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The Journal of Contemporary Legal Issues

Abstract

The general topic to which this piece is devoted concerns how non-governmental entities and individuals may and should respond to the speech of other non-governmental entities and individuals. The emphasis on private, non-governmental actions removes the discussion from the ambit of the First Amendment’s constitutional right of free speech and, indeed, removes the discussion from issues of legality, more generally. Although such normative discussions can result in recommended legal actions, in the first instance at least such discussions are about the morality—as opposed to the legality—of the negative responses by private persons to the speech of others.

The particular focus of this Article is on how private university administrators should respond to controversial and in some cases wrongful speech by their students. A convenient example was afforded in April of 2024 in the much-publicized interruption of a dinner hosted by UC-Berkeley law Dean Erwin Chemerinsky at his home near the Berkeley campus. Dean Chemerinsky and his wife, Professor Catherine Fisk, hosted one of their traditional dinners for graduating Berkeley law students to celebrate the completion of those students’ legal studies at Berkeley. One of those students, Ms. Malek Afaneh, sought to interrupt the dinner at its inception by speaking through a microphone and amplifier about the oppression of Palestinian people by Israel. She was physically prevented from doing so by Professor Fisk and ordered to leave the premises by Dean Chemerinsky. The questions we wish to explore about such cases are four. First, when are students such as Ms. Afaneh wrongful in saying what they are saying in the time and place that they are saying it? Second, when might such students nonetheless have a moral right to so speak—a “right to do wrong” —such that they should be left at liberty to say things they ought not to say? Third, what are the morally appropriate responses available to audience members or other private individuals to such wrongful speech? And fourth, does the appropriateness of responses to wrongful speech differ between private individuals and those who administer private universities?

This paper is part of a Symposium on “Free Speech Beyond The Constitution” published in 27 Journal of Contemporary Legal Issues (2025).

Volume

27

Issue

1

Start Page

71

Faculty Editor

Maimon Schwarzschild & Larry Alexander

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