The First Amendment does not apply in a private person’s home. That didn’t stop law students from UC Berkeley Law who had been invited to Dean Erwin Chemerinsky’s house for a private dinner from commandeering the event to air their grievances about the war in Gaza. The law student captured in the video demands that Dean Chemerinsky and his wife divest from Israel.
Dean Chemerinsky does not make decisions about where the University of California invests its money. If the student, and her peers at the dinner, were actually interested in changing policy they could have petitioned the UC Regents and the CaliforniaLegislature, both of whom have opposed the Boycott, Divestment, and Sanctions movement against Israel. The behavior of the student reflects the fact that she wasn’t interested in changing policy. She wanted to target a powerful and influential Jew in his home and thereby send a message to all other Jews that they were not safe, even in their own homes.
The confrontation in Chemerinsky’s home is not an isolated incident. Protestors have been banging on pots and drums, blaring sirens, and chanting on loud speakers in front of Lou Correa’s house in Santa Ana, California for months. These agitators repeat chants charging the Congressman with genocide for his refusal to sign a House bill calling for a ceasefire.
Lou Correa’s failure to sign legislation on a ceasefire is not why the war in the Middle East continues, nor is it what the protests in front of his house are really about. Hamas has repeatedly rejected all offers of a ceasefire. As recently as April 10th, Hamas rejected the latest ceasefire proposal. The protestors continue to besiege Lou Correa because he has taken money from AIPAC. The agitators want to both punish him for that and dissuade other members of Congress from accepting money from the pro-Israeli political action committee.
The early morning and late night protestors have so disturbed the neighborhood where Congressman Correa lives, that the Santa Ana City Council attempted to expand its current ordinance limiting the picketing of private homes. The city attorney followed U.S. Supreme Court precedent so that the proposed regulations would be a constitutional “time, place, and manner” restriction permissible under the First Amendment. Yet, the Santa Ana City Council bowed to the pressure of the angry mob and rejected the proposal restricting protests within 300 feet of a targeted residence. The city council claimed they just couldn’t limit free speech.
In Irvine, California, two city council members have received death threats online and been routinely harassed by pro Hamas crowds. Public speakers accuse the council members of supporting ethnic cleansing. Despite months of harassment, these elected officials have insisted on doing the jobs to which they were elected and have complied with a local ordinance which prohibits the city council from acting on non-municipal affairs. They have refused to pass a ceasefire resolution. Their safety has been compromised to such an extent that the local police department conducts routine monitoring around their homes.
Public comments in Irvine have lasted for hours at each city council meeting for the last five months. These comments include statements such as “Hitler didn’t finish the job,” “Women who were raped on October 7th were happy to be with “real” men,” and “Israel has no right to defend itself.” While offensive speech may be legally protected under the First amendment, city council meetings are actual business meetings for city affairs. As such, speech in local government meetings is routinely limited in a content neutral manner to ensure the orderly conduct of business.
The city of Irvine has decorum codes which prohibit the public from making disruptive, slanderous and offensive remarks in order to maintain order and the smooth functioning of the government. Yet, the mayor of Irvine, vice mayor of Irvine, and city attorney of Irvine refuses to enforce these city and state rules and instead choose to hide behind a false reading of the First Amendment.
Hamas sympathizers present supporters with online handbooks on how to “escalate tactics” with activities such as birddogging.Birddogging is defined in this manual as, “a strategy to repeatedly seek out elected officials, pin them down…and follow up with a public video.” The manual encourages people to do “noisy wake up calls” and consistently shame people as “war criminals.” It is very unlikely such tactics will change elected officials’ opinions about Gaza, but they do serve to intimidate and frighten both the officials and the public at large.
Protest is a critical component of advocacy. However, many of the tactics the anti-Israel “protestors” utilize are not protected speech. These agitators are given clear instructions on how to implement mass civil disobedience. Indeed, a campaign planned for April 15th intends to block freeways across America and other hubs of commerce to create “maximum economic impact.”
Free speech in America is a treasured and protected right that we should all ardently support. However, when speech is orchestrated by organizations that are not even present at these meetings and plant words with “activists” with intent to harass and threaten people in ways not protected by the First Amendment, we as a society should be willing to take a closer look. We must see beyond the screaming young person on campus, the non-resident stridently testifying at a City Hall or local school board meeting, and the loud drummer camped outside of an elected official’s house to examine who is actually doing the speaking.
The First Amendment has limits. Our society should enforce those limits to maintain not just civility but the American rule of law.
Julie Marzouk is a lawyer, former law professor, and activist
