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Hello, Reddit! Mike from UC Berkeley's public affairs office here. Since free speech on college campuses is a hot topic - especially at Berkeley - I asked the dean of our law school, Erwin Chemerinsky, to sit down for an AMA to discuss it and other subjects.
Erwin is an extremely humble person, but I need to quickly brag for him before we begin: In addition to being our law dean, Erwin is one of the country's foremost scholars of constitutional law, and earlier this year was named the most influential person in legal education in the United States by National Jurist magazine. Before coming to Berkeley, he helped establish UC Irvine's law school, and before that taught at Duke University and USC. He has argued cases before the U.S. Supreme Court and the U.S. Court of Appeals, has written hundreds of law review articles, and is the author of ten books - including “Free Speech on Campus,” his latest. You can learn more about him here.
I'm just here to facilitate; Erwin will be responding to all questions himself. No need to stick solely to the topic of free speech, either - he's willing to discuss all manner of legal subjects. He'll begin answering questions at about 5:30 PM pacific time.
EDIT: Mike here again. I'm afraid that Erwin needed to sign off for the evening, but he asked me to pass along the following: "It was a pleasure to participate in this, thank you for all the very good and well-informed questions - I answered as many as I could and I'm sorry I could not do more. I'd love to do this again." We'll try to make that happen!
What can students like myself do when even professors and faculty at universities are calling for legal limits on free speech? For instance, at the Berkeley panel discussion on free speech at which you spoke in September, Professor john powell openly advocated for restricting speech that may be psychologically harmful, to the resounding endorsement of both students and faculty in the audience.
If the onus to firmly challenge this viewpoint falls on administrators, professors, and deans like yourself, do you feel that your support for free speech on campus is sufficient without naming and condemning exactly those people who want to restrict it, like Professor powell?
I think it is so important to separate a discussion of what the law currently is from a conversation about what the law should be. Hateful speech IS protected by the First Amendment. But we certainly can and should debate whether this is desirable. john powell and I agree as to the current law, but disagree on what the law should be.
What are your thoughts on the weird discrepancy in search and seizure rules where police can't compel a person to open a phone with their password versus compelling them to open it with their fingerprint or other biometrics? Is this something that will change?
I think that this is an area where the law has not caught up with the technology. In Riley, the Supreme Court held that police cannot search a cell phone without a warrant (unless there are emergency circumstances). I think this must mean that police cannot force people to give a password or a fingerprint to open the cell phone. I believe the law will catch up to technology here.
If you had a magic wand, what single amendment would you add or edit to the U.S. Constitution? Relatedly, what one U.S. Supreme Court case would you overrule?
I would overrule San Antonio Board of Education v. Rodriguez (1973) and hold that education is a fundamental right and that discrimination against the poor should receive heightened scrutiny.
I would add an explicit right of privacy and autonomy to the Constitution.
Would you be flattered or horrified if a practicing attorney named his dog Erwin?
How do you feel about first amendment rights being extended to associations in Citizens United (assuming I don't completely misunderstand the decision)? Does this mean other individual liberties will likely be extended to groups?
I do not believe that corporations should have the same rights as individuals. For example, in areas of conscience -- like religious freedom -- corporations cannot have a conscience. Their owners, of course, can; but the law draws a clear distinction between a corporation and its owners.
What do you think of SCOTUS justices giving talks in buildings owned by the President who appointed them or making appearances at political events?
I believe that justices and judges should avoid the appearance of impropriety. After all, that is a core requirement under the Judicial Code of Ethics. Also, judges are prohibited from appearing at political events.
However, remember the Judicial Code of Ethics does NOT apply to Supreme Court justices. I think that should be changed.
Hi Dean Chemerinsky. (Thanks for that Conlaw supplement. It saved my ass in law school.)
I think a lot of these cases involve warrants. Is it as constitutionally problematic or an issue of law catching up with the times if law enforcement have a warrant to compel the password?
There never is a problem with a search if there is a valid warrant -- whether it is a cellphone or a car or a person's house.
I read your recent article in the Daily Journal about why the Executive's pardon power cannot be so extensive as to permit an executive to pardon someone for being in contempt of a federal court order. Setting aside the merits for a moment, how likely do you think it is that Trump's pardon of Arpaio would be nullified or otherwise struck down? I worry not only about standing, but also about judicial interpretation of a subject that has such an undeveloped jurisprudence. I am also deeply concerned that Trump will increasingly use his pardon power for self-serving purposes (e.g., pardoning family members or other associates for campaign-related crimes).
What hope do you have that Trump's ham-fisted use of pardons will be curtailed by our courts?
Thanks for all that you do—and thanks also for helping me pass the MPRE (I literally only watched your video 2 or 3 times before taking it and passed!).
Attorney in CA
Thanks for your kind words about my lecture. I am glad that was helpful.
I think that there is a difference between a presidential pardon for violating a federal statute as opposed to a presidential pardon for violating a court order. The latter interferes with and undermines the functioning of another branch of government. I also think that there is a difference in terms of the language and intent of Article II of the Constitution (concerning the pardon power.)
I have no prediction as to what Judge Bolton will do, but I thought it important that the issue be raised.
Is hate speech considered free speech?
The Supreme Court repeatedly has made it clear that hate speech generally is speech protected by the Constitution.
What do you think of the "rational basis with bite" standard of review - it seems to cause a lot of uncertainty, why doesn't the Court explicitly state which level of scrutiny it is employing?
"Rational basis with bite" is a phrase created by law professors, not the Supreme Court. I think it is descriptive of the fact that there is a huge difference between the traditional deferential rational basis test and that used in cases like Romer v. Evans, Moreno v. U.S. Department of Agriculture, and Cleburne Living Center v. City of Cleburne. I think the underlying reality is that it is not three tiers of scrutiny by really a continuum.
As a textbook author, how do you handle rapid changes in the courts/constitutional law? Just for example, gay marriage or the Civil Rights movement. During the early 1900s and 1950s-1960s there were multiple issues being heard, overturned, heard again, etc. Now in law school we have the ability to learn a brief history and a few select cases regarding race equality. How do you handle that when the changes are happening in real time within a relatively short span?
I hope explained my question, but I am not sure I did. Thank you so much for doing this AMA. I look forward to reading through it.
One of the great joys of teaching constitutional law is that it is constantly changing. One of the frustrations of being an author of a casebook and treatise on constitutional law is that it is constantly changing. To answer your question, I follow the Supreme Court very closely. I follow the cert grants and often read the briefs and transcripts of oral arguments. I watch for the decisions. I prepare a supplement each year and a new edition of the book every four years. I don't know if that answers your question. I guess the bottom line is that I follow the Court closely and try and have the changes in the law reflected in my books.
How do you feel about the comments made by the Attorney General on Georgetown Law's campus last week? Are your feelings on his comments changed at all by the fact that he was making them specifically at a school?
Also, thank you for your Barbri Con Law videos they really helped me during finals prep!
Thanks for the kind words about my Bar/Bri lecture.
I certainly agree with Attorney General Sessions that free speech on campus is crucial and that all views should be expressed at colleges and universities. I do not agree, though, that there is a serious problem with regard to speech not being allowed. There are a number of high profile incidents, but they are the exception. I also think that Attorney General Sessions ignored some of the hard issues that campuses now face concerning freedom of speech.
What are your thoughts on lowering the CA bar exam passing score? Do you think it'll help or hurt the legal market in CA?
California has the second most restrictive "cut score" of any state in the country. I favor lowering it. If the cut score is lowered a reasonable amount, it will mean that people who pass the bar on the second try will make it on the first. That won't really affect the legal market, but it will improve a lot of people's lives.
Hello, Dean Chemerinsky. I’ll echo other lawyers here in thanking you for your excellent Con Law and Federal Jurisdiction supplements—the Federal Jurisdiction supplement got me through Judge Pryor’s class more or less in one piece.
With how overburdened the federal trial courts are right now, do you see Congress pulling back federal jurisdiction by raising the § 1332 solar floor or only allowing diversity jurisdiction where there’s an out-of-state defendant?
Thanks for the kind words.
There have been proposals for years to eliminate or significantly reduce diversity jurisdiction. I don't see any significant movement in this direction. And federal district courts vary greatly as to whether they are overburdened.
Over the last few years, several law schools have closed their doors. Many say we have too many law schools. Some schools are starting to accept the GRE to broaden the applicant base. While a few others have tried to create accelerated two-year JD programs. At almost all schools, the cost of attendance has risen tremendously.
What are your thoughts? Is the current model sustainable? Do we have too many law schools? Would you say it's still "worth it" to go to a law school outside of the top 30 or 50 schools?
Where do you see legal education going in the next 10-20 years? What's the next "big thing" to change/modernize legal education?
Like all the questions, I wish I had so much more time to answer.
As for the number of law schools, I think there is no magic right number of how many should operate. I think the market is the best way to handle this. If there are not a sufficient number of qualified students, some law schools will close.
As for cost, I am very troubled. For public universities, like mine, it is because no longer is the state subsidizing. We have the obligation to provide financial aid, loan forgiveness, and all of the help we can provide our students.
Is it worth it to go to a law school out of the top 30-50. Of course, it is! If someone wants to be a lawyer, there are wonderful schools out of this range to get a law degree and be a terrific lawyer.
I do not favor two year JD programs and do not foresee them. Employers want students who are more practice ready. It is not possible to do that in two-thirds of the time.
I hope that the next 10-20 years will see more emphasis on experiential education, especially live client clinics.
What takeaways do you have from the “Free Speech Week” at Berkeley late this September?
This is a larger subject than I can quickly address here...but it so happens that my column in the Sacramento Bee today is on this very topic. Take a look: http://www.sacbee.com/opinion/california-forum/article176680106.html
As a Boaltie, I was very excited to hear that your goal was to make Berkeley a top 5 school. What are some concrete steps that you are planning on implementing to make this a possibility?
Also, would you consider making a Supreme Court litigation clinic?
Thank you. Very much looking forward to your deanship!
Thank you! I am thrilled to be the new dean at Berkeley Law. It is a terrific school and I look forward to building on its excellence. I hope to continue to hire great faculty and recruit outstanding students and have superb clinics and centers. For better or worse, I have looked very closely at US News rankings and see a path to our improving in all areas.
As for a Supreme Court clinic, I do not think there is a need for another. If we are going to have an appellate clinic, I'd prefer a 9th Circuit clinic where students can brief and argue cases themselves. But I have not yet approached our clinical faculty about that possibility.+
Not quite a collegiate matter, but related to the Constitution and presidential indictments:
Do you think the 25th Amendment's provision allowing the President to cede control to the vice president—e.g. as used by Bush while undergoing medical treatment—is a viable counter to conventional wisdom that sitting presidents cannot be indicted without impeachment?
As far as I've heard—Ronald Rotunda's recently publicized memo to Kenneth Starr notwithstanding—current thought on the unindictability of current presidents rests on claims that such an indictment (and associated defense) would preclude the president from carrying out the duties of his office, but I'm wondering if the 25th Amendment provides a legal counter to this thought. Have there been any research or arguments made to this effect?
Of course, there is no law concerning the 25th Amendment.
I may be in a minority, but I believe that a sitting President can be indicted. I think the most basic teaching of Marbury v. Madison is that no one -- not even the President -- is above the law. Your point about the 25th Amendment is a good one: if defending a criminal suit would interfere with the President carrying out the duties of the office, he or she could temporarily relinquish the office under the 25th Amendment.
First, I'd like to thank you for writing your casebook. It's the gold standard in constitutional law, and I enjoy reading it quite a bit. Makes being in law school a little less dull when things get tough.
In the upcoming oral arguments against President Trump for violating the foreign emoluments clause, CREW, the organization to which you're affiliated with, made the argument that the injury-in-fact suffered that conferred standing to the group comprised of the time you and other law professors would need to spend monitoring Trump's foreign revenue sources. What prior cases support this position, and why would the Court be likely to accept that argument?
Another question on emoluments! In Havens Realty v. Coleman, the Supreme Court held that public interest organization could sue to challenge illegal practices that changed its priority and use of resources. That is true of CREW in the emoluments clause suit. Also, an amended complaint was filed that includes competitor hotels and their employees.
In the recent oral arguments for Gill vs. Whitford, Court watchers speculated that the Court might adopt a gerrymandering standard along the lines of the First Amendment model that Justice Kennedy first advocated in Vieth vs. Jubelirer. Could you explain how the mechanics of a standard like that would work? Anti-gerrymandering proponents preferred a standard that expanded the 1P/1V doctrine. Why would that be more expansive?
Gill v. Whitford was argued today. I have not yet read the transcript of the oral argument. I think it will come down to Justice Kennedy's vote (doesn't it always in high profile cases?) I think his joining Justice Ginsburg's opinion in Arizona State Legislature v. Arizona Redistricting Commission -- which condemned partisan gerrymandering -- could be quite important. As for a standard, I think the issue will be whether Justice Kennedy is persuaded that the "efficiency gap" is a workable approach.
A lot of people like talking about the constitution but very often are these people are misinformed or not very educated in the subject. In your experience what is the best way to have a conversation with these people?
I am by no means an expert on the constitution, but as a law graduate I find these conversations can become awkward especially when it's with someone who's passionate about something political.
I feel your pain on this.
I wish we did a better job of civics education in this country. I look for any opportunity to participate in teacher training programs and to speak in middle schools and high schools about the Constitution.
I often try to explain to people that there is an important difference between what the law is and what we think it should be.
What do you predict will be Justice Gorsuch's lasting impact on the Supreme Court?
Neil Gorsuch is 49 years old. If he remains on the Court until he is 90, the age at which Justice John Paul Stevens retired, Gorsuch will be on the Court for 41 years. He is very conservative. After being sworn in on April 8, he voted together with Clarence Thomas 100% of the time.
My question may be a little too broad for a quick and concise answer, but to the extent possible, I’d love to hear your general thoughts on the gerrymandering case presently before the Supreme Court. How do you think it will turn out, and do you see any particular issues that could perhaps motivate the court to act? I remember covering this issue in law school and I was always under the impression that this was a political question that the Court won’t touch.
I’m curious because I’m a firm believer that the partisan gerrymandering issue is one of the most serious problems in our political system, and I’ve always felt like it was just something that we’ll have to deal with. So the fact that they have heard a gerrymandering case does excite me a little.
Also, to score some brownie points, I still refer to your casebook and supplemental materials pretty regularly as an attorney. Great materials, and thank you for your passion and work in the field of constitutional law!
Thank you for your kind words!
I share your view about partisan gerrymandering. We all learned that voters are supposed to choose elected officials; partisan gerrymandering means that elected officials choose their voters.
The case was argued today. I think it will be 5-4 with Justice Kennedy in the majority. Which way? Well, he jointed Justice Ginsburg's opinion in Arizona State Legislature v. Arizona Redistricting Commission. That gives me hope that he will join Justices Ginsburg, Breyer, Sotomayor, and Kagan and say it is not a political question and is unconstitutional.
The Cal faculty, Antifa and BAMN appear determined to shut down all conservative speakers at Cal. In your opinion, if they were to be successful in this attempt, would this negatively affect Cal's reputation and school ranking?
The University of California is very committed to ensuring that speakers of all views -- conservative and liberal -- can speak on campus. The campus went to great expense to ensure that Ben Shapiro and Milo Yiannopoulos could speak on campus without disruption. Chancellor Carol Christ expressed her commitment to free speech, while protecting safety of students, staff, and faculty. She did a superb job in this regard.
Do you think the right to assemble and protest is a valid constitutional exercise or is it merely a method of silencing dissenting voices?
The right to assemble and protest is very much protected by the First Amendment. These rights are essential for a democracy to work. Sometimes they might silence dissenting voices, but preventing them would even more silence dissenting voices.
Can you explain the emoluments clause and how it might apply to the current administration?
There are two constitutional provisions that are relevant that use the word "emoluments." Article I, section 9 says that the President cannot receive presents or emoluments from a foreign government. Article II, section 1 says that the President can receive emoluments from the federal government other than the salary for the office. I think until recently most people thought emoluments were skin creams. Emoluments means benefits. President Trump is receiving benefits from foreign governments and from the United States (other than his salary) literally every day. This is unconstitutional. It is why I am co-counsel in a lawsuit against him for violating the emoluments clause.
Thank you for doing this AMA. What inspires you to write amicus briefs? And in particular, why did you decide to submit an amicus brief concerning President Trump's pardon of Joe Arpaio?
Since becoming dean, I do not do many amicus briefs simply for reasons of time. I still want to handle some appellate work on a pro bono basis and prefer to spend my time on that. Occasionally, though, I'll be part of an amicus brief where it seems very important and I think that I have something to add.
I agree with Justice Jackson's statement that trying to determine the interpretation of the founders "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." But, given this, is it possible for constitutional interpretation to be something other than a purely partisan battle?
The Constitution is written in broad, open-ended language. What is cruel and unusual punishment? Moreover, constitutional rights are not absolute; there almost always is balancing of competing interests. What is a compelling or an important or a legitimate government interest? There is no way to answer that except by a value choice of the judge or justice. There is no such thing as value neutral judging and there never has been. I don't think that makes it a partisan battle, though it does make it an ideological one.
What is your view of "the paradox of tolerance" as it relates to free expression? My concern is that violent genocidal and terroristic speech is much more potent now, because of the "Law of Group Polarization" (Sunstein) and that allowing this sort of speech and continuing organization for terrorist and genocidal goals so that the social contract, the "tolerance as peace treaty" will break down. How are free speech theorists dealing with this issue, if at all?
BTW, this question was brought to you by yet another Alumni of your Con Law casebook. =D
edit: Forgot to add that their potential for polarization and organization is now greater because of the Internet.
This is an enormously difficult question. I believe that above all the First Amendment means that all views and ideas can be expressed, including defending genocide or terrorism. The First Amendment is founded on a faith that such tolerance will not lead to policies of intolerance and genocide. I share that faith.
Hello Professor! I'm currently using two of your books, in my Con Law class, and my Crim Pro class.
What was it like to work with Laurie Levenson? Any thoughts on the cases during the current Supreme Court term? I'm particularly hoping to hear your thoughts on Gil v. Whitford and Carpenter v. US.
Thank you for doing this AMA! =D
Laurie Levenson is wonderful and a joy to work with.
I have expressed my thoughts on Gill v. Whitford in answering some of the other questions.
As for Carpenter -- whether the police must get a warrant before accessing cell tower location information -- I am unsure. Every Circuit to rule has said that no warrant is required. But the Roberts Court has been protective of electronic information (like in Riley and Jones). I am hoping the latter.
Do you see any hope for a "fix" to the second amendment? I think most of us can agree that there's a problem right now, but at least half of the country won't let anyone even approach the issue. What can we actually do, from a constitutional perspective?
I do not believe that the primary problem is the Second Amendment; it is political. So far, the Supreme Court has held only that the Second Amendment protects a right to have firearms in the home for the sake of security. There is NO Second Amendment limit on the ability to require gun registration, limit the number of guns purchases, prohibit automatic and semi-automatic weapons, or forbid large capacity magazines. The problem is that the NRA and pro-gun lobbyists have great influence and block even quite modest gun regulations.
Do you think free speech applies to things which are factually wrong? Do we need to enforce campus free speech of someone who claims that vaccinations cause autism, that the NASA moon landing never happened, that the earth is flat, that the earth is 4,000 years old, or that 1+1 = 3?
I was always under the impression that correcting someone to say "1+1 does not equal 3, it actually equals 2" was not censorship, but education.
There is no right to publicly say something that is factually false that injures someone's reputation. There is no right to engage in false or deceptive ads. But generally there is a right to say false things. It is not for the government to determine what is truth and punish the rest.