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.