Law Schools

This Story About Dershowitz Getting 'Blocked' At Berkeley Seems Way Overblown

Alan Dershowitz complained of censorship, but he really ran afoul of the ongoing effort to hack free speech.

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Yesterday, The Recorder posted an article with the provocative title, “After UC Berkeley Blocks Dershowitz Speech, Its Law School Steps In.” That certainly sounds alarming! It touches on all the narrative high points: undergraduate institution trying to “suppress” speech and a law school, as the bastion of proper constitutional respect, shining the light of freedom that those crazy Antifa types have lost. Unfortunately, that’s not how this really played out, but “Law School Invites Dershowitz To Speak After Time, Place, Manner Mix Up” doesn’t really bring in the eyeballs.

The crux of the story is that Professor Alan Dershowitz received an invitation from a number of Jewish student organizations to give a speech at Berkeley later this month. Unfortunately, Berkeley requires all events expected to draw 200 or more people to give eight weeks notice. That certainly sounds like a straightforward time, place, manner restriction. It strikes me as a dumb time, place, manner restriction, but, as The Recorder points out, the school is hemorrhaging money in security making accommodations for alt-right con artists who’ve descended on the school trying to stir up conflict. It’s no accident that after a clash with protesters resulted in some hefty property damage, every right-wing enfant terrible started booking events at Berkeley. They know they have the administration right where they want them now. They don’t even need to succeed in provoking a confrontation — the goal is to frighten a school into cracking down on students or go broke trying to balance everyone’s speech interests. Pretty nifty trick.

And Dershowitz has nothing in common with those yahoos, but he’s suffering from their shenanigans. While they want to spout off unchallenged from a lectern until someone in the audience — on either side of the issue — starts a rumble, Dershowitz is a law professor with a deep interest in dialogue. He’s not a shrinking violet like some people. He’s willing to engage in a back-and-forth. He’s willing to field the tough questions. Basically, he’s exactly what campuses need — someone sharing controversial thoughts and willing to respect the rights of dissenters to listen to him, engage him, or ignore him. Yet here he is on the wrong end of this rule.

So as you might have guessed, the Dershowitz event failed to meet the eight-week threshold for its October 10 scheduled date. This would be a good time to rip the propriety of an eight-week window, asking whether or not this restriction, even in the face of the challenges recently foisted upon the school, is narrowly tailored to meet the school’s security concerns. Perhaps a critic could go further and say that while provocateurs like Milo — who bilked Berkeley out of $800,000 for an event he canceled have a right to speak, their tactics are degrading discourse on campus by pressuring universities to impose draconian permitting requirements.

Instead, Dershowitz suggested Berkeley censored him:

“Berkeley is a public university—taxpayers’ money,” he said on “Fox & Friends.” “They are bound by the First Amendment. They can’t impose one rule on pro-Israel speakers and another one and anti-Israel speakers, one rule for conservatives and one rule for liberals.”

Except… they don’t. There isn’t a separate rule for pro-Israel speakers and anti-Israel speakers. Or, at least, if there is it’s a function of the fact that the pro-Israel event is expected to draw over 200 people and the corresponding hypothetical event would not. But that’s still content neutral. Dershowitz claims that Berkeley would never ask an anti-Israel actor to wait eight weeks to speak — and that would be wrong — but there’s absolutely no evidence to suggest that. He claims that “departments” get around the rule by inviting speakers directly and they only ever invite anti-Israel speakers, which sounds far-fetched (not that departments invite pro-Palestinian speakers, which I’m sure they do, but that they invite these speakers for 200+ attendee events that would otherwise trigger this rule).

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Look, I don’t want to get into a whole other thing with Professor Dershowitz. This was a televised cease and desist letter, so he was right to stake out the most extreme position. But while calling this censorship makes for a good negotiation starting point for his case, for the rest of us, the minutiae of balancing security and speech with reasonable rules that don’t impermissibly infringe that freedom is the much more important fight going forward, because the pressure on schools isn’t letting up.

Thankfully, Dean Chemerinsky has stepped in to provide accommodations for the Dershowitz event because, as head of the law school, he can get around this provision. Ironically, the very loophole that Dershowitz decried as unconstitutional on Fox & Friends. But, again, it was a televised cease and desist letter.

Still, Dershowitz’s original point rings true: if these restrictions can be arbitrarily circumvented by the whim of a department that’s a real problem with the whole regulatory regime. This story probably shouldn’t end with the fact that Dean Chemerinsky’s personal and professional relationship with Dershowitz provided him a forum that others wouldn’t get in the same situation.

Berkeley remains beset by a bundle of speech restrictions that deserve a closer inspection. The forces looking to undermine traditional notions of free speech — you know, the ones Berkeley is actually famous for — are more than eager to file their forms in triplicate eight-weeks in advance to crowd out everyone else. They love these rules because it’s about gumming up the machinery of free speech until only the most determined get a forum.

There’s definitely something troubling here. The task for the rest of us is getting into those unpleasant nuances beyond simple censorship, because the people trying to curtail speech are laser-focused on exploiting the idea that criticism is a form of censorship. Adopting a Manichean view of speech only plays into that.

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After UC Berkeley Blocks Dershowitz Speech, Its Law School Steps In [The Recorder]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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