober responses that take the idea seriously, but ultimately reject it out of hand. These pieces invariably find some common ground, and in the process, strengthen the proposal. And third, you have the peers, who call their colleague out for heresy. Along the way, the mainstream press writes about the firestorm. Of course, they quote all the critics, but most journalists have some responsibility to seek out sources from other side. This balancing creates what Linda Greenhouse derided as a "false equivalency." And in time, the radical proposition makes its way into the realm of reasonableness.

Now, not every idea can traverse this labyrinth. In my mind, there are three prerequisites to shift the Hoverton window. First, the speaker must have sufficient intellectual gravitas. Specifically, he must be able to generate a novel idea, that departs sufficiently from conventional wisdom, but also anticipates and preempts the most likely response. He must also have a reputation which warrants his ideas being taken seriously. Second, the speaker must have secure tenure-in-office. To challenge the status quo, you need decisional independence. No one can override your position, or worse, tell you to stand down after an uproar emerges. (Tenured academics and Article III judges are among the few people who fit in this category.) Third, the speaker must have courage. You must be willing to publicly articulate your principle, knowing full well that you will be savagely attacked from all corners. (Very few academics and Article III judges fit in this category.) As a frequent target of social media firing squads, I can attest how unpleasant the feeling is. For good reason, I no longer look at Twitter or my mentions.  I am nearly three years Twitter sober. I take some satisfaction knowing that my Twitter detractors are yelling into an empty void.

This background brings me back to Judge Ho's proposal. He announced it on September 29, 2022. Shortly thereafter, a dozen anonymous judges signed onto his program. Judge Lisa Branch (CA11) publicly agreed to join the boycott. Judge Edith Jones (CA5) voiced support for Ho's proposal. Judge Jerry Smith (CA5), who was Ho's boss in a bygone era, criticized Ho, and invited more Yalies to apply for clerkships. Judges McKee (CA3) and Wilkinson (CA4) lined up with Smith. Some judges privately supported Ho. Even more judges privately seethed at Ho.

But the message apparently got through to its intended audience, Dean Gerken. On October 12, Yale Law School issued a statement to alumni at Yale Law School concerning free speech. The timing of this statement seems related to Ho's proposal. Eugene wrote that "calls [for a boycott] might have helped prompt this message." Brian Leiter was more direct: "This seems a victory for Judge Ho." It is impossible to know what impact Ho's speech had on Yale Law School. But his willingness to be the first to speak, and change the conversation, likely nudged Gerken to speak out.

The Hoverton window has been shifted here. It was not the first time. (See pp. 374-376 of my article Judicial Courage.) And it will not be the last time.

Two 2019 alumni of Berkeley Law School, Nir Maoz and Olivia Wittels, are concerned that the recent attention given to the "no speakers who support Israel's existence" rule adopted by nine student groups at the law school is giving people a false impression of the school. Jewish and Zionist students at Berkeley Law, they write, are thriving. They describe their own experiences in support of that claim.

I don't doubt they are right about the thriving part, but after I finished the article I wound up more concerned about the environment at Berkeley Law than I was before I read it. Sometimes, incidents like the current speaker boycott are short-term phenomena, spurred by an especially charismatic student activist who temporarily rallies other groups to his side. But Maoz and Wittel's article suggests that the problem is much more deep-rooted and longstanding. They write: "We won't deny that in our three years at Berkeley Law, we experienced a number of antisemitic incidents that contributed to what was, at times, a hostile climate for many Jewish students."

They don't describe what these incidents were, but I find it striking that in a defense of their alma mater, with perhaps the most "progressive" student body of any law school, they describe antisemitism sufficiently serious to at times create a hostile environment. Good for them for not letting it interfere with their activism, nor for falling into a victim mentality. But something seems to be seriously amiss at Berkeley Law.