A couple of people, both of whom I respect greatly, asked me for a First Amendment analysis of the students’ attempt to talk about the Israeli-Palestinian conflict at the class party at Berkeley Dean Erwin Chemerinsky’s house. Happy to oblige!
[1.] Some people argued that the party was a function of the public law school, and therefore not just a private event. I’m not sure if that’s right, but I don’t think it matters.
Even if Berkeley Law School threw a party for its students in a law school classroom, students still couldn’t try to hijack it for their own political orations. Rather, much government property is a “non-public forum,” a place where some members of the public are invited, but which is “…not by tradition or designation a forum for public communication” (Alliance of Minnesota Voters v. Manx (2018), citing an important case from 1983).
In a non-public forum, the government acting as the owner can impose restrictions as long as they are “reasonable and viewpoint-neutral.” (Restrictions do not need to be content-neutral, however, as long as they are neutral from the point of view; and I imagine Dean Chemerinsky wouldn’t have tolerated this kind of political talk from anyone at their dinner.)
This is because the government has the “power to preserve property under its control for the use for which it is lawfully intended.” If the venue is a room open to students to listen to a lecture, or if it is open for dinner, lunch, or a party, people do not have a First Amendment right to carry microphones and take over the event for their own political diatribes.
In fact, I think the same would be true for regular university cafeterias. People are free to go there and talk politics with their friends over lunch or wear T-shirts with political slogans. But they don’t have a First Amendment right to stand up and interfere with their classmates’ lunches by taking away their microphones and giving a speech.
[2.] It is now possible that people who host events, even public law school events, in their homes have extra power to control what is said and done in their homes, beyond what is described above. I don’t know of specific cases, perhaps because there are very few people who try to transform a ceremony at someone’s home (even organized by a public body) into an occasion for their own political demonstration.
In any case, though, I wouldn’t rely on this potential logic, because I think the same would also apply to a dinner that is clearly government-owned. The government generally cannot prevent you from speaking on private property (real or virtual) when you have the owner’s permission. It generally can’t stop you from speaking in traditional government-owned public forums, such as parks and sidewalks. Once it opens a designated or restricted public forum for speech (or certain types of speech), it must generally tolerate that speech. (Outdoor open spaces at universities may qualify as such “traditional public forums” or “designated public forums” or “limited public forums.”)
But when government buildings aren’t open for public discourse, people don’t have a First Amendment to hold speeches there. And this also applies to private homes, even when public law school parties are hosted there (regardless of whether or not private homeowners have extra authority in such situations).