BGS Interviews Dean Chemerinsky

Our team represented by Gabriel Baltazar Pedraza met Dean Erwin Chemerinsky and had a chat with him about opinions of SCOTUS during its recent term, his books and his ideas, in general, regarding free speech on campuses and role of judicial review. Here is an excerpt from the interview. Have a good read!


Berkeley Global Society (BGS): On behalf of the Berkeley Global Society, we want to thank our Dean Erwin Chemerinsky, who was kind enough to give us, his valuable time for this interview. Thank you, Dean Chemerinsky, for speaking to us.

Dean Chemerinsky: My great pleasure, delighted to talk with you.

BGS: We should start by talking about the Masterpiece Cakeshop v. Colorado Civil Rights Commission case. Do you think in this case the opinion of the Court was consistent with other prior decisions of the Court such as Obergefell v. Hodges and United States v. Windsor?

Dean Chemerinsky: I think this is a different issue than Obergefell or Windsor. Those cases were about whether restrictions on same-sex marriage violate the Constitution. The Supreme Court said that laws that prohibit same-sex marriage – federal or state – violate the Constitution. In this case, the question was whether a baker had the First Amendment Right, either based on free access of religion or freedom of speech – to refuse to design and bake a cake. Ultimately, the Supreme Court did not resolve that question. The Court said that in this particular instance, members of the Colorado Civil Rights Commission expressed hostility to religion and that would violate the First Amendment. But the Court really left open the question: Can a business – like a baker or a florist or people who make wedding invitations or a photographer, refuse to offer services for same-sex wedding? I think Obergefell and Windsor, the cases you mentioned, tell us that the answer should be “No”; businesses can’t discriminate on the basis of sexual orientation. But the Supreme Court has not told us yet.

BGS: Now that you mention the religious animus argument, do you think that the same argument should be relevant in the case, Trump v. Hawaii, otherwise known as the Travel Ban Case?

Dean Chemerinsky: Absolutely. I think the evidence of religious animus in Masterpiece Cakeshop was quite weak. There were three things that the Court pointed to as evidence of religious animus. In one meeting, a Commissioner said that businesses in this State shouldn’t be able to discriminate, including based on religion. To me, that’s not hostility to religion, it’s just the law. Second, in another meeting, a Commissioner on the Colorado Civil Rights Commission said that some terrible things have been done in the name of religion, like the Holocaust or slavery, that we justify in terms of religion. That is a true statement. Finally, the Court pointed out the fact, that some other bakers were not held liable when they refused to bake cakes. But in none of those instances, the bakers refused to bake cakes on the basis of race or religion or sex or sexual orientation and so they weren’t violating the law in the way that Masterpiece Cakeshop did. Thus, the evidence of religious animus in Masterpiece Cakeshop was quite weak. But the evidence of religious animus in the Travel Ban Case is quite strong. Donald Trump as a candidate said that he wanted to have a Muslim ban. Rudy Giuliani said that Donald Trump asked him to design a Muslim ban that could get through the Court. It would be interesting to see when Trump v. Hawaii comes down; if the Court is consistent in its approach and willing to find this much stronger evidence of religious animus to make Travel Ban Unconstitutional. [This interview was taken before Trump v. Hawaii came out. Dean CHEMERINSKY in his comment for Los Angeles Times published on June 26, 2018, wrote that the opinion of the Court was not just misguided but also hypocritical].

BGS: As you said before, the petitionary in Masterpiece Cakeshop raised two different Constitutional claims. One was about freedom of religion, which was the one that the opinion of the Court actually addressed and the other one was about freedom of speech. In his concurrence, Justice Thomas said that the designing and making of a cake actually constitutes expressive conduct. Meanwhile, Justice Ginsburg, in her dissent said that the petitioner did not provide enough evidence in order to show that the creation of a cake actually conveys a message. What is your opinion on this matter?

Dean Chemerinsky: I am very sceptical whether baking a cake is speech. If baking a cake is speech, then isn’t making a floral arrangement for a wedding, a speech too? Isn’t taking pictures, speech? Isn’t making the invitations also speech? I think if baking a cake is speech, then isn’t cooking food, speech? There is a very famous Supreme Court case in the mid-1960s that involved a restaurant in Alabama called Ollie’s Barbecue [Katzenbach v. McClung]. It refused to admit and serve African-American customers and was sued for violating the Civil Rights Act. The Supreme Court in the end unanimously ruled against Ollie’s Barbecue. Thus, if baking a cake is speech and you can’t force a baker [who refuses his services], then why isn’t making barbecue also a speech? Wouldn’t it violate their First Amendment Rights? In fact, if baking a cake is expressive activity, isn’t any work expressing activity? Wouldn’t the Court then be opening the door to an exception to every Civil Rights Law that has ever been adopted?

BGS: Very interesting point here. So now that we are talking about free speech, I want to talk about your latest book: “Free Speech on Campus”, that you co-authored with Howard Gillman. I am going to quote to you what I think, is perhaps, the thesis of the book: “Freedom of expression and academic freedom are at the very core of the mission of colleges and universities and limiting the expression of ideas would undermine the very learning environment that is central to higher education.” You also opine that campuses can never censor or punish the expression of ideas no matter how offensive and harmful they might be considered by some persons or groups. However, at the same time, you said that universities should use their most powerful tool, which is to speak and to promote a particular type of speech, which supports inclusion and diversity. And that public universities should also use funds to create programs that give voices or platforms to victims of hateful speech or bullying. Consequently, to what extent, do you consider it is possible that by using public funding to promote a particular type of speech, public universities can also engage in some sort of indirect censorship?

Dean Chemerinsky: You correctly stated the thesis of our book: That all ideas and views should be expressed on campus and that a campus should never be able to stop the expression of views on the grounds that it is offensive, even deeply offensive. Now, you say, might there be pressures on the campus that create indirect censorship. To me, there is an enormous difference between the Constitutional and academic freedom; between the institution; the college or university, punishing speech and social pressure with regards speech. Social pressures about speech exist all the time. We all learn from a young age that there are certain things you don’t say or do in public or there are certain things that you don’t say to other people. That is all about social pressure. I have no problem with social pressure limiting speech. I think what the First Amendment says is: The Government cannot do so.

BGS: Further on the First Amendment, Floyd Abrams contends it is understandable that some nations have sometimes responded by limiting particularly hateful speech that may have contributed to past tragedies. But he also claims that the United States has been fortunate enough not to have suffered any of those horrific events. Do you agree with the idea that in certain democratic societies because of the experiences of the past, hateful speech can be prohibited?

Dean Chemerinsky: I am of course an expert in the United States Constitutional law and I feel very comfortable expressing an opinion about this country. However, it is much harder for me when I talk about foreign countries. But what I do know is, because I have researched a great deal, that when foreign countries have tried to prohibit hate speech, the laws are often used against the very people that they are meant to protect. When England adopted a law prohibiting hate speech, the first prosecution under it was against the Zionist groups – with the prosecutor saying that Zionism is a form of racism. In France, one of the most frequently prosecuted individuals is the activist Brigitte Bardot. She is an animal rights activist as well as an actress and she is against the ritual use of animals as part of religious observances. I could go through the rest of the world and show that hate speech laws are often used against the very people we are trying to protect the most. At the same time, we have also seen across the world that laws restricting hate speech don’t succeed in their goals. Germany, for example, had a law that prohibited advocating Nazism in the 1920s. When the people advocating Nazism got arrested, they just became heroes within the society and the law didn’t achieve its goal at all. Thus, while I’m hesitant to make judgements about foreign countries, I am inherently sceptical that any solution is going to come by restricting speech.

BGS: In another one of your books, “The Case Against the Supreme Court”, you said and I quote to you: “The Court has frequently failed throughout American history at its most important tasks at its most important moment”. You also said that the Supreme Court usually sides with big businesses and the government. It fails to protect the peoples’ rights. Nevertheless, you also suggest that the role of the Court and judicial review is central to protecting the rights of minorities and upholding the Constitutional principles against the repressive desires of majorities. How is it possible to reconcile these two apparently opposed points of view?

Dean Chemerinsky: Again, you correctly state the thesis of the book. I do believe the Supreme Court has often failed – often at the most important tasks and at the most important times. But the question is, even in the light of that, would we be better off without judicial review? I don’t think so. I think that when it comes to enforcing the limits of the Constitution, we do need the judiciary. The Constitution is meant to limit government. Those limits become meaningless if there is no way to enforce them. Also, the Constitution is meant to protect minorities. You can’t leave the protection of minorities to the majority. Now the court will often fail at protecting minorities but there is really no alternative. I spent my career representing people who are not likely to succeed in the political process. I have handled appeals against death penalties. I have represented people who’ve received huge sentences for minor crimes. I have represented a Guantanamo’s detainee. I have represented homeless men challenging the Ten Commandments on a monument at Texas State Capitol ground(s). My clients might or might not win in the courts but they are not going to win in the political process. When was the last time, a state legislator adopted a law to write more rights to criminal defendants or more rights to prisoners?

BGS: Finally, what would you say is the importance of studying American Constitutional law for lawyers that come from other jurisdictions?

Dean Chemerinsky: In part, it is the chance to learn about American Government. The reality is that there is scarcely any issue in the United States that does not, at some point, become a Constitutional issue. And it is not new. Alexis de Tocqueville said that in the early 19th Century – and it is even more true today. Also, the American Constitution has had influence on constitutions around the world so it might be useful to know for that reason… The American Constitution is a deeply flawed document. I don’t recommend that the people study it because of any perfection about it or how it has been interpreted. But it is just one form of government. And it the one, that I think, has influenced [democracies] across the world.

BGS: Thank you very much, Dean Chemerinsky, for having us

Dean Chemerinsky: Thank you, it has been a pleasure talking with you.