Jesse Choper

What are the implications of the most recent Supreme Court decisions?

Jesse Choper interviewed on KALW-FM, Your Call, June 30, 2014

“I don’t think that anybody made light of the fact that the issue of freedom of choice is a very, very important one for women and for other people as well. But I think you want to remember that the Supreme Court was willing to assume that it was a compelling interest.”

Not holding their tongues: can the commencement speech be saved?

Robert Cole and Jesse Choper quoted in California Magazine, May 28, 2014

“Honorary degrees expose universities to a broader range of objection,” Cole says. “A university may not agree or disagree with a person’s speech, but an honorary degree is an endorsement of that person.” He believes universities should set public criteria for giving out honorary degrees, and steer away from awarding them to people merely because they are famous.

Jesse Choper chalks up a lot of these commencement speech issues to political correctness. “That’s why I’m not a fan,” he says. “I think it’s important to have a variety of views.” To this day, he remembers a small group that tried to hijack a Berkeley law school graduation in the 1990s by hiring a plane to fly a banner over the ceremony to protest the ban on affirmative action. “I don’t think it was effective at all,” Choper says.

Could Donald Sterling succeed in a legal fight against selling the Clippers?

Jesse Choper quoted in The Christian Science Monitor, May 8, 2014

The remarks were recorded illegally and disseminated without Sterling’s consent, says Jesse Choper, a constitutional specialist. Therefore, he says, they might not meet the NBA constitution’s admonition that “an owner will not take any position or action that will materially and adversely affect a team or the league,” as ESPN puts it. “This was a confidential conversation with a lady friend: He certainly wasn’t taking any position, and he never made it public,” Mr. Choper says. “The key words are ‘position’ and ‘action.’”

Donald Sterling: Will it be hard to force him out of NBA?

Jesse Choper quoted in The Christian Science Monitor, April 29, 2014

“It seems clear to me that Silver has recognized substantial difficulty in forcing [Sterling] to sell against his will, and there are several interpretations of the NBA rules that might lend themselves to that,” says Jesse Choper…. “Some of the rules are not clear and would take only a court to decide. My guess is they are hoping he will realize he can make a nice profit by selling, and that he will.”

Measuring California’s impact from affirmative action ban

Jesse Choper quoted on ABC 7 News, April 22, 2014

“This court, the five-justice majority, is very wary of upholding any racial preferences,” said Jesse Choper…. At Cal, black students are among the most underrepresented. “I don’t think there is any question that at Berkeley it does [matter] for African Americans. You have a very small representation,” said Choper.

Supreme Court protects free speech selectively

Jesse Choper and Kenneth Bamberger quoted in San Francisco Chronicle, April 11, 2014

Jesse Choper, a constitutional law professor at UC Berkeley and a self-described moderate, said the court’s free-speech priorities seem skewed. “Protecting dissidents is more central to the First Amendment’s free-speech clause than simply offensive speech,” because a diversity of opinions promotes democracy, he said.

Another Berkeley law professor, Kenneth Bamberger, said the court has been unsympathetic to free speech “where the government is acting as the authority.”

San Bruno explosion case against PG&E could be hard to prove

Jesse Choper quoted in The Christian Science Monitor, April 2, 2014

“It is certainly not unheard of to find a corporation guilty of an offense and impose fines. It is much less common to impose fines or prison sentences on directors, officers, or employees of a corporation,” says Jesse Choper…. “The court or jury would have to find guilt beyond a reasonable doubt of a specific federal offense.”

Finally, a way to diversify Cal universities?

Jesse Choper quoted in California Magazine, March 10, 2014

Beyond that, says UC Berkeley Law professor Jesse Choper, even if the state’s affirmative action ban were to be repealed, times have changed since 1996—and so has the Supreme Court of the United States. “There’s a big hurdle now,” he says. Unlike previous courts, which granted institutions a bit more leeway in crafting diversity-boosting programs, the philosophy of this court is clear: “Race-based programs are a bad thing and we can only use them in extremis.”