By Gwyneth K. Shaw
Professor David Oppenheimer and a group of J.D. and undergraduate Legal Studies students recently submitted an intervention — the European term for an amicus brief — in a case against the nation of Georgia now before the European Court of Human Rights.
Working with a feminist organization in Georgia and the Equality Law Clinic at the Free University of Brussels, the group wrote a brief on behalf of a woman who had been charged with defamation after accusing her supervisor of sexual harassment.
“It’s a common problem around the world,” says Oppenheimer, who leads the Berkeley Center on Comparative Equality and Anti-Discrimination Law and is also the co-faculty director of Berkeley Law’s Pro Bono Program. He wrote a brief, again with students, in a similar case before the Supreme Court of Japan in 2021. His most recent book, The Diversity Principle: The Story of a Transformative Idea, was published earlier this year.
In the Georgia case, the team researched the protections federal and California laws give to people who’ve complained about workplace harassment. In the U.S., a defamation plaintiff must prove that the defendant knew a statement was false — effectively the opposite of the European standard. California law goes significantly beyond that, explicitly protecting statements made about sexual assault, harrassment, or discrimination from lawsuits.
“Under most national systems, it is still the case that the person accused of defamation must prove that her statement was true, so the shift of the burden of proof under American law is very important, and California law takes it a step further,” Oppenheimer says. “Our portion of the brief recommended that the European Court of Human Rights impose on its member states the American and California standards, in order to address the problem of gender discrimination in conjunction with the right of free speech under the European Convention of Human Rights.”
A unique opportunity
Oppenheimer, who frequently does pro bono work with students, recruited some of the team from projects already in progress. Others are former students who heard what he was up to and volunteered to help. The two undergraduates were research assistants working with him through UC Berkeley’s Undergraduate Research Apprenticeship Program.
He says working with students on this type of project is hugely rewarding for both sides.
“They’re so brilliant, and they see things I wouldn’t see, and it’s fun to work on things that matter with people who care about them,” Oppenheimer says. “It’s my job to teach, and it’s my job to do research, and when I can combine those things I’m doing my job the way I think it’s supposed to be done.”
Melinda Lu, who graduated from UC Berkeley in December, heard about Oppenheimer, his center, and his work through friends on the Cal Mock Trial team. She started at the center in summer 2025 as a volunteer, then became a research apprentice.
“The people who are a part of the center definitely make the work the most fulfilling,” she says. “It’s really inspiring to be surrounded by people who are so deeply devoted to anti-discrimination work and public interest law, and I feel like every time I talk to Professor Oppenheimer I’m learning something new about the field of civil rights litigation. Whether it’s a new Supreme Court ruling or his experience writing The Diversity Principle, being around incredible legal scholars has been the most interesting part of the project.”
Lu, who double-majored in political science and Asian American and Asian Diaspora Studies, is interested in law school, particularly after her stint at the center.
“I want to become a anti-discrimination trial advocate, hoping to pursue plaintiff’s side employment litigation,” she says. “Working on Professor Oppenheimer’s project definitely increased my interest, and made me more passionate about civil rights law.”
Now, the team waits to find out whether the European Court of Human Rights will allow them to intervene in the case. If the motion is accepted, it’s likely one of the lawyers involved will have the chance to make the brief’s argument when the court hears the case. Oppenheimer says it won’t be him at the podium, but he hopes to sit in the audience and watch.
“If the timing is right, it will be very exciting,” he says. “Hopefully the court will then say under the law of the convention the right to free speech has to be protected and the right to be free from gender discrimination — including harassment — has to be protected, and therefore there has to be a burden shift, and the burden has to be on the person who’s claiming that they were defamed and various related protections.”