Berkeley Free Speech Expert: Dangers Off Campus

, Malcolm A. Kline, Leave a comment

Despite the inability of Berkeley officials to safely host events featuring conservative speakers, the free speech expert at the law school there sees the greatest dangers to freedom of expression beyond Berkeley’s gates.

Indeed, said sage, Erwin Chemerinsky, Dean of the U.C. Berkeley School of Law, shared these concerns recently at a meeting of the American Association of University Professors (AAUP). Hank Reichman recorded Chemerinsky’s observations on the academe blog maintained by the AAUP.

“Chemerinsky then discussed three decisions from the high court’s last term, all of which, he suggested, may ‘weaponize the First Amendment’ in the manner highlighted by Justice Elena Kagan in her powerful dissent in the case of Janus v. AFSCME Council 31,” Reichman wrote. The other cases fell well outside the academic realm.

“The second decision highlighted by Chemerinsky was National Institute of Family Rights Advocates v. Becerra,” Reichman related. “ In this case, the Supreme Court, in a 5-4 decision written by Justice Clarence Thomas, ruled that the State of California may not require religiously oriented ‘crisis pregnancy centers’ to supply women with information about how to end their pregnancies.”

“’Governments must not be allowed to force persons to express a message contrary to their deepest convictions,’ Thomas wrote. ‘Freedom of speech secures freedom of thought and belief. This law imperils those liberties.’ He added, ‘No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion.’”

“As Chemerinsky pointed out, although the case was about abortion, it could imperil all sorts of laws that mandate public disclosure of information — warning labels on medicines, food, and alcoholic beverages, for example. ‘Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech,’ Justice Stephen Breyer wrote in dissent.”

“The third decision was Masterpiece Cakeshop v. Colorado Civil Rights Commission, the gay wedding cake case. Although decided 7-2 on narrow grounds, Chemerinsky argued that the decision nonetheless could threaten a broad range of civil rights laws. If the ruling did not go so far as to confirm that ‘bakers can be choosers,’ to borrow a Chermerinsky joke from a previous talk [AAUP meetings must be terribly droll affairs], it did leave open the possibility that a future court could rule that all sorts of commercial activities involve free expression and hence are protected from anti-discrimination statutes by the First Amendment.”

We should note that on Rate My, Chemerinsky got rave reviews at Duke, the University of Southern California and the University of California at Berkeley. Chemerinsky himself does not give rave reviews to original intent.

While the late Justice Antonin Scalia was still on the bench, Chemerinsky wrote an op-ed to complain about this legal icon. “Justice Antonin Scalia is setting a terrible example for young lawyers,” Chemerinsky wrote in The Los Angeles Times. “Ignore, for now, his jurisprudence, his famously strict originalism; it’s his tone that’s the problem.”