Antisemitism, Free Speech, or Anti-Zionism?
A student group’s new bylaw provokes a First Amendment dispute
Controversy erupted in August 2022 at the University of California (UC), Berkeley School of Law after Law Students for Justice in Palestine (LSJP), a graduate student group that describes itself as a “home for education, discussion, and activism promoting the rights of the Palestinian people,” adopted a new bylaw. The bylaw states that the group “will not invite speakers that have expressed and continue to hold views or host/sponsor/promote events in support of Zionism, the apartheid state of Israel, and the occupation of Palestine.”
According to LSJP, the bylaw is a part of the international Boycott, Divestment, and Sanctions (BDS) movement that supports Palestinians by trying to defund organizations “complicit in the occupation of Palestine.” The bylaw, however, goes beyond similar BDS boycotts on other campuses. Rather than simply banning Zionists from talking about the conflict between Israelis and Palestinians, it bars speakers based on their beliefs about Zionism, regardless of the topic an individual speaker would address. At least eight other graduate student groups at Berkeley adopted a similar bylaw.
A flurry of criticism of the bylaw and its potential effect on campus culture followed, igniting debate about what constitutes antisemitism and what boundaries should be placed on free speech.
“Let me be clear, in our university community we should not be excluding students in any manner because they believe in the right of Israel to exist,” UC Board of Regents Chair Richard Leib said in a board meeting in late August 2022, a week after the bylaw was introduced. “This exclusion is absolutely inconsistent with the central mission of the University of California.”
Berkeley Dean of Law Erwin Chemerinsky has said that while student groups have a First Amendment right to choose speakers based on their viewpoints, the bylaw is offensive and inconsistent with Berkeley’s values.
Berkeley Law’s Jewish Students Association said in a statement, “In considering which organizations to join, students should not be forced to choose between identifying as either ‘pro-Palestine’ and thereby ‘anti-Israel,’ or ‘pro-Israel’ and thereby ‘anti-Palestine.’ This dichotomy distorts the complexity of the issue. Students can advocate for Palestinians and criticize Israeli policies without denying Israel the right to exist or attacking the identity of other students.”
The statement also noted that the bylaw may have an “antisemitic impact” on the Berkeley Law community. A group of law professors also signed a letter objecting to the bylaw for being “antithetical to free speech and our community values.” In addition, several Jewish organizations around the country have criticized the bylaw, and Democratic Congressmembers Brad Sherman of California and Josh Gottheimer of New Jersey both denounced it.
Supporters of the bylaw, however, have said that it targets the Israeli government’s treatment of Palestinians, not the Jewish people. In an October 2022 opinion piece in the Chronicle of Higher Education, University of Toronto law professor Mohammad Fadel wrote that “student organizations’ freedom of speech would be radically curtailed if they were compelled to listen to speakers whose views were repugnant to that of their organization.” He added that “the First Amendment certainly gives them the right not to invite as a speaker anyone who believes that Israel’s treatment of Palestinians is morally and politically acceptable.”
At the end of September 2022, Kenneth L. Marcus, US Education Department civil rights chief during the Trump administration, wrote an opinion piece for the Jewish Journal titled “Berkeley Develops Jewish-Free Zones.” “The exclusionary bylaws operate like racially restrictive covenants precluding minority participation into perpetuity,” he wrote.
After the article appeared, the conservative media watchdog group Accuracy in Media sent trucks displaying billboards to campus. “If you want a Jewish Free Berkeley, raise your right hand,” said one billboard with a picture of Adolf Hitler. Another billboard featured the banner “Berkeley Law’s Antisemitic Class of 2023” and displayed the names of members of student groups that had adopted the bylaw.
In November 2022, Miami attorney Gabriel Groisman and Arsen Ostrovsky, the CEO of the International Legal Forum, a Tel Aviv–based organization, filed a complaint with the US Education Department stating that the bylaw violates Title VI of the federal Civil Rights Act. Title VI prohibits discrimination on the basis of race, color, or national origin at programs receiving federal assistance. The complaint called for an investigation into Berkeley Law for its “profound and deep-seated antisemitic discrimination” against Jewish people and asked the Education Department’s Office for Civil Rights to direct Berkeley to invalidate the bylaw.
In December 2022, the Office for Civil Rights opened an investigation into whether Berkeley responded appropriately to the situation. This does not, however, imply that the office has determined that the case has merit. “I believe that our policy is in complete compliance with Title VI and the First Amendment,” Chemerinsky says. “I am confident that the Department of Education review policy will come to that conclusion.”
The following interview with Chemerinsky (conducted before the filing of the legal complaint) and the accompanying perspectives by Dylan Saba, an attorney with Palestine Legal, and Ethan Katz, associate professor of history and cofounder of the Antisemitism Education Initiative at Berkeley, offer different views on the situation.
A Conversation with Dean Erwin Chemerinsky
You’ve called the bylaw offensive—how do you plan to further address the situation? I am looking for ways to heal the community and lessen tensions. I sent a Thanksgiving holiday message to everyone at the law school saying that I hope we will focus much more on the things that unite us, rather than the things that divide us. I also plan to create educational programs on topics such as the plight of the Palestinians, Israeli security, the history of antisemitism, and the history of anti-Muslim sentiments. We’re an educational institution—we should look for ways to educate people—that will, hopefully, move us forward.
How do you balance the student groups’ right to make their own bylaws with Berkeley’s commitment to nondiscrimination? It’s crucial to recognize that this is not about the right to have the bylaw. It’s about the right of student groups to choose speakers based upon viewpoints. The Republican club can choose to invite only conservative speakers. The Jewish law student group can choose not to invite Holocaust deniers. The Law Students of African Descent student group can refuse to invite white supremacists. So long as the choice is about the viewpoint of the speaker, that’s safeguarded by the First Amendment. However, student groups do not have the right to exclude a speaker based on race, sex, religion, or sexual orientation. We also have a clear rule that all student groups at all student events must be open to all students.
What do you find offensive about the bylaw? The bylaw says that the groups won’t invite speakers with a certain viewpoint, regardless of what the program is about. Under the bylaw, they won’t invite a speaker who is pro-Zionist and who supports the existence of Israel, even if the talk has nothing to do with that viewpoint. The reality is that if the bylaw was ever enforced, I think there would be an exclusion of many Jews.
Are you currently allowed to speak at the nine student-affiliate groups that have banned Zionist speakers? Some of this is a matter of definitions. I am not sure what they mean by Zionism or the support of the apartheid state of Israel. If Zionism means supporting the existence of a Jewish nation, then I am a Zionist. I support the existence of Israel but do not support many of its policies. So, I assume that I would not be invited to speak at these groups’ events if they followed their bylaw.
The lines between antisemitism, anti-Zionism, and criticism of Israel can be blurry. What label would you apply to the groups’ actions, specifically the new bylaw? The bylaw speaks for itself. By definition, they are anti-Zionist because they won’t invite speakers who support Zionism. Many perceive the bylaws as antisemitic.
You were careful to use the word “perceive.” What kind of distinctions are you drawing between perception and reality? Supporters of LSJP have vehemently denied that the bylaw is antisemitic. Many Jewish groups, however, describe the bylaw as antisemitic. I am content to say that I am not going to adjudicate the meaning of antisemitism. Personally, I find the bylaw unequivocally offensive.
In general, what’s the relationship between criticisms of Israel and antisemitism? I find it possible to draw a distinction between the two. I strongly support the existence of Israel, but I am very critical of its policies regarding the treatment of Palestinians and the West Bank. I also strongly support the existence of the United States, but I’ve never had any problem criticizing the United States. I don’t believe criticizing Israel’s policies is antisemitic any more than I believe that criticizing the policies of the United States is anti-American. On the other hand, I believe that statements that are critical of the Jewish people, such as Kanye West’s comments [claiming that the Jewish people control the media and are excessively greedy and money-oriented], are clearly antisemitic.
How do you respond to charges that there are “Jew-free zones” at Berkeley? It’s nonsense. There are no Jew-free zones at UC Berkeley. Every student group must be open to all students. Indeed, there’s a student group whose members call themselves anti-Zionist Jews who agree with the bylaw. There are no areas of the law school where Jews are excluded, formally or informally. It’s an inflammatory and a completely wrong label.
It’s been a tense semester among some student groups. It’s been made worse by the horrible actions of some outside groups, like a conservative group that had trucks going around campus with incendiary signs about the situation.
Are those signs protected by the right to free speech? They have a First Amendment right to do this, but some of what they did went beyond the pale of free speech, such as inaccurately naming uninvolved students. Here’s the simple answer to the question: it’s free speech, but just because you have the right to say something, doesn’t mean you should say it. The group has the right to drive their trucks with those signs, but they shouldn’t.
The next set of questions go beyond the specific situation at Berkeley. Why do you think there has been a dramatic increase in antisemitic episodes on college and university campuses in the United States? There’s been a significant rise in antisemitism in the United States, so it’s not surprising that we are seeing it on college campuses as well. The Anti-Defamation League has documented a 34 percent increase in antisemitic episodes in the United States in the past year. Any explanation is complicated.
What can colleges and universities do to combat antisemitism on campus? We must strongly denounce antisemitism, and we must educate students about it. It’s important to provide anti-bias training, including training about antisemitism.
What’s driving the overall trend to cancel or ban speakers at colleges and universities? This is not a new impulse, but there are some new aspects to it. This is the first generation that grew up with a strong notion that bullying is wrong. These students want to protect each other and exclude speakers they view as hateful. Their image of free speech is the vitriol of social media platforms like Twitter and Yik Yak rather than of the anti-Vietnam or the civil rights protests of the 1960s.
Campuses should be a place where all ideas and all viewpoints can be expressed. I have repeatedly communicated within my law school that disrupting speakers is not allowed and will be punished. If you don’t like the speaker, bring in your own speaker or hold a protest that is not disruptive. But you can’t cancel a speaker.
What are the implications of banning speakers for higher education? Education inherently requires exposure to lots of ideas—that includes hearing from speakers with different viewpoints. You lose that when you ban speakers. The purpose of education is not to make students safe from ideas or to protect them from viewpoints they find offensive.
What are the boundaries of free speech on campus? Speech is not absolute on campus or elsewhere. There is speech that is not protected by the First Amendment, including incitement, threats, and speech that rises to the level of harassment. And, of course, even when speech is protected, there can still be limits.
Will situations of this kind affect the choices of undergraduates who are considering applying to law school? If so, how? The reality is that what happened at Berkeley Law can happen at any law school. In a sense, these events reflect the fact that we have a diverse and passionate student body. Those are strengths, but they can also cause challenges. My hope is that situations of this sort would not cause undergraduates to change their minds—either about going to law school or where they will apply.
Illustrations by Brian Cairns
By Ethan Katz
Passage of the bylaw had a swift and jarring effect on most Jewish law students at the University of California, Berkeley. They were shocked, distressed, and confused about the bylaw’s implications.
Students were further troubled that law student groups with no clear connection to the conflict in the Middle East—such as Women of Berkeley Law and the Queer Caucus—also passed the bylaw. They feared they were no longer welcome in these groups and felt that they must either conceal their attachment to Israel or quietly leave the clubs.
The reaction of the Jewish law students was in part a response to the bylaw’s sweeping language, which excludes any speaker who expresses support for Zionism. Most contemporary Jews define Zionism as a movement for national self-determination for the Jewish people in a portion of their historic homeland, now actualized by the modern state of Israel. Under that definition, these bylaws exclude anyone who believes in collective Jewish rights to some part of Israel/Palestine—according to current polls, that encompasses most American Jews and many non-Jews. Therefore, regardless of legalistic arguments, the bylaw is antithetical to the spirit of free speech.
After the situation gained international attention and outside players became involved, members of the law student groups who adopted the bylaw were harassed and threatened, and individuals’ personal information was revealed online. These acts made the situation worse. In turn, some pro-Palestinian students and faculty then elected to racialize the conflict, with language depicting this as a case of “privileged White” Jewish students claiming students of color had excluded them.
Meanwhile, the enormous publicity around the situation generated an atmosphere of unease in which many undergraduate Jewish students became deeply concerned and even frightened. They perceived a rising threat of exclusion and physical vulnerability.
For me, this episode has exposed the necessity of creating constructive conversations about Zionism, Israel/Palestine, and contemporary antisemitism on campus. It’s been a double punch; the situation has hurt all our students, Jewish and non-Jewish. Now we must focus on what we educators do best—education—to punch back.
Ethan Katz is the chair of the Chancellor’s Advisory Committee on Jewish Life and Campus Climate at the University of California, Berkeley.
By Dylan Saba
The fight for justice in Palestine is far from over. Despite decades of violent repression, Palestinians have continued to assert their national identity and sovereign claims through protests across historic Palestine and by advancing the Boycott, Divestment, and Sanctions (BDS) movement internationally. Although meaningful change for the Palestinian people may not come in the immediate future, student organizers in groups such as Law Students for Justice in Palestine (LSJP) have good reason to believe it will come in their lifetimes.
LSJP and other graduate student groups at Berkeley Law passed a BDS bylaw in August 2022 that bans Zionist speakers. This sparked outcry from those who support—in theory or in practice—the status quo of ongoing Israeli aggressions against Palestinians. That many of these protests and condemnations came from pro-Israel groups outside of Berkeley demonstrates how invested much of the American establishment is in the current state of affairs.
Even when a university’s administration upholds the First Amendment rights of a Palestinian student group to host speakers who agree with their views, as happened in this case, that administration still expresses mournful concern that the group’s choice is antisemitic or anti-Zionist.
Berkeley’s administration has not criticized other student groups who also have policies of only inviting speakers with whom they agree. For instance, Hillel, a large Jewish student group with eight hundred chapters around the United States, prohibits its members from hosting speakers who “delegitimize” Israel, such as those who support BDS or the unconditional right for Palestinian refugees to return to their homes.
The threat the bylaw poses is not to Jewish students but to the ongoing Israeli military occupation of Palestinian land. By stating that Zionism is not welcome in their spaces, the Berkeley graduate student groups have simply affirmed the fact that the Palestinian people’s fight for liberation is not over. That this causes discomfort to some Jewish students and organizations is neither surprising nor particularly concerning: this is precisely how history is made.
Dylan Saba is a recent graduate of the University of California, Berkeley School of Law and a lawyer for Palestine Legal.