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4.2.12 WC: 191694 TOTAL WORD COUNT 191,694 TOTAL PAGES 401 TABLE OF CONTENTS Preface: Ideology as Biography—A life of continuous change We 4391 Pages 9 Part I: From Brooklyn to Cambridge (with stops in New Haven and Washington) Chapter 1: Born and religiously educated in Brooklyn Wc 15,669 Pages 27 Chapter 2: My Secular Education—Brooklyn and Yale Wc 3811 Pages 6 Chapter 3: My Clerkships: Judge Bazelon and Justice Goldberg Wc 13969 Pages 24 Chapter 4: Beginning my life as an academic—and its changes over time We 7530 Pages 12 Part II: The changing sound and look of freedom of speech: from the Pentagon Papers to Wikileaks and from Harry Reems' Deep Throat to Woodward and Bernstein's "Deep Throat." Chapter 5: The Changing First Amendment—New Meanings For Old Words Wc 5259 Pages 9 Chapter 6 Offensiveness- Pornography: I Am Curious Yellow and Deep Throat We 12,338 Pages 24 Chapter 7 Disclosure of Secrets: From Pentagon Papers to Wikileaks Wc 6905 Pages 13 Chapter 8: Expressions that incite violence and disrupt speakers Wc 3545 Pages 6 1 EFTA01090973 4.2.12 WC: 191694 Chapter 9: The Right to Falsify History: Holocaust Denial and Academic Freedom We 5031 Pages 10 Chapter 10: Speech that Conflicts with Reputational and Privacy Rights Wc 4685 Pages 9 Part HI: Criminal Justice: From Sherlock Holmes to Barry Scheck and CSI Chapter 11: "Death is different"1: Challenging Capital Punishment Wc 3157 Pages 6 Chapter 12: The death penalty for those who don't kill: Ricky and Raymond Tison Wc 6392 Pages 20 Chapter 13: Using Science, Law, Logic and Experience to Disprove Murder We 23825 Pages 51 Chapter 14: The changing politics of rape: From "no" means "maybe," to "maybe" means "no." Wc 15644 Pages 29 Chapter 15: The changing impact of the media on the law Wc 14877 Pages 29 PART IV: THE NEVERENDING OUEST FOR EQUALITY AND JUSTICE Chapter 16: The Changing Face of Race: From Color Blindness to Race-Specific Remedies Wc 14130 Pages 26 Chapter 17 The crumbling wall between church and state: from separation to christianization Wc 8883 Pages 16 Chapter 18: From Human Right to Human Wrongs: How the hard left hijacked the Human Rights Agenda Wc 14667 Pages 27 Justice John Paul Stevens 2 EFTA01090974 4.2.12 WC: 191694 Conclusion—Closing Argument: Looking back at my 50 year career and forward to the laws next 50 years. We 7047 Pages 13 APPENDIX-VIGNETTES We 8817 Pages 42 (each on separate page) EFTA01090975 4.2.12 WC: 191694 Alan Dershowitz Takes The Stand: An Autobiography Or Taking the Stand—an Autobiography by Alan Dershowitz Preface: Ideology as Biography—A life of continuous change My legal practice has been described as "the most fascinating on the planet."2 Though perhaps hyperbolic, the fact is that during my long career as a lawyer, I have: • represented and counseled presidents, prime ministers, United Nations high officials, judges, senators, actors, musicians, athletes as well as ordinary people who have had the most extraordinary cases; • played a role, sometimes large, sometimes small, in some of the most cataclysmic events of the last half century—from the assassination of JFK, to the forced resignation of Richard Nixon, to the Chappaquiddick investigation of Ted Kennedy, to the impeachment of President Clinton, to the war crimes trials of accused war criminals, to the defense of Israel in international fora. • represented some of the most despised and despicable people on the face of the earth and sat across the table from defendants accused of mass murder, terrorism, war crimes, torture, rape and hate crimes; • served as a lawyer in some of the most transforming legal cases of the age, including the Pentagon Papers Case, the WikiLeaks investigation, the anti-war prosecutions of Dr. Spock, the Chicago 7, the Weather Underground and Patricia Hearst; • represented some of the most controversial defendants in recent history: OJ Simpson; Claus Von Bulow; Mike Tyson; Leona Helmsley and Michael Milken. This autobiography delves beneath the surface of these cases and causes. It presents an inside account of legal events that have altered history and that continue to have a major impact on the lives of millions of people. What Tocqueville observed two centuries ago—that in our country nearly every great issue finds its way into the courts-is even truer today than it was then. Accordingly, my autobiography will, in some sense, be a history of the last half century as seen through the eyes of a lawyer who 2 [quote] 4 EFTA01090976 4.2.12 WC: 191694 was privileged to have participated in many of the most intriguing and important cases and controversies of our era. The law has changed considerably over the past half century. I have not only observed and written about these changes, I have helped to bring some of them about through my litigation, my writing and my teaching. This book presents an account of these changes and of my participation in the cases that precipitated them. It is also an account of one man's intellectual and ideological development during a dramatic century of world, American, and Jewish history, enriched with anecdotes and behind-the-scenes stories from my life and the lives of those I have encountered. An autobiographer is like a defendant who takes the stand at his own trial. We all have the right to remain silent, both in life and in law. But if one elects to bear witness about his own life, then he or she must tell the truth, the whole truth and nothing but the truth. This commitment to complete candor is subject only to limited privileges such as those between a lawyer and a client, or a husband and a wife. A witness may be questioned not only about his actions, but also about his motivations, his feelings, his biases, and his regrets. In this autobiography, I intend to comply with these rules to the best of my ability. Why then have I waived my privilege of silence and decided to write this autobiography: because I have lived the passion of my times and participated in some of the most transforming, legal and political events of the past half century. In this autobiography, I will describe and explain my role in litigating cases and advocating causes that have changed the political and legal landscape—for better or worse. I will also explain how I litigate difficult cases—the tactics and strategies I have successfully developed over the years. My oath of honesty makes it impossible to hide behind the false modesty that often denies the readers of autobiographies an accurate picture of the impact an author has had on events. Since you're reading these words, you've probably encountered the public Alan Dershowitz— confrontational, unapologetic, brash, tough, argumentative, and uncompromising. Those who know me well—family, friends, and colleagues—hardly recognize the "character" I play on TV [alternative: my TV persona]. They tell me in my personal life, I shy away from confrontation and am something of a pushover. My son Elon says that when people bring me up in conversation, he can instantly tell whether they know me from TV or from personal interactions—whether they know what he calls "The Dersh Character" or "the real Alan." This sharp dichotomy between my public and private personas was brought home to me quite dramatically, when a major motion picture, Reversal of Fortune, was made about my role in the Claus Von Bulow case, and a character, based on me, was played by Tony Award actor Ron Silver. The New York Times asked me to write an article for the arts and entertainment section on how it feels to watch someone play you on the big screen. The opening scene of the film had my character playing an energetic basketball game with himself—true enough. But when he's interrupted by a phone call giving him the news that he had lost a case involving two brothers on death row (the Tison brothers, see Chapter 12), he smashes the phone on the pavement. 5 EFTA01090977 4.2.12 WC: 191694 When I complained to my son, who had co-produced the film, that I don't throw phones when I lose cases—even capital cases-my son responded: "Dad, you've got to get it through your head that the person on the screen isn't you; it's your character—`the Dersh Character."' He continued to assure me, in his best professional manner, that characters have to "establish themselves" early in the film, and that this "establishing scene" was intended to convey my energy and my passion for the rights of criminal defendants. "If we had several hours, we could have demonstrated your passion by recounting your involvement in many other cases, but we had about a minute; hence the smashed phone." I wasn't satisfied. "That scene doesn't show passion," I said. "It shows a temper tantrum." My son tried to explain that a character in a film has to be shown with some faults early on in the film, so that he can "overcome" them. "I know you don't lose your temper," Elon assured me smilingly, "but the viewing audience has to see you grow." Still, I didn't like being portrayed as a person whose passions—manifested by occasional curses in addition to the smashed phone—are reserved exclusively for his professional life. My "girlfriend" in the film—a mostly fictional character played by Annabella Sciorra—complains loudly that my character has nothing left for the people around him, and my character seems to agree: "My clients are the people I care about." Poor guy! I hope that's not me, although I do have to acknowledge that people who know me only professionally assume that I have nothing left for those I love. But the fact is that I reserve a lot of love, loyalty and friendship for family and people close to me. I asked Ron Silver—who knows how important my family and friends are to me—how he felt playing me in way that he knew was something of a stereotype of the passionate lawyer for whom, Oliver Wendell Holmes' said, "the law is a jealous mistress." He responded: "I'm playing the public Alan Dershowitz—the one people see on TV and in the newspapers. I can't get to know the private Alan well enough to play him, and frankly the public isn't interested in that side of you." In this book, I will try to interest my readers in both sides of my life, and how each impacts the other, and how both are very much the products of my early upbringing and my lifelong experiences. I think of myself as an integrated whole, though the very different roles I play—as lawyer, teacher, writer, father, husband, friend, colleague—require somewhat different balances among the various elements of my persona. Although this autobiography is my first attempt to explore my life in full, I have written several earlier books that touch on aspects of my public life. The Best Defense dealt with my earliest cases during the first decade of my professional life. Chutzpah covered my Jewish causes and cases. Reversal of Fortune and Reasonable Doubts each dealt with one specific case (Von Bulow and O.J. Simpson). I will try not to repeat what I wrote in those books, though some overlap is inevitable. This more ambitious effort seeks to place my entire professional life into the broader context of how the law has changed over the past half century and how my private life prepared me to play a role in these changes. 6 EFTA01090978 4.2.12 WC: 191694 I bring to this task a strong and dynamic world view that has been shaped by my life experiences and which has, in turn, shaped my life experiences. In looking back on my life, I am inevitably peering through the prism of the powerful ideology that has provided a compass for my actions. Ideology is biography. Where we stand is the result of where we sat, who we sat next to, what we observed, what happened to us, and how we reacted to our experiences. Ideology is complex. Its causes are multifaceted and rarely subject to quantification. The philosopher, Descartes, who famously said, "I think therefore I am" got it backwards. I am—I was, I will be—therefore I think what I think. The ability to think is inborn—a biological and genetic endowment. The content of one's thinking—the nature and quality of our ideas-is more nurture than nature. Without human experiences there could be no well-formed ideology, merely simple inborn reflexes based on instinct and genetics.; There is no gene, or combination of genes, that ordains the content of our views regarding politics, law, morality or religion.4 Biology gives us the mechanisms with which to organize our experiences into coherent theories of life, but without these experiences—which begin in the womb and may actually alter the physical structures of our brain over time—all we would have are the mechanics of thought and the potential for formulating complex ideas and ideologies. It is our interactions—with other human beings, with nature, with nurture, with luck, with love, with hate, with pleasure, with pain, with our own limitations, with our mortalitys—that shape our world views. Among the most enduring and influential human encounters are those experienced at an early age. These include the accidents of birth: to which family, in which place, at which time we happen to come into the world. It is true that most people die with the religion and political affiliation into which they were born (or adopted). Identical twins, separated at birth, may share a common disposition, IQ and susceptibility to disease, but they are likely to share the religious and political affiliations of their adoptive parents. There is little genetic about the factors that directly influence religious, political or other ideological choices. They are largely a function of exposure to external factors.6 Many of these external factors are totally beyond the control of the person. They may involve decisions made by others, often before they were even born. Probably the most significant decisions affecting my own life were made by my great grandparents on my father's side and my grandparents on my mother's side: the decision to leave the shtetls of Poland and move to New York. Had they remained in Poland, as some of my relatives did, I would probably not have survived the Holocaust, since I was three years old when the systematic genocide began? That 3 Quote Steve Pinker 4 FN on Mark Hauser "Moral Minds." Drew Weston, George Lakoff. 5 Kafka once quipped that "the meaning of life is that we die," and when God told Adam and Eve that if they eat from the tree of knowledge, they will die, he meant they will obtain the knowledge of mortality—which elevated humans above other species. 6 This is not to deny the likely influence genetics and biology may have on a predisposition toward homosexuality or other orientations. Nor is it to deny that biological predisposition may influence ideology through the prism of experience. See [cite] [expand] 7 Perhaps, of course, had my forbearers remained in Poland, my father might not have met my mother (although their families lived in neighboring shtetls). Accident, timing and luck determine virtually everything relating to birth. 7 EFTA01090979 4.2.12 WC: 191694 may be why Jews of my generation are so influenced in their attitudes and ideology by the Holocaust. There but for the grace of God, and the forethought of our grandparents, go we. (In 1999, I wrote a novel Just Revenge, which reflected my dear feelings about the unavenged murders of so many of my relatives.) Once a person is born in a certain place, at a certain time, attitudes and ideology are shaped (in part, because luck always intrudess) directly by family, religion, culture, neighborhood, childhood friends, teachers and other mentors and role models. Sometimes they are a reaction to these influences. Often they are a combination of both. If ideology is biography, then autobiography must honestly attempt to explore the sources of the author subject's ideology in his or her life experiences. This requires not only deep introspection, but a willingness to expose—to the reader but also to the writer—aspects of one's life that are generally kept private or submerged. Everyone has the right, within limits, to maintain a zone of privacy. I have devoted a considerable portion of my professional life seeking to preserve, indeed expand, that zone. But a decision to write an autobiography requires a commitment to candor and openness—a "waive?' (to use a legal term) of much of the right to privacy. I keep fairly complete records of my cases and controversies. My archives are in the Brooklyn College Library where, subject to a few limited exceptions, they are available for all to read. I have published dozens of books, hundreds of articles and thousands of blogs. My professional life has been an open book and the accessibility of my archives—containing letters, drafts and other unpublished material— opens the book even further. But beyond the written record lies a trove of memories, ideas, dreams, conversations, actions, inactions, passions, joys, and feelings not easily subject to characterization or categorization. Fortunately, I have a very good memory (more about that later) and I am prepared to open much of my memory bank in this autobiography, because I believe that the biography that informs my ideology and life choices cannot be limited to the externalities of my career. It must dig deeper into the thought processes that motivate actions, inactions and choices. In the process of self- exploration, I must also be willing to examine feelings and motivations that I have kept submerged, willfully or unconsciously, from my own conscious thought process. I don't know that I will be able to retrieve them all, but I will try. Nor can I be absolutely certain that all of my memories are photographically precise, since my children chide me that my stories get "better" with each retelling. I believe that my actions, inactions, and choices have been significantly influenced by my upbringing. That might not seem obvious to those who know me and are familiar with my family background. Superficially, I am very different from my parents and grandparents, who lived insular lives in the Jewish shteles of Galicia, Poland, the Lower East side of Manhattan, and the Williamberg, Crown Heights and Boro Park Orthodox Jewish neighborhoods (also "shtetles") of Brooklyn. My parents and grandparents had little formal education. They rarely traveled beyond their routes to and from work (except for my grandparents' one-way journeys 8 An old Yiddish expression says: "Man plans, God laughs." 8 EFTA01090980 4.2.12 WC: 191694 from Poland to Ellis Island). They almost never attended concerts, the Broadway Theater or dance recitals. They owned no art, few books, and no classical records. They rarely visited museums or galleries. Their exposure to culture was limited to things Jewish—cantorial recitations, Yiddish theater, lectures by Orthodox rabbis, Jewish museums, Catskill Mountain and Miami Beach entertainment. My adult life has been dramatically different. I travel the globe, meet with world leaders, own a nice art collection, am deeply involved in the world of music, theater and other forms of culture, and lead a largely secular life (though I too enjoy cantonal music "borsht belt" humor, and a good pastrami sandwich). Yet I am their son and grandson. Although my life has taken a very different course—both personally and professionally—I could not begin to explain who I am, how I got to be who I am, and where I am heading, without exploring my family background and heritage. It is this history that helped to form me, that caused me to react against parts of it, and—most important—that gave me the tools necessary to choose which aspects of my traditions to accept and which to reject.9 I had a very powerful upbringing, having been born to a family with strong views on religion, morality, politics and community service. My neighborhood was tight knit. Everyone had a place and knew their place. Status was important, especially for our parents and grandparents, as was "yichus" (the Yiddish term for ancestry). But I grew up at a time of change, growth, excitement and opportunity. Despite the reality of pervasive anti-Jewish discrimination—in college admission, employment, residency and social clubs—my generation believed there were no limits to what we could accomplish. If Jackie Robinson could play second base for the Brooklyn Dodgers, we could do anything. Maybe that was the reason so many successful people grew up in Brooklyn in the immediate post-war period. (In 1971, I was selected among 40 young scholars from around the country for a distinguished fellowship. When we met in Palo Alto, California, we discovered close to half the group had Brooklyn roots!) We were the breakout generation, standing on the broad shoulders and backbreaking work of our immigrant grandparents and our working class parents. I cannot explain, indeed understand, my own world views, without describing those on whose shoulders I stand, that from which I have broken out, and the experiences that have shaped my life. So I will begin at the beginning, with my earliest memories and the stories I have been told about my upbringing. But formative experiences do not end at childhood or adolescence. They continue throughout a lifetime. Learning never ends, at least for those with open minds and hearts, and, though ideologies may remain relatively fixed over time, they adapt to changing realities and perceptions. Winston Churchill famously quipped, "Show me a young conservative and I'll 9 My dear friend and teaching colleague Steven Pinker believes that parental influence may be overvalued [CITE]. I'm certain that it varies among individuals and families. 9 EFTA01090981 4.2.12 WC: 191694 show you someone with no heart. Show me an old liberal and I'll show you someone with no brain." It is surely true that some people become less idealistic with age, with economic security and family responsibilities. But it is equally true that some young conservatives become more liberal as they seek common ground with their children, while other people remain true to their earlier world views. It depends on the life one has lived. I have been fortunate to live an ever changing life, both personally and professionally, and although my views on particular issues have been modified over time, my basic commitment to liberal values has remained relatively constant, in part because of my strong upbringing and in part because my career has been based on advocating these values. An ancient Chinese curse goes this way: "May you live in interesting times." One of the worst things a doctor can say after examining you is: "Hmm... that's interesting." I have been blessed with living an interesting, if often controversial, life. As an adolescent, I was involved in causes such as justice for the Rosenbergs, abolition of the death penalty, and the end of McCarthyism. As a law clerk, during one of the most dramatic periods of our judicial history, I worked on important civil rights and liberties cases, heard the "I have a dream" speech of Martin Luther King, was close to the Cuban Missile Crisis, and partook of events following the assassination of John F. Kennedy. As a young lawyer, I played a role in the Pentagon Papers case, the forced resignation of Richard Nixon, and the anti-war prosecutions of Dr. Spock, the Chicago Seven, the Weather Underground and Patricia Hearst. I consulted on the Chappaquiddick investigation of Ted Kennedy, on the attempted deportation of John Lennon and the draft case against Mohammad Ali. I was an observer at the trial of accused Nazi war criminal John Demjanjuk and subsequently consulted with the Israeli government about that case. Later in my career, I was a lawyer in the Bill Clinton impeachment, the Bush v. Gore election case, the efforts to free Nelson Mandela, Natan Sharansky and other political prisoners. I participated in the Senate censure of California Senator Alan Cranston, the Frank Snepp CIA censorship case, prosecutions involving the former Yugoslavia in the Hague, the defense of Israel against international war crime prosecution, and the investigation of Wiki-Leaks and Julian Assange. I worked on the appeals of the Jewish Defense League murder case and the Jonathan Pollard spy prosecution. I consulted on the defense of director John Landis, the OJ Simpson double murder case and the Bakke "affirmative action" litigation. I challenged the Bruce Franklin tenure denial at Stanford and appealed the Claus Von Bulow attempted murder conviction, the Leona Helmsley tax case, the Mike Tyson rape prosecution, the conviction of Conrad Black, the Tison Brothers murder case, the "I Am Curious Yellow" censorship prosecution, the Deep Throat case, the nude beach case on Cape Cod and the HAIR censorship case. I participated in the Woody Allen-Mia Farrow litigation, the Michael Milken case, the litigation against the cigarette industry and the wrongful death suit on behalf of Steven J. Gould. I have won more than 100 cases and have been called—perhaps also with a bit of hyperbole— "the winningest appellate criminal defense lawyer in history." Of the more than three dozen 10 EFTA01090982 4.2.12 WC: 191694 murder and attempted murder cases in which I have participated, I lost fewer than a handful. None of my capital punishment clients has been executed. Among the people I have advised are President Bill Clinton, Prime Minister Benjamin Netanayu and President Moshe Katsav of Israel, Canadian Prime Minister Pierre Trudeau, Senator Alan Cranston, the Deputy Secretary General of the United Nations, Marlon Brando, Frank Sinatra, Woody Harrelson, Michael Jackson, John Lennon, Natalie Portman, Broadway producer David Merrick, New England Patriot Head Coach Bill Belichick, the actress Isabella Rossellini, the international arms dealer Adnan Khashoggi, singers Carly Simon and David Crosby, basketball player Hakeem Olajuwon, baseball star Kevin Youkilis, football quarterback Tom Brady, saxophonist Stan Goetz, artist Peter Max, cellist Yo Yo Ma, comedian Steven Wright, actor Robert Downey, Jr., several billionaires such as Sheldon Adelson and Mark Rich, authors such as Saul Bellow, David Mamet and Elie Wiesel, and judges, senators, congressmen, governors and other public officials. In addition I have had some of the most interesting cases involving people who are not well known but the cases raised intriguing and fascinating issues. Among these issues are whether a man can be prosecuted for attempted murder for shooting a dead body that he thought was alive, whether a husband can be prosecuted on charges of slavery for not doing anything about his wife's alleged abuse of domestic employees, whether a husband can be forced to adopt a child and whether a law firm can discriminate in its partnership decision. I have engaged in public debates and controversies with some of the most contentious and influential figures of the age including William F. Buckley, Noam Chomsky, Rabbi Meyer Kahan, Rabbi Adan Steinzaltz, Justice Antonin Scalia, Ken Starr, Elie Wiesel, Vaclav Havel, Golda Meir, Red Auerbach, William Kunstler, Roy Cohn, Norman Mailer, Patrick Buchanan, Norman Podhoretz, Bill O'Reilley, Skip Gates, Alan Keyes, Dennis Prager, Jeremy Ben Ami, Mike Hukabee, Shawn Mann, William Bulger, James Zogby, Jimmy Carter, Richard Goldstone, Norman Finkelstein and many others. I was part of an American team of debaters selected to confront Soviet debaters on a nationally televised debate, during the height of Soviet oppression of Refusenicks, for which William Buckley suggested that the US team be given medals of freedom. I was a regular "advocate" on the nationally-televised Peabody award winning show "The Advocates" on PBS for several years. I have been interviewed by nearly every television and radio talk and news show and have written for most major newspapers, magazines and blogs. This is my 30'h book. In recent years, I have devoted considerable energy to the defense of Israel, while remaining critical of some of its policies. The Forward has called me, "America's most public Jewish defender," and "Israel's single most visible defender — the Jewish state's lead attorney in the court of public opinion." In 2010, The Prime Minister of Israel asked me to become Israel's Ambassador to the United Nations—an offer I respectfully declined because I am an American, not an Israeli citizen. I have agreed instead to be available to serve as an American lawyer for Israel before international tribunals. 11 EFTA01090983 4.2.12 WC: 191694 I have also taught thousands of students, many of whom have become world and national leaders. I have learned from each of these experiences, and they too have helped to shape my evolving world views. I have seen the law change, in some respects quite dramatically, in the half century I have been practicing it. If the past is the best predictor of the future, then I also have some ideas about what changes we might anticipate in the law over the next half century. Oliver Wendell Holmes urged his young colleagues to "live the passion of your times." I have followed that advice and now wish to share this passion with my readers. 12 EFTA01090984 4.2.12 WC: 191694 Part I: From Brooklyn to Cambridge (with stops in New Haven and Washington) Chapter 1: Born and religiously educated in Brooklyn The doctor told my pregnant and anxious mother that she would give birth "first in September." So when I was born on September 1, 1938, my mother thought the doctor was a genius. I was the first person in the history of my family to be born in a hospital. My maternal grandfather, an immigrant from Poland, wanted me to be born at home, because in Poland, there were rumors that Jewish babies were switched with Polish babies. To prevent this from happening to his grandchild, he stood guard over me at the baby room. Nevertheless, when I started to misbehave early in my life, he was convinced that the switch had taken place, despite me being—in my paternal grandmother's words—"the spittin' image" of my father. (I was well into my adult life before I realized that I was much more like my mother in ways other than physical resemblance.) I was born in the Williamsberg neighborhood of Brooklyn, where both of my parents had lived most of their lives, having moved as youngsters from the lower East Side of Manhattan where they were born to Orthodox Jewish parents who had emigrated from Poland at the end of the 19th and beginning of the 20th Century. When my mother was pregnant with my brother Nathan, who is three and a half years younger than me, we moved to the Boro Park neighborhood of Brooklyn where I grew up and where my parents remained until their deaths. Boro Park is unique among American Jewish neighborhoods in that it has always been Jewish. Unlike the neighborhoods of Manhattan—such as the Lower East side and Harlem, which have had changing ethnic populations-Boro Park has always been, and remains, dominantly Jewish. The first occupants of the small tract houses built near the beginning of the twentieth century of the site of rural farms were Jewish immigrants seeking to escape from the crowded ghettos of Manhattan and later Williamsberg. The current occupants of the modern multi-dwelling units are Chasidic Jews who have moved from Crown Heights and Williamsberg seeking to recreate the shtetles of Eastern Europe. When I lived in Boro Park during the 1940s and 1950s, it was a modern Orthodox community of second generation Jews whose grandparents had emigrated mostly from Poland and Russia during the late 19th and early 20th centuries. Following the end of World War II, some displaced persons who had survived the Holocaust moved into the neighborhood. My parents reached adulthood in Williamsberg during the peek of the Great Depression. My mother Claire had been a very good student at Eastern District High School and at the age of 16 enrolled at City College in the fall of 1929—the first in the history of her family to attend college. She was forced to leave before the end of the first semester by her father's deteriorating economic situation. She went to work as a bookkeeper, earning $12 a week. My father, who was not a good student, attended a Yeshiva high school in Williamsberg. It was called Torah V'Daas—translated as Bible and Knowledge. He began to work during high school and never attended college. 13 EFTA01090985 4.2.12 WC: 191694 My grandparents knew each other from the neighborhood even before my parents met. My grandfathers were both amateur "chazanim," cantors, who sang the Jewish liturgy in small synagogues, called "shteebles." They were slightly competitive, but were both involved in the founding of several Jewish institutions in Williamsberg, including a free loan society, a burial society, the Young Israel synagogue and the Torah V'Daas Yeshiva. Their day jobs were typical for their generation of Jewish immigrants. Louis Dershowitz, my paternal grandfather, sold corrugated boxes. Naphtali Ringel, my maternal grandfather, was a jeweler. My grandmothers, Ida and Blima, took care of their many children. Each had eight, but two of Blima's children died of diphtheria during an epidemic. My mother nearly died during the influenza outbreak of 1917, but according to family lore, she was saved by being "bleeded." I was born toward the end of the depression and exactly a year to the day before the outbreak of the Second World War. I was the first grandchild on both sides of my family. Many were to follow. Among my earliest memories were vignittes from the Second World War, which ended when I was nearly seven. I can see my father pasting on the Frigidaire door newspaper maps depicting the progress of allied troops toward Berlin. I can hear radio accounts, in deep Stentorian voices, from WOR (which I thought spelled "war") announcing military victories and defeats. I can still sing ditties I learned from friends (the first sung to the tune of the Disney song from Snow White). "Whistle while you work Hitler is a jerk Mussolini is a meanie And the Japs are worse" And another (sung to the melody of "My Country Tis of Thee, Sweet Land of Liberty"): "My country tis of thee Sweet land of Germany My name is Fritz My father was a spy Caught by the FBI Tomorrow he must die My name is Fritz." The comic books we read during the war always pitted the superheroes against the "Nazis" and "Japs" and I wanted to help in the effort. I decided that if Billy Batson could turn into Captain Marvel by simply shouting Shazam, so could I. And so, after making a cape out of a red towel and tying it around my neck, I jumped out of the window yelling Shazam. Fortunately, I lived on the first floor and only sustained a scraped knee and a bad case of disillusionment. (For my 70'h birthday, my brother found a card that commemorated the superhero phase of my life; it showed an elderly Superman standing on a ledge, ready to fly, but wondering "now where is it I'm supposed to be flying?") 14 EFTA01090986 4.2.12 WC: 191694 If I could help our war effort by turning myself into a superhero, at least I could look out for German spies on our beaches. When I was four years old, German spies landed on Long Island in a submarine. Although they were quickly captured, there were rumors of other planned landings. And so over the next few summers, which my family spent in a rented room near Rockaway Beach, a local police officer paid us kids a penny a day to be on the lookout for "Kraud Subs." We took our job very seriously. I recall my grandmother Ringel (my mother's mother), who was recovering from a heart attack, taking me to a rehabilitation home in Lakewood, New Jersey, where several wounded or shell- shocked soldiers were also being rehabilitated and listening to their scary combat stories. Then I remember, quite vividly, both VE (Victory in Europe) and VJ (Victory over Japan) days. There was dancing in the streets, block parties and prayerful celebrations. Our soldiers, including several of my uncles, were coming home. (My father received a medical deferment because he had an ulcer, which my mother said was caused by my bad behavior.) We weren't told of any Holocaust or Shoah—those words were not even in our vocabulary—just that we had lost many relatives in Europe to the brutal Nazis and Hitler ("Yemach Sh'mo—may his name be erased from memory). We cheered Hitler's death, which according to a Jewish joke of the time, we knew would occur on a Jewish holiday—because whatever day he died would be a Jewish holiday! A few weeks earlier, we cried over Roosevelt's passing, which I heard of while listening to the radio and broke the news to my grandmother Ringel, who was taking care of me. She refused to believe it, until she herself heard it on the radio. Then she cried. Roosevelt (which she pronounced like "Rosenfeld") was the hero of our neighborhood (and other Jewish neighborhoods). A magazine photo of him hung in our home. The "greenies" (recent immigrants, "greenhorn?) who moved to Boro Park from the displaced person camps never talked out what had happened "over there." The tattooed numbers on their arms remained unexplained, though we knew they were the dark reminders of terrible events. Among my other early memories was Israel's struggle for independence and statehood, just a few years after the war. My family members were religious Zionists ("Misrachi Zionists"). We had a blue and white Jewish National Fund "pushka" (charity box) in our homes, and every time we made a phone call, we were supposed to deposit a penny. We sang the "Jewish National Anthem" (Hatikvah) in school assemblies. I still remember its original words, before Israel became a state: "Lashuv L'Eretz Avosainv" ("to return to the land of our ancestors"). One particular incident remains a powerful and painful memory. My mother had a friend from the neighborhood named Mrs. Perlestein, whose son Moshe went off to fight in Israel's War of Independence. There was a big party to celebrate his leaving. Several months later, I saw my mother crying hysterically. Moshe had been killed, along with 34 other Jewish soldiers and civilians, trying to bring supplies to a Jewish outpost near Jerusalem. My mother kept sobbing, "She was in the movies, when her son was killed. She was in the movies." Israel's war had come home to Boro Park. It had been brought into our own home. Everyone in the neighborhood knew Moshe and his parents. He had attended my elementary school, played stickball on my block and was a local hero. It was a shared tragedy and Moshe's death- 15 EFTA01090987 4.2.12 WC: 191694 combined with my mother's reaction to it—had a profound and lasting effect on my 9 year old psyche. My friends and I formed a "club"—really just a group of kids who played ball together. We named it "The Palmach"—after the Israeli strike force that was helping to win the war. We memorized the Palmach Anthem "Rishonin, Tamid Anachnu Tamid, Anu, Anu Hapalmach." ("We are always the first, we are the Palmach"). Recently, I spoke to a Jewish group in Los Angeles and among the guests were Vidal Sassoon (the style master) and David Steinberg (the comedian). Steinberg mentioned to me that when Sassoon was a young man, he had volunteered to fight for the Palmach (If you think that seems unlikely, consider that "Dr. Ruth" Westheimer served as a sniper in the same war). I challenged Sassoon to sing the Palmach Anthem and before you knew it, Sassoon and I were loudly belting out the Hebrew words to the amusement of the other surprised guests. Israel declared statehood in May of 1948, when I was nine and a half years old. Following its bold declaration that after 2,000 years of exile, there arose a Jewish state in the Land of Israel, (supported by the United Nations, the United States, the Soviet Union and most western nations), the nascent state was attacked by the armies of the surrounding Arab countries. That summer I went to a Hebrew speaking Zionist summer camp called "Massad." During my summer at Camp Massad (where the counselor of an adjoining bunk was a young Noam Chomsky, then a fervent left-wing Zionist) we heard daily announcements over the loudspeaker regarding the War of Independence. We sang Israeli songs, danced the hora and played sports using Hebrew words (a "strike" was a "Shkeya," a "ball" a "kadur".) The announcement I remember most vividly was "Hatinok Rut met hayom"—the "babe" Ruth died today. But I also remember several announcements regarding the death or wounding of Israelis who were related to the people in the camp. One out of every hundred Israeli men, women and children were killed—some in cold blood, after surrendering—while defending their new state. Many of those killed had managed to survive the Holocaust. We also learned of Stalin's campaign against Jewish writers, politicians and Zionists. After the end of the war, Stalin became the new Hitler as we read about show trials, pogroms and executions of Jews. We hated communism almost as much as we hated fascism. These early memories—relating to the America's war against Nazism, Israel's War of Independence, and Stalin's war against the Jews—contributed significantly to my emerging ideology and world views. I grew up in a home with few books, little music, no art, no secular culture and no intellectualism. My parents were smart but had no time or patience for these "luxuries." Our home was modest--the ground floor of a two and half family house. (The finished basement was rented to my cousin and her new husband). Our apartment had two small bedrooms, the smaller of which I shared with my brother. We ate in the kitchen. The living room, which had the mandatory couch covered with a plastic protector, was reserved for special guests (who were rare). The tiny bathroom was shared by the four of us. The foyer doubled as a dining area for Friday night and Shabbat meals. The total area was certainly under square feet. But we had an outside—and what an outside it was! In the front there was a small garden and a stoop. In the 16 EFTA01090988 4.2.12 WC: 191694 rear there was a tiny back porch, a yard and a garage. Since we had no car, we rented the garage to another cousin who used it to store the toys he sold wholesale. We were not poor. We always had food. But we couldn't afford any luxuries, such as restaurants. We passed down clothing from generation to generation and ate a lot of "leftovers". (Remember the comedian who said "we always ate leftovers—nobody has ever found the "original" meal.) My mother has always said we were "comfortable." (The same comedian told about the Jewish man who was hit by a car, and was laying on the ground; when the ambulance attendant asked him "are you comfortable," he replied, "I make a living.") The center of our home was the stoop in front of the house. We sat on it, played stoop ball on it, jumped from it and slid down the smooth slides on each side of it. It was like a personal playground. On nice days, everyone was outside, especially before the advent of television. We even listened to the radio--Brooklyn Dodger baseball games, the Lone Ranger, "Can You Top This?," "The Shadow," "Captain Midnight," and "The Arthur Godfrey Show"--while sitting on the stoop, with the radio connected to an inside socket by a long, frayed extension cord. We ate lunch on the stoop on days off from school, had our milk and cookies on the stoop when we got back from school, traded jokes, and even did our homework on the stoop. Mostly, we just sat on the stoop and talked among ourselves and to passing neighbors, who knew where to find us. In those days, nobody called ahead—phone calls were expensive. They just dropped by. In front of the stoop was what we called "the gutter." (Today it is referred to as "the street.") The gutter was part of our playground since cars rarely drove down our street. We played punch ball in the gutter, stickball in the driveway and basketball in front of the garage--shooting at a rim screwed to an old ping pong table that was secured to the roof of the garage by a couple of two by fours. We had no room to play indoors, so we had to use the areas around the house as our play area. Our house became the magnet for my friends because we had a stoop, a hoop and an area in front of our stoop with few trees to hinder the punched ball. (A ball that hit a tree was called a "hindoo"—probably a corruption of "hinder.") The stereotype of the Brooklyn Jewish home during the immediate post WWII era was one filled with great books, classical music, beautiful art prints and intellectual parents forcing knowledge into their upwardly mobile male children aspiring to become doctors, teachers, lawyers and businessmen. (The daughters were also taught to be upwardly mobile by marrying the doctors, etc.) My home could not have been more different--at least externally. The living room book shelves were filled with inexpensive knickknacks (chachkas). The only books were a faux leather yellow dictionary that my parents got for free by subscribing to "Coronet Magazine." When I was in college, they briefly subscribed to the Reader's Digest Condensed Books. There was, of course, a "Chumash" (Hebrew bible) and half dozen prayer books (siddurs and machsers). I do 17 EFTA01090989 4.2.12 WC: 191694 not recall seeing my parents read anything but newspapers (The New York Post), until I went to college. They were just too busy making a living--both parents worked--and keeping house. There were no book stores in Boro Park, expect for a small used book shop that smelled old and seemed to specialize in subversive books. The owner, who smelled like his mildewed books, looked like Trotsky, who he was said to admire. We were warned to stay away, lest we be put on some "list" of young subversives. My parents, especially my mother, were terrified about "lists" and "records." This was, after all, the age of "blacklists," "redchanels," and other colored compilations that kept anyone on them from getting a job. "They will put you on a list," my mother would warn. Or "it will go on your permanent record." When I was 13 or 14, I actually did something that may have gotten me on a list. It was during the height of the McCarthy period, shortly after Julius and Ethel Rosenberg had been sentenced to death. A Rosenberg relative was accosting people getting off the train, asking them to sign a petition to save the Rosenbergs' lives. I read the petition and it made sense to me, so I signed it. A nosy neighbor observed the transaction and duly reported it to my mother. She was convinced that my life was over, my career was ruined and that my willingness to sign a communist-inspired petition would become part of my permanent record. (Was there ever really a permanent record? It was certainly drummed into me for years that such a paper existed. I'd love to find mine and see what's in it.)10 My mother decided that I had to be taught a lesson. She told my father the story. I could see that my father was proud of what I had done, but my mother told him to slap me. Ever obedient, he did, causing him more pain than me. In addition to the "subversive" book store, we had a library that was also tiny and somewhat decrepit, but when I was nearing the end of high school, a new, spacious library opened about half a mile away. We went there every Friday afternoon--for two reasons. First, that's where the girls were on Friday afternoon. And second, we could take out up to four books and keep them for a month. The two reasons merged when Artie Edelman realized that we could impress the girls by taking out serious books. Up until that time my reading of serious literature had been limited to Classic Comics. Don't laugh! Classic Comics were marvelous. Not only could we read about the adventures of Ivanhoe, we could see what he looked like! My first erotic desires were aroused by the illustration of the dark-haired "Jewess" Rebecca. (I can still picture her and have searched for a copy of the Classic Comic at flea markets from coast to coast to relive my unrequited adolescent lust). I recently came across the Classic Comic of Crime and Punishment. Having read three translations of the great work of Dostoyevsky, I was amazed at how faithful the comic was to the tone, atmosphere and even words of the original. I tried to give it to my granddaughter who was I° Now there really are "permanent records." They're called Facebook, Twiner and the Internet. 18 EFTA01090990 4.2.12 WC: 191694 reading the book for class, but she politely turned down the offer, with a slight air of condescension that one gratefully accepts only from a grandchild. The first real books I actually read were several to which I had been introduced by the Classic Comics: The Count of Monte Christo, The Red Badge of Courage; Moby Dick; and a Connecticut Yankee in King Arthur's Court. During my senior year in high school, I became a voracious reader, to the disdain of some family members. My Uncle Hedgie (a nickname for Harry) would berate me for sitting around the house reading, when I could be working or playing sports. "Be a man," he would demand. "Get off your ass." But I would stay in my tiny room, with my Webcote tape recorder playing classical music I had recorded off WQXR, the New York Times classical music station, or off a record I borrowed from the library and recorded from my friend Artie's turntable. I also bought a used copy of the Encyclopedia Americana, whose twenty plus volumes filled the hitherto empty shelves in our living room. My friend Norman Sohn had found an old book store in Manhattan that sold used Encyclopedias, and the Americana cost only $75, as contrasted with the Britannica, which was $200. During my early years, all we had was a small plastic radio that lived in the kitchen, unless it was moved near the stoop. When I was 10 years old, we bought a ten inch TV "console" that included a 78 phonograph player that opened at the top. But my mother had situated her "good" lamp on the top of the console, so I couldn't get access to the turntable. I saved up, and with my Bar Mitzvah money, I bought a humongous webcore reel to reel tape recorder, which must have been a foot cubed. I could barely lift it, and the tape often tangled or split, but it was better than the wire recorder technology that it replaced. I loved classical music, especially opera and choral music. As an adolescent I had sung alto in the local synagogue choir and had a fairly good voice. I was "fairly" good--but not very good-- at lots of things in addition to singing: athletics, acting, joke telling and getting dates with girls. I was very good at only one thing: debating. And I was equally bad at one thing: school. My passion for music took me to the Metropolitan Opera House, where for 50 cents, a student could get a seat with a table and a lamp if he came with a score of the opera. We would borrow the score from the library, take a train to Times Square and listen to Richard Tucker, Robert Merrill, Jan Pierce and Roberta Peters sing Carman, La Boheme and La Traviata. (We were forbidden to listen to Wagner, because he was an anti-Semite, who admired). I also became passionate about art. All kinds of art from Egyptian and Roman Sculpture to Picasso's Guemica and Rodan's Thinker. There were no art poster or reproductions in our home. The walls had mirrors (to make the apartment seem bigger) and some family photos. But there were free museums all around us, and the library had art books--with pictures of naked women! I loved Goya's nude, especially when contrasted with the clothed version of La Gioconda who I could imagine undressing just for me! 19 EFTA01090991 4.2.12 WC: 191694 The girls loved to be asked on a museum date, and we loved to ask because it was free and it showed them that we had "culture" (pronounced "culchah"). To this day I have no idea how I fell in love with literature, music and art. They are my passions, as they have been since I was old enough to appreciate these "luxuries"--inexpensive as they were to us--that my parents couldn't afford. I was never exposed to classical music or art, even in school where the music teacher taught us "exotic" songs like "finicula, funicula," American songs by Stephen Foster, and an assortment of religious and Zionist Hebrew songs. (Zum Gali, Gali, Gali; Tsena, Tsena; Hayveynu Shalom Alechem.) Our art teachers tried to teach us to draw "useful" objects, like cars, trains and horses. My friends' homes were as barren of culture as mine with the exception of Artie Edelman and Bernie Beck, whose parents were better educated and more cultured than mine. I must have picked up some appreciation of music and art from them. When I went to sleep away camp, especially as a junior counselor, I also came in contact with music and art through the "rich" Manhattan kids who had attended the expensive camp as paying campers and were now junior counselors. Several of them, who became my friends, had been exposed to culture through their more sophisticated Jewish parents. None of these peripheral contacts with culture fully explains my transition from a home barren of books, records and posters, to my home as an adult that is filled with books, music, paintings, sculpture and historical objects." Nor does it explain why none of my three children, who were brought up in my home, have any real passion for the classical arts. They are by no means uncultured. They love popular music, films, current fiction, theater and gourmet food. But they don't have the same passion for classical music or fine art that I have. By mentioning this difference, I don't mean to be a snob, but for someone who strongly believes in the power of nurture, exposure and experience, this generational skip poses a dilemma. Reaction is, of course, one sort of experience, and my passion may well have been a reaction to my parents, as my children' lack of passion for what moves me so deeply may be a reaction to their parents. So be it. The family values that shape my upbringing focused on modem Orthodox Judaism, religious Zionism, political liberalism of the sort represented by FDR, Anti-Nazism, Anti-Communism, opposition to all kinds of discrimination, support for freedom of speech, a hatred of McCarthyism, opposition to the death penalty, a commitment to self defense and defense of family and community, a strong sense of patriotism, and a desire to be as truly American as was consistent with not assimilating and losing our traditions and heritage. My father, who was a physically strong but rather meek man, wanted me to be "a tough Jew" who always "fought back." He urged me to never let "them" get away with "it." By them he " Finding Jefferson 20 EFTA01090992 4.2.12 WC: 191694 meant anti-Semites, and by it, he meant pushing Jews around. He taught me to box and wrestle and insisted that I never "tattle" on my friends, regardless of the consequences to me. One of my father's brother's was a man named Yitzchak, who we called Itchie. It had nothing to do with any skin condition. One day my Uncle Itchie took me to a Brooklyn Dodger baseball game that got rained out half way through. We ran to the train station only to find no one tending the token booth. My uncle had one token and so the two of us squeezed through the turnstile on his one token. As soon as we got home he took a dime, put it in an envelope and sent it to the transit authority, apologizing profusely for temporarily cheating them of their dime. A year later he did the same thing, but on a much larger scale. My Uncle Itchie stowed away on a ship headed for Palestine in order to participate in Israel's struggle for statehood. He did not have enough money for passage, so he hid in a closet during the nearly month long trip, getting food from a friend who was paying his own way over. My Uncle then swam from the ship to shore, evading British authorities. After working for several months he then sent the full fare for the lowest class of service to the shipping company. Those were the values with which I was brought up. You do what you have to do, but then you pay your debts. Religion in my home was not a matter of faith or an accepted theology. To this day, I have no idea what my parents believed about the nature of God, the literal truth of the Bible, heaven and hell, or other issues so central to most religions. Ours was a religion of practice and rules-of required acts and omissions. A cartoon I once saw perfectly represented my parents approach to religion. It showed a father dragging his reluctant young son in the direction of the synagogue and saying: "Atheist, Shmathiest, I don't care—as long as you come to shul." Our Judaism was entirely rule bound. Before every activity, there was a required "brucha"—a formulistic blessing appropriate to the activity. "Baruch ata Adonoy"—"blessed be you our God"—followed by a reference to His creation: "who brings forth bread from the earth" or "wine from the grapes" or "fruit from the trees" or "produce from the ground." Then there was a generic brucha that covered everything not included among the specific blessing: "Sheh-hakol Nihiye B'Dvaroh." My grandmother Ringel, who was the religious enforcer in the family, would ask demandingly, if she saw me drinking a glass of water, "Did you make a "shakel," referring to the previously mentioned generic blessing. My grandmother, who spoke no Hebrew, probably had no idea of the literal meaning of the blessing, but she knew—and insisted that I knew—you had to recite it (even just mumble it) before you drank the water. There were rules for everything. If you accidentally used a "milichdika" (dairy) fork on a "flayshidika" (meat) item, the offending (or offended) item had to be buried in the earth for exactly seven days. That restored its kosher quality by "kashering" it. After eating meat, we had to wait precisely 6 hours before eating dairy—after eating dairy, however, you had to wait only half an hour to eat meat, but a full hour if the "dairy" meal contained fish. Not a minute less. When my parents told me the rules of swimming after eating—wait two hours after a heavy meal, one hour after a light meal, half an hour after a piece of fruit and 15 minutes after a Hershey bar—I thought these were religious rules, because they paralleled the rules about how 21 EFTA01090993 4.2.12 WC: 191694 long you had to wait between meat and dairy. (I later learned that the swimming rules were based neither on religion, nor upon science, but rather on questionable "folk wisdom.") From my earlier days, I accepted the highly technical, rule-oriented religious obligations imposed on me by my parents and grandparents. It was a lot easier for me to obey rules—even if I didn't understand the reasons, if any, behind them—than to accept a theology that was always somewhat alien to my rational mindset. (And I suspect, to my parents, if they even bothered to think about it.) Everyone in the almost entire Jewish neighborhood (at least everyone who was part of the modem Orthodox community) followed the rules. Few, I suspect, accepted the entire theological framework that included the literal truth of the bible, the resurrection of the dead, heaven and hell (which were not in the Jewish Bible) and the incorporeal nature of a single God. What we cared about was the precise ingredients in a candy bar (no lard or gelatin), the number of steps you could take if your yarmulkah fell off (more on this later), whether you could wear your house key as a tiepin to avoid the prohibition against carrying on the Sabbath, whether it was permissible to use an automatic timer—a "shabos clock"—to turn on the TV for a Saturday afternoon World Series game, or whether you could ride on an elevator on Shabos if it automatically stopped on every floor and required no pressing of buttons. The rabbis answered these questions for us, but they didn't always agree. My mother had little patience with most of the local rabbis because her late father, who was not a rabbi, "knew so much more than they did," and always resolved religious disputes by accepting the approach that was "easiest" and most adaptive to the modem lifestyle. Even my grandmother knew more than these "phony rabbis," my mother would insist contemptuously. My mother always said, "Respect people, not titles." Then she was appalled when I showed disrespect for my frequently incompetent teachers! Most of the rules we were required to obey were negative ones: "Donts." Don't—eat unkosher, drive or work on Shabas, eat anything on fast days, marry a non-Jew, eat ice cream after a hot dog, wear leather on Yom Kippur, talk after washing your hands but before making a "motzie" and eating the challah. My grandmother—the enforcer—had a favorite Yiddish word: "metumished"—it is forbidden to do! She would shout it out in anticipation of any potential violation. If she saw you about to eat a Nabisco cookie, she would intone the M word. If she saw you putting a handkerchief in your pocket on Shabas, the word would ring in your ear. If you even thought about putting your yalmulkah in your pocket, you would hear the word. Once I began to whistle a tune. My musical effort was grated with a loud "metumished." "Why?" I implored. There's nothing in the Torah about whistling. "It is unJewish," my grandmother insisted, "The Goyim whistle, we don't." It's now more than 30 years, since Grandma Ringel died, but the M word still rings in my ears every time I indulge in a prohibited food or contemplate an un-Jewish activity (such as enjoying a Wagnerian opera). Freud called it the "superego." He must have had a Jewish grandmother too. Of course we tried to figure out ways around these prohibitions—half of Jewish law seems to be creating technical prohibitions, while the other half seems to be creating ways around them. Much like the Internal Revenue Code. No wonder so many Jews become lawyers and accountants. It's not in our DNA; it's in our religious training. 22 EFTA01090994 4.2.12 WC: 191694 A story from my earliest childhood illustrates the extraordinary hold that religion—really observance of religious obligations—held over all of us. A few months before my brother was born, my father was holding my hand on a busy street, while my mother was shopping. She had just bought me a new pair of high leather shoes—they went above my ankles. For some reason, I bolted away from my father and ran into the "gutter." My foot was run over by an 18 wheeler truck. It would have been much worse had my father not pulled me out from under the humongous vehicle. Fortunately, the new shoes saved my foot from being crushed, but several bones were broken and I was rushed to the nearest hospital, which was Catholic. My parents left me there overnight. At about 8:00PM one of the nurses called my mother and said that I was refusing to eat and demanding to go to Florida. My mother said, "He's never even heard of Florida." She was told to come to the hospital immediately. She saw me sitting in front of my tray of food refusing to eat and screaming, "Miami, Miami!" To the nurses, that referred to a city in southern Florida. My mother immediately understood that I was referring not to Miami, but to my "yami"—which was short for yamulka, the religious skullcap that every Jewish male must wear while eating. I refused to eat without my yami, even though I was only 3 years old. My response was automatic—programmed. As soon as my mother made a yamulka for me out of a handkerchief and placed it on my head, I ate all the food and asked for doubles (the Catholic hospital provided kosher food for Jewish patients.) I'm sure I mumbled the appropriate Bruchas for each item of food I imbibed. We learned these rules first at home and then in the Yeshiva—Jewish day school—that nearly everyone in the neighborhood attended. As is typical in Orthodox Jewish neighborhoods, there were two competing Yeshivas: One taught Yiddish, the other Hebrew. I started out in the Yiddish-speaking more traditional, school-named "Torahs Emes" (the Truthful Bible), where my grandma Ringel wanted me to go to learn the "Mamma Loshen"—the mother tongue. But after two years, my parents switched me to the Hebrew-speaking, more modern Yeshiva, named "Etz Chaim" (the Tree of Life), which I attended through 8'h grade, when I shifted to a Yeshiva high school until I finished 12'h grade. My Yeshiva education was a decidedly mixed blessing (both in the literal and figurative senses of that overworked phrase.) The hours were long: elementary school went from 8:30AM to 4:30PM; high school from 9:00AM to 6:10PM. We had only one full day off, Saturday, but it really wasn't a day off, since we spent much of it in the synagogue--9:00AM to noon and then afternoon and evening services, which varied in time depending on when it got dark (two stars had to be visible to the naked eye, or in the event there were clouds, "would have been" visible.) Friday was an early day, with school ending at about 1PM to allow us to prepare for the Sabbath. And Sunday was also a half day, though this compromise with secularism engendered grumbling from some of the old fashioned rabbis, who wanted us to spend the entire Christian day of rest in class. 23 EFTA01090995 4.2.12 WC: 191694 Mornings were generally devoted to religious subjects-Bible (Tanach) Talmud, (Gemarah), ritual rules (Shulchan Aruch,) and ethics (Pirkay Avos.) Afternoons were devoted to the usual secular subjects--math, science, history, English, French (for the smart kids who wanted to become doctors) or Spanish (for the rest of us), (no German or Latin), civics, gym, art, music appreciation--as well as "Jewish secular" subjects, such as Hebrew, Jewish history, Zionism and Jewish literature. Then there was debate, student government, basketball and other "extracurricular" activities. Lunch "hour", which was 35 minutes, separated the religious from the secular classes and was the only time we ever discussed the conflict between what we were taught in the morning, such as the creation story, and what we were taught in the afternoon, such as evolution and genetics. No attempt was made to reconcile Torah (scripture) and Madah (secular knowledge). They were simply distinct and entirely separate world views (or as my late colleague Steven Jay Gould put it in his always elegant choice of words, "separate magisteria"). We lived by the rule of separation between church and state, and for most of the students it raised no issue of cognitive dissonance. In the morning, they thought like rabbis; in the afternoon like scientists; and there was no need to reconcile. It was like being immersed in a good science fiction novel or film: one simply accepted the premises and everything else followed quite logically. For a few of us, that wasn't good enough. I recall vividly our efforts to find--or contrive-- common ground. For some, this quest took them to wonder whether the God of Genesis could have created evolution. For them there was an abiding faith that both religion and science could both be right. For me, the common ground was an abiding conviction that both could be wrong-- or at least incomplete as an explanation of how we came to be. I was skeptical of both religion and science. Genesis, though elegant and poetic, seemed too simple. But so did evolution--at least the way we were taught it. The apparent conflict between religion and science did not move me to search for reconciliation. It moved me to search for doubts, for holes (not black ones, but grey ones), for inconsistencies not between religion and science--that was too easy--but rather within religious doctrine and within scientific "truth." I loved hard questions. I hated the easy answers often given, with a smirk of self-satisfaction by my religious and secular teachers. The mission of our modern Orthodox Yeshiva was to integrate us into the mainstream of American life while preserving our commitment to modern Orthodox Judaism. "Torah" and "Madah" were the two themes. Torah, which literally means bible, represented the religious component. Madah, which literally means knowledge, represented the secular component. They were thought to be reconcilable, though little explicit effort was directed at reconciling the very different world views implicit in the relatively closed system of Orthodox Judaism and the openness that is required to obtain real secular knowledge. When it came to culture, however, there was actually very little conflict, because becoming good Americans—including immersing ourselves in mainstream American culture—was part of the mission of our schools. Of course I hated anything the teachers tried to imbue in us, because with a few exceptions, they taught by rote and memorization. Although I was good at memorization, I rebelled against the authoritarianism implicit in religious teaching. 24 EFTA01090996 4.2.12 WC: 191694 As much as I hated my teachers, they hated me even more. I loved conflict, doubt, questions, debates and uncertainty. I expressed these attitudes openly, often without being called on. I was repeatedly disciplined for my "poor attitude." My 6th grade report card, which I still have, graded me "unsatisfactory" in "deportment" and "getting along with others." I received grades of D in "effort," D in "conduct," D in "achievement," C in spelling, Din "respects the rights of others," D in "comprehension," C+ in geography and A in "speaks clearly." One teacher even gave me an "unsatisfactory" in "personal hygiene." My mother, who was meticulous about cleanliness and scrubbed me clean every day before school, complained. The teacher replied, "his body is clean, but his mind is dirty; he refuses to show respect to his rabbis." To be sure, I was a mediocre Yeshiva student--actually I exaggerate: I was slightly worse than mediocre, once having actually received a grade of "Bayn Ani Minus," which literally means "mediocre minus." I couldn't even quite make it to mediocrity. At least I had something to which to aspire! When I was in sixth grade, the school decided to administer IQ tests to all the students. The school called my mother and said that I had gotten one of the highest scores. At first the rabbi thought I had cheated, but when he was persuaded that in fact I had a high IQ he decided to put me in the A class. We had a track system and the grades were divided into the A, B and C classes. I had always been in the C class. My mother was worried about me having to compete with all those smart kids, so she persuaded the principal to compromise and put me in the B class, where I remained, getting C's until I graduated. I spent my four high school years in what was called "the garbage class," which focused more on discipline than learning. I had a well deserved reputation in both elementary and high school as a "bad kid". My grades were low (except on state-wide standardized tests called the "regents," which I always aced). My conduct, called "deportment," was terrible. I was always getting into trouble because of my pranks, because I "talked back" and was "fresh" to teachers, because I questioned everything, because I didn't show "respect," and because I was a "wise guy." This was the greatest gift-ok, I will even say "blessing"—of my Yeshiva education: To question everything and everyone. It was merely an unintended consequence of the Yeshiva method, and I was certainly not its only beneficiary or (according to the rabbis) its only failure. The Jewish characteristic of questioning is not a complete coincidence. It is a product of experiences, and surely the Yeshiva education--which juxtaposes religion and science with little explicit effort to reconcile these distinct approaches to the search for truth--is an element of these experiences, for at least some young Jews. It certainly was for me, and for that I will be eternally grateful. I also need to thank my local synagogue for helping me discover sex. To this day I am convinced that some higher authority built the benches at precisely the right height to introduce sexual feelings at precisely the right time. When Orthodox Jews pray, they shake back and forth while standing up. At a certain point in my life, the top of the bench in front of me, which had a curve on the top, was exactly parallel to my genitals while I stood in prayer. It was while shuckling back and forth in the synagogue that I experienced my first arousal. 25 EFTA01090997 4.2.12 WC: 191694 What then was my "take away" from Yeshiva? For me it has been a lifelong "belief' in the "certainty" of "doubt." For most of my classmates, the take away has been a lifelong belief in the certainty of certainty. Why the difference? Surely minor genetic disparities do not explain such a profound difference in world views. Nor does mere intelligence, since many of my "certain" classmates were brilliant. I think it was the environment underneath the roof of our homes. I came to Yeshiva ready to doubt. Although my parents were both strictly observant, relatively modem Orthodox Jews, they too were skeptics, especially my mother. Despite her lack of formal education and high culture, she was a cynic, always doubting, always questioning, though this became less apparent as she grew older and observed--to her chagrin--what she had actually transmitted to her children. She doubted while continuing to observe all the rituals. That was the traditional Jewish approach to learning and ritual—doubt all you want, but do! My brother and I started that way, but ultimately our doubts carried over into action--or more precisely inaction. We stopped observing in our mid 20s. My mother couldn't understand or accept that. "I don't care what you believe or don't believe," she would insist, "as long as you go to Shul, keep kosher and don't work (broadly defined to include driving, watching television or going to a ballgame) on Shabbas." That's all she asked of us. "Is that so much to ask!" When we started to break the rules, my mother began to doubt her doubting. Doubting was good as long as it didn't lead to breaking with the rituals--as it didn't in her case. Or so she believed, until she saw, with her own eyes, the wages of doubt, in her own children. This led her to doubt doubt and to embrace certainty. She would never completely abandon her doubting nature, but she no longer believed that doubt was cost-free. It had cost her to lose her own children to "excessive doubt" and the real sin of acting on one's doubt. I certainly don't mean to suggest that our mother "lost" us in any sense other than the observance of ritual, but that was critically important to her. Although my brother and I maintained an extremely close relationship until her death at age 95--we spoke to her almost every day--it was never quite the same once we left the "club" and followed our own rules as it pertained to Jewish practices. My mother even questioned her decision to "let me go to Brooklyn College." She insisted that I would have "turned out better" if I had gone to Yeshiva University, but I didn't have that option, because Yeshiva turned me down. (More on that later). My mother may not have been happy with the way I used the doubt she instilled in me, but I have been ecstatic. It has become the most important quality in my life--and the most significant ingredient in whatever success I may have achieved. It certainly played an important role in my decision to become a lawyer defending freedom of speech, accused criminals, and other unpopular causes. (More on that later.) So thank you Mom! And even thank you Yeshiva Etz Chaim and Yeshiva University High School for provoking me to be a skeptic, a doubter and an agnostic about life. (And thank you Yeshiva University for turning me down!) My mother influenced me in many ways with her skepticism, not the least of which was when she repeatedly had to defend me for my conduct at school. I remember one incident in particular. I was playing "Ring A Levio" in the schoolyard on any icy winter day and chasing a classmate named Victor Botnick. He slipped and his leg got stuck under the gate and he broke it while trying to stand up. I was accused of deliberately breaking his leg and called into the 26 EFTA01090998 4.2.12 WC: 191694 principal's office. My mother immediately came to school and spoke to me privately. I told her the story and assured her that I would never break my friend Victor's leg purposely. My mother went to the principal's office with me and served as my defense attorney, making charts and diagrams that proved that I could not have possibly broken his leg deliberately and that he caused it to break while trying to stand up with his foot still stuck under the gate. I was acquitted, though the Principal still had his suspicions. This was my first experience with the adversarial process and with a defense attorney. My mother, of course, was not a lawyer, having attended college for only part of one semester. But she was my Perry Mason, and an important inspiration for why I decided to become a defense lawyer. For me the presumption of innocence was not a theory. I knew I was innocent, yet the principal presumed me guilty. Only my mother's effective advocacy kept me from being suspended—at least this time. My decision to become a criminal lawyer was certainly not influenced by any exposure to real crime. I lived in a neighborhood where we never locked our doors and where violent crime was unheard of. There were of course street fights, in which I frequently participated - - more often as victim than victor - - but the Borough Park section of Brooklyn was a safe neighborhood. [I guess that's why my family was so mystified when my brother failed to return home from a shopping errand immediately after the end of the Sabbath, on Saturday night. My mother had sent him to the store to buy a bottle of milk; it was usually a fifteen-minute errand. An hour passed and there was no sign of Nathan, who we called, and I still call, Tully. I thought he was kidnapped and started to empty my piggy bank to gather the ransom. It turned out that he was in fact kidnapped, but only temporarily and not for any ransom. On his way to the store a rabbi grabbed him and pulled him into the little synagogue in his home. It seems that they only had nine Jewish males and they could not end the Sabbath without a tenth to form a minyan for the closing prayer. My brother was therefore grabbed off the street and made to participate in the service so that they could complete the prayer and the others could go out and do their shopping. It was as close as my family ever came to experiencing a crime, at least while I was growing up.] [possible omission] Several years after I moved out of the house, my parents' apartment was burglarized. All the burglars took were Jewish ritual items, such as the Hanukah Menorah, the Sabbath candles, etc. When my mother called to tell me about the burglary, I responded, "See, Jews can be burglars too." Without a moment's hesitation my mother rebuked me, "They weren't Jews, they were Israelis." For my mother, real Jews, who in her world were all orthodox, and Israelis, who tended to be secular, were completely different breeds. My father, though rarely at home, influenced me as well. He had a small store on the lower east side, where he sold wholesale during the week and retail on Sunday (he was of course closed on Saturday). I would sometimes help him on Sunday after my school finished at 1:00 pm. One Sunday he got a ticket for violating the Sunday closing law. I went to court with him a few days later and the presiding judge was man named Hyman Barshay. It was my first experience in a real court. He asked my father why he was open on Sunday and my father responded that he had to stay closed on Saturday because he was an Orthodox Jew and he couldn't afford to be closed for two days. "Did you go to Schul on Saturday?" the judge asked. My father replied, "Of course." The judge challenged him, asking, "Then what was the Torah portion of the week?" 27 EFTA01090999 4.2.12 WC: 191694 When my father responded correctly, the judge tore up the ticket. If he had gotten the answer wrong, the judge would've doubled the fine. So much for separation between church and state. This was not my only experience with the First Amendment. Shortly thereafter, my friends and I decided to form a social athletic club - - a euphemism for a Jewish gang, but without the rough stuff. We named our club The Shields and we designed our own jackets, which we got wholesale, since the father of one of our members owned an athletic store. His name was "Snot" Chaitman. I leave the source of that nickname to your imagination. Whitey, the leader of our club, decided that we should have something sexy and not at all Jewish looking (whatever that meant). Accordingly, the colors we selected were chartreuse and black. We really wanted to look like hoods, despite our generally wimpy nature. Our yeshiva immediately banned the jackets as too tough looking and not consistent with the Jewish values of the school. Fortunately one of our club members lived across the street from the school, and so we would go to school wearing normal approved clothes, then immediately upon leaving school go to our friend's house and change into our costumes. We felt like super heroes, but I was no longer jumping out of windows. Boro Park in the 1940s and 50s was not only a religious neighborhood; it was a funny neighborhood. Two houses away from me lived Jackie Mason. Around the corner was Eliot Gould (ne Goldstein). A few blocks away, in my uncle's building, lived Buddy Hackett. Woody Allen grew up in a nearby neighborhood, as did Larry David. Joke telling among my friends was a competitive sport. (In those days there were new jokes because our parents and grandparents didn't tell jokes—at least not to us kids, but older brothers were a good source.) We didn't know anybody who actually made up a joke. Every rendition would begin with, "I heard a good joke," or "have you heard the one about—the rabbi and the farmer's daughter, or the rabbi, the priest and the minister?" (The rabbi always came out on top!) The first joke I remember hearing (and telling) involved a put-down of communist Russia. It was about the time the Russians wanted to one-up the Americans by ordering a large number of condoms 14 inches long. The Americans sent them the 14 inch condoms—marked "medium." The jokes improved as we got older! Our favorite radio show was "Can you top this," which involved professional comics who would try to top each other and listeners who submitted jokes. A "laugh meter" determined whose joke was funniest. There were cash prizes for listeners who topped the pros. The jokes told by panelists, such as Harry Hershfield and Joe Laurie, Jr., had to be spontaneous and related to the subject of the original joke. The panelists boasted that they knew 15,000 jokes among them. We would sit around the radio and try to top the pros. We would also send in our own jokes, which were never chosen. But we often thought our jokes were as good or better than theirs. Living in a funny neighborhood at a funny time and listening to funny shows served me well. (My wife thinks too well, since I often use humor to avoid discussing serious issues.) I use humor in the courtroom, in the classroom and in every other aspect of my life. A highlight of my 28 EFTA01091000 4.2.12 WC: 191694 current summers is sitting on the porch of the Chilmark store on Martha's Vineyard and playing a contemporary version of "Can you top this?" with my friend Harold Ramis, who knows more than 15,000 Jewish jokes! Sometimes Larry David, Ted Danson, Seth Myers or Tony Shalub drop by. I never "top" Harold, but I hold my own. I learned many of my jokes in the Catskill Mountains where I worked as a busboy over the Jewish holidays. The only hotel that would hire me was the King David. It was a run-down place that conveniently burned to the ground right after the Jewish holidays. It was across the road from The Posh Brown's, made famous by Jerry Lewis, who frequently performed there. Nearby were Grossingers, Concord, Kutchers, President, Nevelle, Tamarak, Pine View and Pioneer. I played and watched basketball, played "Simon Says" with Lou Goldstein, who claimed to have invented the game, and snuck into the shows that featured Alan King, Freddie Roman, Sheky Green and Red Burrons. It was "Can you top this?" on steroids. Plus, there were girls. Although we were orthodox Jews, none of us abided by the orthodox rules regulating sexuality. We were as anxious to make out as anyone; the problem was we had no one to make out with because the girls all had to be beyond reproach. The closest we ever came to a good squeeze was when we went to the Cyclone at Coney Island. We were all scared, but figured the girls would be more frightened and would cuddle up to us during the dangerous ride. Sometimes we tried to pick up non-Jewish girls at Coney Island, because we heard they had wild reputations (meaning we could get to "first base"). We wore our basketball jackets, which said "Talmudical" - - our school was Brooklyn Talmudical Academy. (The full name was Rabbi Isaac Elchanan Theological Seminary and Talmudical Academy, Yeshiva University High School, Brooklyn Branch, Boys Division. Imagine the locomotive cheer!) The colors for these jackets were selected by the school. Not surprisingly there were blue and white - -very Jewish. "Talmudical" was not a particularly good visual for pick-ups, so we turned our jackets inside out. The raincoat side was gray and read "B.T.A.", which we told the girls stood for "Brooklyn Technical Aviation." It still didn't work. In our senior year we discovered that a train ride to Manhattan and a bus ride to Union City would get us to the burlesque house where at least we could see what we could not touch. One day a group of us went, and we took along one particularly orthodox classmate who insisted on wearing his yamulka during the show. The rest of us had tucked ours into our pockets. Of course we sat in the front row, to get the best view. When a drunken guy in the back started screaming "Take it off, Take it off," Irving was sure he was referring to his yarmulke. He stood and confronted the guy shouting: "I will not take it off. I am proud of my yarmulke." To this day, whenever I see Irving, I always yell, "Take it off! Take it off!" He'll never live it down. The yeshiva I went to was strongly Zionist, supporting Israel's struggle for independence, but the rabbis hated David Ben Gurion, Israel's first leader. Ben Gurion was an atheist who believed that Israel should be a secular socialist democracy. My rabbis wanted it to be an orthodox Jewish theocracy. Thank God Ben Gurion won, though he ultimately reached an uncomfortable compromise with the rabbis. (Recently, I acquired a letter Ben Gurion wrote in 1963, stating that the religious and secular elements of Israeli society must be sensitive to each other's beliefs: 29 EFTA01091001 4.2.12 WC: 191694 "There is no doubt that the feelings of a religious man are to be respected, but religious people must respect the freedom of choice of a fellow man, and no coercion is to be exercised for or against religious conduct." These words could have been spoken by Jefferson or Madison.) One day, David Ben Gurion was giving a speech in Central Park to a vast audience of supporters. My friend Tsvi Groner, who subsequently made "Aliya" to Israel, and I decided to cut school to listen to Ben Gurion. When we were caught being out of school we had to make up a lie. We told the rabbis that we'd gone to a Brooklyn Dodgers baseball game. For that we received far less of a punishment than we would have had we admitted going to hear the atheist Ben Gurion. My mother was summoned to my high school so often that some of the students thought she worked in the principal's office. One day, after I had done something especially egregious—I threw a "dummy" dressed like me off the roof of the building, after threatening to "jump off the roof" when my teacher threw me out of the class12—the principal demanded of my mother "what are we going to do with your son?" Without any hesitation my mother responded, "I don't know what you're going to do, but as for me, I'm going to keep him." The principal threatened to send me to another school called "R.J.J.," which we always said, stood for "Reformatory for Jewish Juveniles," because some of the tougher kids—the disciplinary "problems"—went there. (The initials really stood for "Rabbi Jacob Joseph"). Ultimately I was suspended for a few weeks on the ground of "lack of respect" and spent them at the local library and museum, where I learned considerably more than I was learning in my classes. It was not my first suspension, nor would it be my last. Nor would it be my first encounter with my principal, Rabbi Zuroff, who in my senior year, when he was finally resigned to my remaining in the school until graduation, called me to his office for some career advice. This is what he told me: "You have a good mouth, but not much of a `Yiddisher Kup,"' which means 'Jewish head' or brain, as distinguished from a Goyisher (non-Jewish) Kup"-a slightly bigoted concept suggesting that Jews are endowed with special mental qualities or capacities.13 He continued: "You should do something where you use your mouth, not your brains." I asked him what he would suggest. He replied: "You should become either a lawyer, or a Conservative Rabbi." (He was an Orthodox Rabbi who held his Conservative colleagues in utter contempt.) To make sure the latter part of his advice was followed, he urged Yeshiva University, which trained Orthodox Rabbis, to reject me, which it did. My classmates as well valued my verbal over my intellectual skills. The first draft of my high school yearbook description said that I have "a mouth of Webster, but a head of clay." (My mother made them change it!) 12 For a fuller account of this episode, see The Best Defense at ff 13 The classic Jewish joke reflecting this xenophelia is about Moishe who says to his wife, "It's too hard to be a Jew. I'm converting to Christianity." He goes to church, converts and goes home to sleep. Next morning his wife wakes up and sees Moishe wearing his Talit (Jewish prayer shawl) while dawning (praying in Hebrew). "What are you doing Moishe," she asks, "You're a Christian." Moishe replies, "I forgot! Goyisher Kup." 30 EFTA01091002 4.2.12 WC: 191694 Rabbi Zuroff's career advice was actually better than the choices given to me by the New York City Department of Employment, to which my mother turned in desperation. After reviewing my high school record, and administering an aptitude test, the counselor told my mother that I could aspire to work in an advertising firm or a "funeral parlor." My mother asked whether I could be a lawyer, to which the counselor replied, "Mrs. Dershowitz, I'm afraid you have to go to college to be a lawyer, and your boy just isn't college material." Many years later, following a talk I gave at a temple in Los Angeles, a man about my age came up to me and asked whether I was "related to a guy I went to high school with named Avi Dershowitz." "Avi" was the Hebrew nick-name by which I was known all through high school. I began to use my "real" name, Alan, when I started Brooklyn College, though my old friends and family still call me Avi. I decided to put the questioner on, so I said, "yeah, yeah, we are related." "What ever happened to Avi?" he asked. I continued the put on: "We don't talk about him in our family. He came to no good." Showing no surprise, my questioner replied: "I knew he would come to no good. He was such a bad kid in high school." I'm sure some of my critics would agree that I came to "no good," but at least by objective standards I've exceeded the expectations my high school teachers and principal had for me. None of them thought I was "college material." This assessment was recently confirmed by a classmate who I encountered in Florida. We had been friends during our first two years in high school and then, quite suddenly, his parents moved to a different city and I had no contact with him for nearly 60 years. When we first spoke on the phone, I asked him what he had done after leaving Talmudical Academy in Brooklyn. He told me had had moved away and then come back to New York City for college. When I told him that I had attended Brooklyn College and then law school, he seemed surprised. I suspect that he too, along with others of my classmates, didn't think I was "college material." The only successful part of my high school career, other than my debating, was making the varsity basketball team. Though I was never a starter (except when one or two of the starters were sick), I did manage to accompany my team to Madison Square Garden for the inter-Yeshiva finals. I shared a locker with Dolph Schayes, (who, you know was born before 1933, since after that no Jewish boy was ever again named Adolph) whose team, the Syracuse Nationals, was playing against the N.Y. Knicks in the main event to which our game was a preliminary. One of the people on the opposing team was a kid even shorter than me named Ralph Lipschitz. He eventually decided that to make it in the fashion business he would have to change his name. So Lipschitz became Lauren. 31 EFTA01091003 4.2.12 WC: 191694 All of the teams we played against in our league were Jewish high schools, but some were much more orthodox than we were. We did not wear yarmulkes when we played, but some of our opponents did. They believed that it was improper to walk more than four steps without wearing a yarmulke. In one game, one of my opponents stole a ball from me and had a open lane to the basket. He was very fast and so I had no hope of catching him. Instead I grabbed the yarmulke off the top of his head and threw it on the floor and yelled, "You can't go more than four steps." He stopped, shot the ball and missed. I got a technical foul, which was well deserved. If the Anti-Defamation League had heard about my actions it might well have qualified as an anti- Semitic incident, but all's fair in love and basketball. Basketball was not our only passion. We all loved baseball, especially since Ebbets Field was located four blocks from our high school. The morning recess generally coincided with the time when several of the players walked past our school to the stadium. Remember that these players were working stiffs being paid low salaries and generally taking public transportation to and from the games. We would wait for them to pass school and walk with them to Ebbets Field. I got to know several of the players, including Carl Furillo, Pee Wee Reese, Gene Hermansky, Gil Hodges and Ralph Branca (whose mother, it now turns out, was Jewish!). Jackie Robinson, who was our real hero, generally was driven to the stadium for safety reasons. I will never forget Jackie Robinson's first game with the Dodgers. We persuaded our European-born rabbi to make a special blessing for him, without his knowing whom he was blessing, since he never would have approved blessing a baseball player. We made up a Hebrew name for Jackie Robinson, calling him Yakov (Jacob) Gnov (Rob) buh (in) Ben (son). When he got his first hit, we were convinced the blessing had worked. I had a spiral notebook in which I had collected autographs of every single Brooklyn Dodger who played during my high school years. As soon as I moved out of the house my mother tossed it in the garbage pail, along with my signed baseball cards and comic book collection. I could've been a millionaire.... When the Dodgers were not at home, we would play softball in the parking lot adjacent to Ebbets Field. One day we made headlines when one of my classmates hit a homerun from the parking lot over the Ebbets Field wall. The Brooklyn Eagle reported that it was the first time anyone had hit a home run into rather than out of the ballpark. It's not surprising that my high school memories are long on sports and short on academics, because my academic performance was abysmal. In my senior semester my first half grades were as follows (I still have the report card): English 80; Math 60 (F); Hebrew 65; History 65; Physics 60 (F). With two failing grades, I couldn't graduate, and so by the end of the last semester, I raised my physics grade to the minimum passing number of 65; my math grade to 75; and my history grade to 70 (the others remained the same). Yet despite my poor grades, I still remember much of what the teachers taught, often quite poorly. Other, more useful, information from Yeshiva has also stayed with me, especially from the Torah, the Talmud and Jewish history. Half a century after finishing my religious education, I wrote a book entitled "The Genesis of Justice," in which I analyzed the first book of the Bible from a secular lawyer's perspective. I never could have done this without my Jewish education. When I showed the galley proofs to my Uncle Zacky, an Orthodox rabbi, he said he admired its intellectual content but not its heretical views. He pleaded with me to "change just one word." I asked him, "which word?" He responded "the word `Dershowitz' on the cover. 32 EFTA01091004 4.2.12 WC: 191694 In my family, directness was more of a virtue than politeness, and interrupting someone was a sign of respect. It meant, "I get it, so you don't have to finish your thought. Now let me tell you why you're wrong." The interrupter fully expected to be interrupted in turn, and so on. Nobody ever got to finish what they were saying. Now that's a good conversation. I'm reminded of the joke about the pollster who approaches four random people in Times Square and says, "Excuse me, I'd like your opinion on the meat shortage." The first one, an Ethiopian replies, "There's a word I don't understand, what 'meat?' is?" The second, an American, also says there's a word he doesn't understand: "What's "shortage?"' The third, from China, also doesn't understand something: "What's opinion?" Finally, the Israeli too says there's something he doesn't understand: "What's 'excuse me?"' We never said "excuse me." Conventional politeness was not part of our language. Nor was rudeness. We simply didn't regard interrupting someone as rude, as long as everyone eventually got to say what they wanted. My mother regarded people who were "too polite" with suspicion: "You never know what Muriel is really thinking," she would say about my extremely polite Aunt (by marriage, of course) Muriel, who lived upstairs from us and was married to my somewhat rude (in the best sense of that word, at least to my family) Uncle Hedgie, who you always knew exactly what he was thinking. When I began teaching at age 25, some of my more "proper" students objected to my constant interruptions, until I persuaded them that being interrupted was a compliment, signifying that their point had been made and understood. ("We get it.") Some televisions viewers have also written to me about my penchant for interrupting opposing "talking heads." It's simply a matter of style, not rudeness, though some mistake the former for the latter. Another blessing of my early religious training relates to memory and my use of it in my professional life. My mother was blessed (cursed?) with a near perfect memory. (Probably more nature than nurture.) She could recall virtually everything from her youth. When she was in her 80s, she would spot someone on the train and go over to her and ask her "Aren't you Mildred Cohen and weren't you in my sixth grade class?" She was invariably right. She remembered, word for word, what she had been taught in the third or fourth grade. She remembered every melody she had ever learned, even though she never went to concerts and didn't listen to recordings as an adult. She could recite from memory long poems she learned in elementary school. Most surprising of all, she had committed to memory an entire Latin mass, which a Catholic elementary schoolteacher, in an effort to Americanize the children of immigrants, had made her learn by heart. She had no idea what it meant, but it was one of her favorite parlor tricks to repeat its Latin words, accompanied by the church melody she had learned. She never forgot anything she had heard, read or smelled. Growing up with a mother who never forgot was a curse for me, because I did a good many things I wish she could forget. Although I always knew I had a good memory, I discovered that I had inherited my mother's extraordinary gift while participating in intercollegiate debates. The debate tournaments always took place on Saturday. I pleaded with my parents to let me go, promising that I would travel before the Sabbath and after the Sabbath, and that I would say my prayers wherever I happened to be. My parents agreed on the condition that I not write during the Sabbath. ("Meturnished") My mother told me it wasn't necessary to write because I could remember things that others had 33 EFTA01091005 4.2.12 WC: 191694 to write down. ("Our family has good memories.") I was doubtful but it proved to be true. I became a champion debater and my teammates marveled at the fact that I didn't bring a pencil or pad but could recite word for word what my opponent had said before responding to it. I then realized what a blessing this memory was. I went through the rest of college and law school without ever taking a note. This enabled me to listen very carefully to what was being taught and to have a far better understanding of it than the student "stenographers" who were busy taking down every word the teacher said, as if putting it in writing was a substitute for understanding it. To this day, I rarely take notes, even in court, though my memory for new information is not nearly as good as it used to be. Recently, after watching the film "Invictus," my wife asked me if I had any idea who wrote the poem by that name. She thought it must be a well known poet, such as Byron or Shelly. Without thinking, I blurted out "Henley." She replied "who the hell is Henley?" I said, "I don't have the slightest idea, but I think Invictus was written by some English poet named "Henley." She checked Google and sure enough the poem was written by a relatively obscure Victorian poet named William Ernst Henley (1849-1903), who wrote little else of note. His name popped into my head as a 55 year old memory association from a high school English class in which we had to memorize the author's various works that we read but probably didn't understand. (To show how little has changed in more than half a century of poor education, my daughter in her sophomore year at Yale had to memorize and spout back on the final exam, the name of British landscape portraits, the year they were painted and the museum in which they hang. It's as if God hadn't invented Google precisely to eliminate such absurd memorization tasks.) A few years earlier, I impressed my children at Steve's ice cream shop in Cambridge, which offered free ice cream to anyone who could answer really obscure trivial pursuit questions. The question of the month that no one had answered was: "What was the Lone Ranger's family name? (Most people said "Ranger.") I immediately blurted out "Reed." I added that Reed was also the Green Hornet's family name because according to the "origin story" in a comic book that I had read half a century earlier, they were cousins. During my junior year in high school, my memory for obscure facts and the "parlor tricks" I played with it got me an interview with the producers of a television game show called "The $64,000 question," but I failed the personality part of the test and was rejected. That was fortunate, since the show was rigged. (I still have the letter from "Production Services Company" at 667 Madison Avenue informing me that the results of my written examination "are gratifying" and inviting me for the personal interview I failed). But my "mother's memory" has served me well as a lawyer, teacher—and joke teller. (The downside of remembering every joke I ever heard is that I rarely get to hear a "new" joke, because I've heard—and told—a good many jokes over my lifetime). I not only remember the jokes I've heard (and told and retold) over the years, but more importantly, I remember nearly every case I ever read, nearly every fact in the records of cases and nearly every principle of law I ever learned. I try to teach my students to develop and rely on their memories rather than on their stereotypical skills. During the first two weeks of law school, I forbid my first year students to take any notes ("meturnished"). I assure them that nothing discussed during this "listening" period will be on the exam and I urge them to learn 34 EFTA01091006 4.2.12 WC: 191694 how to listen and remember, because this will be very important in court and other professional settings. Many of the students react nervously because they have never been denied the ability to take notes, but after a few days they acclimate, and some even appreciate, the different regime. My good memory went mostly to waste in my early years, because there was so little worth remembering. We would be given a quarter to memorize passages from holy texts and a dollar if we could recite "by heart" (what does that mean?) an entire chapter from the Bible. Only once did my memory serve me well during my adolescence, and that was at my Bar Mitzvah. Prior to "becoming a man," I had never really excelled at anything. I was good, but not great, at athletics; good, but not great, with my social life, and God-awful in academics and behavior. But my Bar Mitzvah performance was perfect. I had read the Torah portion—"Judges and Magistrates"—flawlessly, because I was able to memorize the entire reading, melody and all. My performance was the talk of the neighborhood. But a month later, my friend Jerry (now a prominent rabbi) read his Torah portion in the same synagogue. He was awful, making mistake after mistake, and singing off tune. It was embarrassing. The rabbi then got up to give the sermon. He recognized that Jerry had not done well and in order to console him, he referred to "another Bar Mitzvah boy" who had done a better job reading from the Torah, but who wasn't nearly as good a student or person as Jerry. "We judge boys not by the quality of their voices or their ability to memorize, but by their understanding of what they were reciting and by the lives they lead based on their understanding." It was a direct put down of me, and so understood by the congregation. It stung me and led me to conclude that I could do nothing right in the eyes of the religious authority figures. Even when I did something perfectly, they would find some way to turn my success against me. It discouraged me from trying. A few years later, I had a similar experience in high school. The one subject that interested me was history, and the teacher was young and dynamic. I studied hard—a rarity—for a state-wide exam and got an 88. When the teacher, who knew my reputation as a mediocre student, told me my score, he said: "Don't let it go to your head. You're a 75 student. You've always been a 75 student and you'll always be a 75 student." (He gave me a 70 despite my 88 grade on the Regents exam.) It became a self-fulfilling prophecy for two reasons. First, all my teachers believed it. Second, I believed it and stopped studying because I could get 70's or 75's without much work, and if that's who I am, why take time away from activities I enjoyed, such as sports, jokes, girls and messing around. It was in the summer of my junior year in high school, when an authority figure—the camp dramatics counselor, Yitz Greenberg (also now a prominent rabbi)—finally told me that I wasn't a "75 student." He had cast me in the difficult rule of Cyrano d'Berjurac in the camp play. I memorized the lines and did a good job (my long nose helped). After the performance, Yitz put his arm around me and said, "You know you're very smart." I replied, "No, I just have a good memory." He insisted that my smarts went beyond memorization. He told me I could be a good lawyer. I respected and believed him. It was an important moment in my life, for which I will be forever grateful. My parents loved me but never told me I was smart, because they believed my teachers and saw my report cards. I needed to hear it from an authority figure outside of my home, and Yitz was that figure. 35 EFTA01091007 4.2.12 WC: 191694 Despite my inglorious high school career, Yitz's faith in me led to consider college. My father thought I should go to work and take some classes at night, but my mother wanted me to graduate from college—as she couldn't do. My mother filled out my application to Brooklyn College. I wanted to go to City College in Manhattan, because my best friend Norman Sohn was going there, but my parents wouldn't let me go to an "out-of-town college." Brooklyn College was part of the New York City College system, which had an excellent academic program, but little by way of any social or athletic life. It was free to any New York City resident, and anyone who had a sufficiently high grade average in high school was automatically admitted. Remarkably, the required grade score was different for boys and girls. Boys needed an 82 or 83 average (depending on the year) while girls needed an 86 or 87. Imagine the lawsuit today! The reason for this differential was that the school wanted "gender balance," and if the same score were required, the college would be dominantly female. (Similar differentials are still at work today, but they operate beneath the radar screen under the rubric of "diversity" and "discretion." An admissions officer at an elite college told me that he turns down many students with perfect SAT scores. When I asked him who these rejected students were, he acknowledged that they were almost exclusively of Asian and Jewish background: "if we took everybody with perfect SAT scores, there would be little diversity," he explained. He too apparently believed in the "Yiddisher (and Asian) Kup" theory.) I did not come close to having an 82 average, but fortunately there was also a test that an applicant with non-qualifying grades could take. Unfortunately, a high score alone on the test did not get you in: you needed a combined score—test plus grade average—to make the cut. With my low average, I needed a near perfect score to make it. Otherwise I would have to go to night school and work during the day. I did very well on the test and was admitted. I also won a New York State Regents Scholarship which paid me $1,400 to go to college. (I put the money in an interest bearing account that paid for my first year at law school.) The state scholarship was based entirely on a single, highly competitive exam. High schools took great pride in how many state scholarships their students won. The relevant statistic that helped rank the schools was the percentage of those who won, based on the number of students who took the exam. My high school was obsessed with doing well in the state scholarship competition, so it limited those who could take the exam to students with grade points over 80, in order to inflate the percentage of winners. I did not qualify, but I knew I could do well on a state-wide competitive exam that was graded by outsiders, not by my teachers who were predisposed against me. So I pleaded with Rabbi Zuroff to take the exam. He refused, telling me I would never win and my taking it would just bring down the percentage. Not satisfied with his answer, I filed a petition with the New York Regents-my first of many petitions. To everyone's surprise, the Regents ruled in my favor and the school was ordered to let me, and everyone else, take the exam. Two of us, who had averages below 80, along with 4 or 5 others, won the scholarship. My principal's first reaction was that I must have cheated, but a check of the seating chart showed that I was not sitting near anyone else who won. So off I went to Brooklyn College, with money in my bank account. It was a turning point for me academically, professionally, religiously and existentially. Before I turn to my college and law school years, which were quite successful, I want to speculate for a moment as to why, despite the unsuccessful nature of my early teen years, I am so 36 EFTA01091008 4.2.12 WC: 191694 focused on them as so formative to my later life. Several years ago, The New York Times Magazine asked me to reflect back on my teen years for a column entitled About Men. The assignment got me to wonder why I am so obsessed with nostalgia from that particular period in my life. This is part of what I wrote: I'M ENTERING THAT AGE WHEN songs from the hit parades of my adolescence bring tears of nostalgia. I'm a sucker for memorabilia of the 1950's. My house is cluttered with toys I've recently bought - chintzy replicas of vintage Chevys and Thunderbirds, overpriced miniature jukeboxes that play "Rock Around the Clock," anything reminiscent of the 1955 world champion Brooklyn Dodgers (a redundancy to any aficionado, because there are no other world champion Brooklyn Dodgers). I rush to see any Woody Allen film that has even a remote connection to the time and place we both grew up in (another redundancy - everything Woody Allen does has a strong connection to Brooklyn in the 50's). I drag my family to Neil Simon plays through which I laugh and cry while they observe me in puzzlement. I crave reruns of television sit-coms and revivals of shows I hated in their original incarnations. Those must have been wonderful times to evoke such strong - and expensive - reactions. I then described a nostalgia weekend that I and six guys I grew up spent at the Concord Hotel in the Catskill Mountains, where we once had gone to summer camp or worked as waiters. The guys played one-on-one basketball and horse (even those who hated hoop as kids). We told jokes so old you could give them numbers (itself one of the oldest jokes). And we wondered about why our lost adolescence exerted such magnetic attraction. "Those were the worst days of my life," one of the guys - who used to talk with a high voice - confided. Suddenly, we were all contemplative. Our adolescence was miserable, we acknowledged. As the Musak played "Love Is a Many-Splendored Thing," another related how he dreaded the slow dances because he would always become palpably tumescent (certainly not a phrase from our youth) while doing the fox trot. Another shocked us all by soberly confessing that he had become tumescent only once during his adolescence, but then he reassured us by bragging that "it started when I was 12 and it didn't stop until I was 21." I then recalled one of the most humiliating moments from my adolescence: It was prom time, and the girls had established a committee of three to which the boys had to apply for dates. I had my eye on a pretty blonde from an adjoining neighborhood (her distance, I hoped, might have kept her from learning of my questionable reputation among the local parents). As I approached the committee and shyly uttered "Karen," all three arbiters laughed. "Don't you know," the cruelest admonished me, "that Karen is on 37 EFTA01091009 4.2.12 WC: 191694 the A list and you're on the C list? You can only pick from the C or D lists." It was a relief to learn there was a list lower than mine, but a shock to be confronted with my official ranking. I went to the prom alone and danced with my cousin, who was also on the C list. Those were miserable years, all right. They were years of self-doubt, sexual guilt without sexual pleasure, fears and transitions. Before you were comfortably into one stage you were already entering another, more precarious, one. They popped up as if on schedule, like the beginning of the yo-yo, marbles or mumble typeg seasons. So I asked myself why I insisted on recapturing the most miserable period of my life. This was my answer: [W]hen a man reaches the age of counting backward, maudlin nostalgia sets in and he begins to run, not walk, to every restored toy emporium he hears about from other retrievers of lost youth." Our wives—most of whom had known us as adolescents—agreed that we had been pretty nerdy back then, but they prided themselves on having seen through the external faults that had relegated us to C lists. "You don't need to buy the 50's in a store," one spouse quipped, "you guys are walking memorabilia." Another turned an old phrase: "I was able to take my husband out of the 50's, but I can't take the 50's out of him." The early 1950s-my high school years from September 1951 to June 1955—were not my finest hours. Yet they were as formative as any other period, though the formative dynamic was mostly reactive. I think about them often. My wife says I am obsessed with nostalgia for my troubled adolescent past. 14 Salesmen at the nostalgia shops tell me that men in their 40's and 50's experience the need to "collect" their adolescence more than women do. "When I see a guy with a goofy looking grin dragging a couple of teen-age kids through my door on a weekend, I know my summer vacation will be paid for," one shop owner told me. "But if he's got his wife with him, he'll probably buy just one sensible memento for his office." 38 EFTA01091010 4.2.12 WC: 191694 Perhaps that is because I would like to relive them—both to regain my vigorous youth and to use it in a more productive manner. I'm not sure. But I am sure that my early teens laid a firm foundation for my very successful late teens—my college years at Brooklyn between the ages of 16 and 20. I had something to prove, and I went about proving it with a vengeance. My parents were hoping I would make a B average in college, which was very respectable in those days before grade inflation. They didn't want me to get A's because A students became teachers, and they certainly didn't want me to get C's, as I had in high school. I could never satisfy them. I went straight from C's to A's, almost never getting a B in anything. I really blossomed in college, though I didn't do anything very different from what I had done in high school. I was a "smart aleck" and a "wise guy," but these qualities were appreciated and rewarded at Brooklyn College, while at Yeshiva High School they were punished. Whenever I came up with anything original in my high school religious classes, my rabbis would say: "If your idea is so good, then the ancient rabbis, who were so much smarter than you, would have came up with it first. If those rabbis, who were so much smarter than you, didn't come up with the idea first, then it can't be any good." End of discussion. It was all different at college. 39 EFTA01091011 4.2.12 WC: 191694 Chapter 2: My Secular Education—Brooklyn and Yale I loved everything about Brooklyn College. The inner city campus was green and lush. The professors were phenomenal teachers—many of them en route to more elite universities. The students, though mostly Jewish, seemed diverse to me because so few were Orthodox. Intellectual and political debate filled the classrooms, the lunchrooms and the quad. No one said "Metumeshed." Every idea was acceptable (except, perhaps Communism, since the stench of McCarthyism still hung in the air.) I felt free to experiment with my thoughts and words, but not yet with my actions. I remained an Orthodox Jew in practice and I did not try drugs or even alcohol. (I tried to try sex, but couldn't find any willing partners.) My friends and I founded a "house plan" — an urban fraternity for students who lived at home with our parents, as we all did. We called it "Knight House" and our boastful Latin slogan was "semil equis satis"—"once a knight is enough." Since we were all orthodox Jews, we could not attend the usual Friday night parties, so our orthodox Jewish house plan had its parties on Saturday or Sunday night. We were desperate to defy the stereotype of orthodox Jewish wimps, so we worked hard on our athletic skills, ultimately winning the house-plan championship in several sports. I still have newsclippings attesting to my athletic accomplishments: "Knight soccer champs"—"Al Dershowitz led the knighters to victory, scoring two large goals." In my senior year in college, a group of friends decided it was time to lose our collective virginities. We heard that there was a special deal over Christmas vacation to travel to Havana, then a wild city. We all went down to Florida in another friend's old car and bought round trip tickets to Havana for $59. We had the name of a house, which specialized in transitioning young boys into men. We were scheduled to make the hour-long flight the day before the 1959 New Year. We couldn't wait to get to Havana, but a bearded guy named Fidel got there first and we couldn't make it. For years, I had been telling people that the flights were cancelled, but a couple of summers ago I was at a party with a man (now married to a prominent public figure) who was at Brooklyn College with me. He and several of his friends were also going to Havana for the same reason. I had forgotten that the trip to Florida was actually sponsored by the Brooklyn College Student Government. When I told him my story, he said, "I made it to Havana," and I said, "but the flights were cancelled." He said, "No they weren't. The State Department just issued a warning that it was a little bit dangerous." I guess he was more determined to lose it than I was. His wife, who was then his college girlfriend, said that she didn't "touch him for a year after that." I took another trip with my college friends. It was to Washington D.C. On the day we arrived, the king of Saudi Arabia was a state visitor. In his honor, green Saudi flags draped all of the important federal buildings and monuments. When I saw the flag of that slave-owning dictator on the Lincoln Monument, I got angry and tore it down. I was immediately taken into custody by a park policeman. His superior was sympathetic, however, and let me go with a warning: "Next time, make sure no one sees you when you tear down the rest of those damn flags." 40 EFTA01091012 4.2.12 WC: 191694 Mostly, I worked very hard, achieving an A average and Phi Beta Kappa Honors, winning debate tournaments and being elected president of the student council and captain of the debate team. Reading became my passion: literature (Dostoyevski, Shakespeare, Bellow); philosophy (Kant, Aristotle, Plato, Neitsche; history ( ) and politics ( ). I loved arguing with my professors. One of my favorites was John Hope Franklin, the first African American appointed to the chairmanship of a department (history) in a college that was not historically black. We remained friends and colleagues until his death in his mid-90s. My presidency of the student council brought me into repeated conflict with Professor Harry Gideonese, the President of the College, a Midwestern conservative who was brought to Brooklyn to "clean out" what had become "the little red schoolhouse." Several professors had been fired, or not hired, because of the "red" or "pink" affiliations and I fought against this post- McCarthy purge, on freedom of speech grounds. Leading the other side was a professor of romance languages named Eugene Scalia, an elegant and brilliant reactionary, whose son Antonin has followed in his ideological footsteps. Despite my conflict with President Gideonese, the school nominated me for a Rhodes Scholarship. In my application, I wrote the following: I believe that my college career has been a period of moral and intellectual growth throughout which time I have felt an increasing responsibility to my conscience in matters of self improvement. I felt this personal responsibility so strongly in college because I had almost completely neglected it throughout high school. A firm determination to show myself, as well as my high school contemporaries, that I could become an outstanding student in college has been a most potent motivating force. I also listed my academic, political and athletic achievements, and promised that if admitted to Oxford: I would read for the Oxford B.A. in the Honor School of Jurisprudence and then enter Law School in the United States. In those days Jewish boys (only males were eligible for Rhodes) from Brooklyn were not selected by the Rhodes Committee, and despite my academic, political and athletic accomplishments, I did not even get an interview. It took several decades before Brooklyn College received its first Rhodes Scholarship. By my senior year at Brooklyn, I had decided to go to law school. That path seemed natural in light of my success in debate and school politics. I had no idea what the practice of law was, except what I had read about the careers of such legal luminaries as Clarence Darrow, Thurgood Marshall, and Louis Brandeis. My uncle Morris was a lawyer, but he spent most of my formative years in the Army and when he returned he specialized in contract cases, which held little interest for me. I asked Grandma Ringel to introduce me to an old friend of hers, whom she always referred to as "Judge Berenkoff." I had no idea what kind of judge he was, but he was the only judge I knew. My grandmother wondered why I wanted to meet Judge Berenkoff. I told her that since he was a judge, he might have some good career advice for an aspiring lawyer. 41 EFTA01091013 4.2.12 WC: 191694 My grandmother laughed and said: "Berenkoff's no judge, he's a butcher." She explained that "his first name is Judge," and then she spelled it out: "G-E-O-R-G-E," which she, with her Yiddish accent, pronounced "Judge." Shortly after New Year I got my letters of acceptance from the various law schools to which I had applied. Since I had done very well in college and was president of the student government, I got into all the law schools to which I applied. I chose Yale, much to my mother's regret. She wanted me to go to Harvard. Until the day she died at age 95, when people ask her where I went to law school, she replied, "He got into Harvard, but he went to Yale." I also got into Columbia Law School, and the dean of Columbia, William Warren, wrote a letter to my parents, congratulating them on my admission and on the fancy scholarship I had won. (I still have the letter addressed "Dear Mr. and Mrs. Dershowitz"). I interpreted his letter as an attempt to have my parents try to persuade me to go to Columbia. So I wrote back—not to Dean Warren, but to "Dean Warren's parents, care of Dean Warren, Columbia Law School." I told his parents that their son was writing to my parents, and suggested that they tell him that if he wanted students to go to his law school, he should write to the students themselves rather than to their parents. I thought it was pretty funny, but I stopped laughing several years later, when I was on the law school teaching market and I went to Columbia for an interview. After meeting several members of the faculty, I was taken in to meet Dean Warren. He was waiting for me, with my letter in his hand. I was sure I would never get a job offer, but he looked at me and said, "That was a really good letter. I stopped writing to parents after getting it." He offered me a job. Immediately after graduating from Brooklyn College, I got married to a woman I had met in a Jewish summer camp that boasted of the many "shidachs" (meetings that resulted in marriages) for which it was responsible. I was not yet 21. Sue was 19. My mother wouldn't let me go to an out of town law school unless I was married, for fear that I would meet "the wrong kind of girl." A year after we were married, Sue became pregnant with our first child, Elon. I loved Yale Law School. During my first year, I had Professor Guido Calabresi as a teacher. It was his first year of teaching. When I came home for the Jewish holidays, my mother asked me how I found my professors. I told her that they were all brilliant mentioning Professor Pollak and Professor Goldstein, but I told her my most brilliant teacher was Professor Guido Calabresi. Without missing a beat she said, "Is he an Italian Jew?" I replied, "Ma, you really are a bigot. Non-Jews can be smart too." She looked at me as if to say, "Wait, you'll see." Sure enough, several weeks later, my wife and I invited Calabresi, who was a bachelor at the time, to our apartment for dinner. We served him lamb chops and a baked potato with margarine on it. Calabresi looked at the margarine and the lamb chops and said, "Isn't this fleishicks mixed with milichicks," using the Yiddish words for meat and milk. I explained that the margarine did not contain dairy, although it looked like butter. I then asked him how he knew these words. He explained that he was an Italian Jew. I refuse to give my mother the satisfaction by telling her that she was right, at least about Calabresi. One of my teachers was Abe Goldstein who had grown up in Williamsburg, near where my family had lived. My class contained lots of students with famous names—William Brennan, Jr. (son of the Justice), a grandson of Chief Justice Warren, a descendent of President and Chief 42 EFTA01091014 4.2.12 WC: 191694 Justice Taft, John Marshall and others. When Abe Goldstein called on each of these men, he did it nonchalantly without mentioning their heritage. But when he came to my name, he paused and said, "Dershowitz, from the famous Dershowitz family?' The class burst out laughing. For a moment I thought he was mocking me, but he explained that in Williamsburg, the Dershowitz name was quite well known. Yale Law School was an institution of meritocracy, where one could rise to the top, regardless of name or lack of heritage. I was first in my class, and became editor-in-chief of the law joumal. That wasn't enough for the fancy white shoe Wall Street firms. During my second year, I applied to about thirty such firms, and was turned down by every one of them. The hiring partner of Sullivan and Cromwell, looked at my transcript and saw all A's, except for one C in Contracts. (I was so angry with my Contracts professor that I immediately enrolled in Advanced Contracts with the same teacher, and got an A). The hiring partner looked at my transcript and brushed me away and said, "We don't take C students at Sullivan and Cromwell." Years later he approached me at a Yale reunion function and told me that he had saved me from a bad experience. He disclosed that he was a closet Jew and realized that I would never fit into the culture of that firm. Within several years however, that firm along with most other Wall Street firms, had significant numbers of Jewish associates and partners. (In the late 1960s, I sued one of the firms that didn't hire me for refusing to promote an Italian-American to partnership and won a ruling that discrimination in promotion was prohibited by the law). I got two job offers, both with Jewish firms, but even one of them discriminated against me on account of my religion. Paul, Weiss, Rifkin, Wharton, and Garrison offered me a summer job at $100 a week. (I still have the letter!) I immediately accepted and wrote to them that I could not work on Saturday. I did not give the reason, namely that I was an observant orthodox Jew. I was told to come and meet some of the partners when I was next in New York. I was introduced to Adlai Stevenson and several other partners and finally taken in to see the firm's major "rainmaker," Simon Rifkin, a prominent Jew who was active in numerous Jewish organizations. He told me how pleased he was that I would be working with the firm, but asked me why I would not be available on Saturdays. When I told him it was because I was Sabbath observant, he replied, "Oh no, we can't have that here. I thought it was just a restriction on your availability this summer. I need associates who are available seven days a week." I took a job with the other Jewish firm, Kaye, Scholer, Feirman, Hays, and Handler. They were perfectly comfortable with my being Sabbath-observant. The big "rainmaker" at that firm was Milton Handler, who was so busy seeing clients, that he would make time for associates only when he could not fit in a client. He would ask associates to drive home with him, or to go with him to Columbia when he was going to teach. One day his secretary called and said Mr. Handler wants you to meet him at a particular address. She gave me the address; I proceeded to walk up Park Avenue not knowing where I would find him or in what setting. When I got there, his private barber was cutting his hair. I was seated next to him while he got his haircut, and he dictated notes to me. It wasn't as bad as what Lyndon Johnson would do, requiring aides to join him in the bathroom. While working at Kay, Scholer, I had the first fancy restaurant meal of my life. I was asked to join two of the partners at an elegant Park Avenue establishment. Though I was twenty-two years old, I had never eaten out except at delis. When the waiter put a napkin on my lap, I didn't 43 EFTA01091015 4.2.12 WC: 191694 know what to do with it so I tucked it under my neck to protect my new tie. One of the partners pulled it off and said "Young man, this is a restaurant, not a barbershop." All first year law students at Yale are required to participate in a moot court competition. My opponent was a classmate named Taft, one of whose ancestors was the President of the United States and the Chief Justice; another a senator from Ohio and the third the mayor of Cincinnati. It is fair to say at that time that Taft was one of the most prominent names in America. My mother was convinced that I couldn't possibly compete with a Taft and that I would be demolished in moot court. To provide support, she and my father came up to New Haven to watch me argue. I did fine. When my mother told my grandmother that I had beaten a Taft, she replied, "Taft? That's a funny name. I wonder what he changed it from?" In my neighborhood, many short names, like many short noses, had once been longer. In my third year, I served as editor-in-chief of the Yale Law Journal. I was the first orthodox Jew to serve in that capacity, and there were some who doubted that this seven day a week job could be done by a six-day a week worker. But I managed to get the job done, and at the end of the year a few of my associate editors presented me with a mock copy of the law journal in which every seventh page was blank. The speaker at my law school graduation was President John F. Kennedy. He used the occasion to make the statement about having the best of both worlds, a Harvard education and a Yale degree. (I now have what I think is the best of both worlds, a Yale education and a Harvard teaching job). My son Elon was a year old at graduation, and I brought him along. During Kennedy's speech, he started crying. A local New Haven television station caught him in the act, and the voiceover said that Yale was always a Republican school. (I don't think Elon has ever voted for a Republican in his life.) During my years at law school, I developed an interest in writing academic articles. At Brooklyn College, I wrote a paper about the 5th Amendment. In it, I explored the history, policies and applications of the privilege, especially in the context of legislative investigations, where many of the battles over the scope of the Sth Amendment were then being fought. I pointed out that the privilege had "traversed many cycles" over the years and had been "adapted to changing times and needs," and concluded that though we "are considering the very same constitutional phrase, we are dealing with a completely new and hitherto unknown privilege." I would repeat the theme of a changing Constitution in much of my writings over the years and would eventually write a book about the St" Amendment. At Yale, I wrote two articles for the law journal—one about attempted murder, the other about corporate crime—that brought me to the attention of the faculty not only at Yale but at Harvard as well. Both schools had their eyes out for me as a potential faculty recruit. I worked with several professors at Yale, serving as a research assistant to Professor Guido Calabresi, Joseph Goldstein, Jay Katz, Alexander Bickel and Telford Taylor. They each became mentors to me and I tried to follow in their very large footsteps. The professor who most influenced my legal thinking were Joseph Goldstein, who taught me criminal law, but he really didn't teach me much about the actual law; his job was to get the students to question everything, to accept nothing and to rethink every principle of law. Some 44 EFTA01091016 4.2.12 WC: 191694 students hated his course, because they learned no law. Goldstein had failed the bar and had never practiced a day in his life. I loved his course and seminars and was deeply influenced by his approach to law. Another professor who influenced my approach to law, but in a rather different way was Alex Bickel, who taught me advanced constitutional law. He looked at our constitution politically and structurally and had a coherent, if imperfect, theory of how the constitution should be interpreted. Both of these mentors defied conventional labels, such as liberal or conservative. The professor who had the most influence on my career choice was Telford Taylor, who combined an active constitutional law practice with teaching and writing. Although we could not have been more different in background and bearing—he was a tall, elegant WASP, had served as a general in the Army, was the Chief Prosecutor at the Nuremburg Trials, always wore a suit and tie, and was polite to a fault—we had much in common and became close friends and colleagues. (So much for needing mentors of the same ethnicity, religion, race, gender, etc!) I consciously tried to model my career (except for the Army part) after his. Shortly after John Kennedy was elected president, rumors began to circulate that Taylor was being considered to head the C.I.A. He took me aside one day after class and asked me, in confidence, whether I would consider coming with him to Washington, if he were to get the appointment, and serving as his executive assistant. I told him I would certainly consider such an offer. Eventually President Kennedy appointed someone else, deeming Taylor too liberal for the job. Years later, Telford and I discussed how different our lives would have been if we had both joined the CIA. "One thing I know would have been different," Telford quipped. "There would have been no Bay of Pigs." Telford Taylor made me another offer, during my second year in law school, which I also could not accept. He had been hired to go to Jerusalem to broadcast the trial of Adolf Eichmann, a job for which he was eminently suited, having been the Chief Prosecutor of Nazi war criminals at Nuremberg and also Chairman of the Federal Communications Commission. He asked me to come with him to serve as his research assistant and translator. But I had just been elected Editor-in-Chief of the Yale Law Journal and didn't feel comfortable being away for so long. I declined the offer, and have always regretted missing that important historical event. (Years later, I observe and write about the trial of accused Nazi war criminal John Demjanjuk in Jerusalem.) During law school I also developed a keen interest in the relationship between law and other disciplines, such as economics and science—both physical and social. I worked as a research assistant on Professor Calabresi's groundbreaking article on law and economics, and a research assistant to Professors Goldstein and Katz on their teaching and writing on law and psychiatry. I eventually collaborated with Goldstein and Katz on a book entitled Psychoanalysis, Psychiatry and the Law. Later I collaborated with Telford Taylor n several human rights projects. During law school I also developed interests in civil rights, especially with regard to desegregation. In college I had joined the NAACP and had participated in a bus protest to 45 EFTA01091017 4.2.12 WC: 191694 Washington. In my second summer at law school I went to Howard University in Washington and trained to become a civil rights observer in the South. My family was frightened when I traveled to Georgia and Alabama, but I returned unscathed but forever sensitized to the evils of segregation. My law school career was a resounding success and I was ready for the next stage in my life—a clerkship in the nation's capital. 46 EFTA01091018 4.2.12 WC: 191694 Chapter 3: My Clerkships: Judge Bazelon and Justice Goldberg Appellate court clerkships, most especially with a Supreme Court Justice, are the most coveted positions following graduation from law school. Today, many law firms pay huge signing bonuses--some as high as $250,000--to attract Supreme Court clerks. In my day, the value of such clerkships were not measured in dollars, but rather in status and prestige. In 1962, there were approximately 18 clerks serving the 9 justices; the chief justice had 3, the associate justices were entitled to 2, but Justice Douglas--who rarely used his clerk--opted for only one. Today, each justice has law clerks and the chief justice has . The competition for these coveted positions has always been fierce. Although, theoretically, any law school graduate can apply, most of the clerkships go to a handful of elite schools, with Harvard, Yale, Chicago and Stanford generally garnering the most. (Probably because so many of the Justices attended elite schools: The current Supreme Court has 5 justices who graduated Harvard, 3 Yale and 1 who attended Harvard but graduated Columbia.) Some clerkships were reserved for those who met certain criteria. Justices Brennan, Frankfurter and Harlan picked only from Harvard. Justice Douglas generally picked from the West Coast, often from Washington State. Justice Black favored southerners, tennis players, and "kissin' cousins", but was open to accepting recommendations from certain Yale Law School professors. Chief Justice Warren favored "hail fellows well met" and athletes! Justice Clark preferred Texans. Justice Goldberg (who replaced Justice Frankfurter shortly after I graduated) liked to have one clerk with Chicago connections. I fit none of the pigeonholes, except that I was male and white--as were all the law clerks. This meant that, effectively, I was competing for 3 or 4 slots. My best shot was with Justice Black, because one of my mentors at law school was his recent clerk, Guido Calabresi, and he strongly recommended me to the Justice. But there was a problem. I had alienated another Yale law professor, who was also very close to Justice Black. Professor Fred Rodel was something of an iconoclast. He insisted on teaching his seminar on the Supreme Court at "Morrie's," a private club near the law school (whose "tables" had been made famous by the Wiffenpoof song: "From the tables down at Monies to the place where Louie dwells....") Morrie's was a men's club that did not serve women, so Rodel, who fancied himself a left-wing radical, simply excluded women from the seminar. When I learned of this policy of exclusion, I quit the seminar, earning the everlasting hatred of Rodel. To add insult to injury, I substituted a seminar by Professor Alex Bickel, who Rodel despised, because Bickel took a "Frankfurtiarian" approach to constitutional law, rather than a "Blackian" approach. Though I myself favored Justice Black's "absolutist" view of the Bill of Rights, I admired Professor Bickel's writings and loved his class. This was enough to make me unkosher for Rodel. Professor Bickel gave me an important, if difficult, piece of advice when I asked him to recommend me for a clerkship. "Alan, I'm going to recommend you for clerkships, but you have to promise me you're going to turn off at least one of your barrels when you go and clerk for these judges. They're not used to being confronted directly, and you have to really be very respectful and polite and if you want to say anything critical put it in writing and read it very carefully, but don't do it in front of them." So he taught me the etiquette of being a law clerk, because in Law School, I was doing to my law professors what I had done to my Rabbis. At 47 EFTA01091019 4.2.12 WC: 191694 Yale, this confrontational approach was generally admired. It had not been acceptable to the Rabbis, nor would it be to justices and judges. Even at Yale, my chutzpah was not welcome by all the professors. Professor Fritz Kessler, was an older European trained academic who taught jurisprudence. One day, he was lecturing on Freud's influence on German jurisprudence and he misunderstood one of Freud's most important theories. I raised my hand and corrected him. After class, an older student, who had been a Marine and was married to another student in our class, grabbed me and said, "You embarrassed someone I love. If you ever do that again, I'll deck you." I was startled and replied, "How did I embarrass your wife?" He said, "Not my wife, stupid. Professor Kessler, you embarrassed him. Don't ever correct him again publicly." So much for academic freedom. But Professor Bickel was wise to caution me about toning down my aggressiveness if I wanted to succeed as a law clerk. Guido Calabresi offered similar cautionary advice, but it was more about style than substance. He really pushed hard to get Justice Black to select me. Professor Rodel was so concerned that I might contaminate the elderly Justice Black that he took the train to Washington to try to persuade him to reject the recommendation of his recent law clerk. In the end, Justice Black told Professor Calabresi that he had to defer to his friend's veto for that year but that he would consider me for the following year. This was the best possible news because it allowed me to accept a clerkship with Judge David Bazelon on the United States Court of Appeals for the District of Columbia. Judge Bazelon was actually my first choice, but I also wanted--indeed I felt I needed--the status that came along with a Supreme Court clerkship in order to obtain the kind of job offers I would be seeking after finishing my clerkships. Two of my other mentors at law school, Professor Joseph Goldstein and Professor Abraham Goldstein (not related) had both clerked for Judge Bazelon. One of my primary interests in law school was the relationship between law and psychiatry. Another was criminal law. Those were also Judge Bazelon's specialties. Making the Bazelon clerkship even more appealing was the likely upcoming vacancy that would be left when Justice Frankfurter, who had suffered a stroke, retired. Bazelon was on the short list to fill the so-called "Jewish seat" on the Supreme Court. So if Judge Bazelon were to be promoted to the Supreme Court, he might take his law clerk with him. In the end, Judge Bazelon was regarded as too liberal for the Kennedy Administration and was passed over for labor secretary Arthur Goldberg, who had no judicial experience, but boasted a distinguished career as a labor lawyer before he joined the Cabinet as Secretary of Labor. Bazelon and Goldberg were close friends, both having grown up in the Jewish neighborhoods of Chicago and being the same age. I ended up clerking for both Judge Bazelon and for Justice Goldberg, which was a dream come true. I spent two years in Washington from the summer of 1962 to the summer of 1964. These were extremely eventful years, not only for me, but for the country and the world. The Cuban Missile Crisis took place several months into my clerkship with Judge Bazelon. Martin Luther King's "I have a dream" speech was delivered in the summer of 1963. And in the fall of 1963, early in my Supreme Court clerkship, President Kennedy was 48 EFTA01091020 4.2.12 WC: 191694 assassinated and Lee Harvey Oswald was murdered. I had personal connections to each of these momentous events. Those years were also eventful in terms of judicial decisions. Many of the most important civil rights, criminal law and freedom of speech cases were decided during my tenure as a law clerk. It was a period of liberal judicial activism—the Zenith (or for those more admiring of judicial restraint, the Nadir) of The Warren Court. It was a heady time for a young liberal lawyer to be in the nation's capital. My year of clerking for Judge Bazelon Even more important than my substantive experiences in working with these two important judges, was the personal impact they both had on my life. Each was to serve as a mentor, though in very different ways, throughout their entire lives. Indeed, I continue to be influenced by them even years after their deaths. I arrived in Washington during the summer of 1962, in the midst of the Kennedy Administration. Although Judge David Bazelon was a court of appeals judge—early in my clerkship he became Chief Judge—he was at the center of Washington life, both socially and politically. He knew everyone. He socialized regularly with Senators, Congressmen, cabinet members, White House staffers, Supreme Court justices, diplomats and other movers and shakers. He had two clerks, but I was very much his senior clerk, and he didn't much like or respect his junior clerk. He saw me as a protégé and he took me with him everywhere that it was appropriate for me to go. At the center of his social life were the weekly lunches at the office restaurant of a local liquor distributor named Milton Kronheim, whose personal chef would prepare simple but superb lunches for "Milton's boys." Kronheim himself was in his mid- seventies when I met him. (He would live to 97, pitching in his weekly company softball game until his late 80s). His frequent guests, in addition to Judge Bazelon, included Chief Justice Earl Warren, Justices Thurgood Marshall, William Brennan and William Douglas, Judges J. Skelly Wright, Senators Abe Ribacoff and Jacob Javits and many other judicial and political notables. The small lunchroom where Milton's entertained had photographs of Kronheim with every president since Harding. Hundreds of other wall-to-wall photographs showed him with just about every important political, business and sports figure of the Twentieth Century. Judge Bazelon once told me a joke about Kronheim, which, with a change of name, from Kronheim to "Katz," became a standard part of the Jewish joke cannon. "There was a guy named ICronehiem who bragged he was so famous he could be photographed with "anyone in the world." A skeptical friend challenged him. "You can't be photographed with the President!" Within days, Kronheim was standing on the White House balcony with JFK, as photographers snapped pictures. "Ok," the friend conceded "maybe in the United States, but not in other parts of the world!" He then issued another challenge: "You could never be photographed with Israel's Prime Minister 49 EFTA01091021 4.2.12 WC: 191694 David Ben Gurion." The next day they were on a plane to Israel, and that afternoon Kronheim was standing on the balcony of the Prime Minister's house being photographed. "Ok, here's the final challenge: maybe among Jews and Americans, you're famous, but you'll never get a picture with the Pope." Next day, they're off to Rome, and by afternoon, Kronheim is standing on the balcony of St. Peters next to the Holy Father. A nun standing in the crowd turns to the skeptical friend and asks, "Who's that guy standing next to ICronheim?" Presidents and Prime Ministers come and go. So do Popes. But not Milton Kronheim, who was a fixture of Washington life for more than 60 years. I was privileged to participate in many of their lunches—mostly as a quiet observer—during my clerkship. (When I became a professor, Judge Bazelon invited me whenever I visited—then as a full participant). The first time I went to ICronheim's for lunch, we picked up two justices at the Supreme Court building: William O. Douglas and William Brennan. I had previously met Justice Brennan through his son Bill, who was my law school classmate and moot court partner. Justice Brennan was just about the nicest, sweetest, most modest, important person I had ever met. I continued a friendship with him until his death in 1997. Justice Douglas was entirely different. Nobody ever accused him of being nice or friendly. He was surly, arrogant, dismissive and—I later learned—a blatant hypocrite. I learned this several weeks after the Kronheim lunch, when Judge Bazelon buzzed me into his office and pointed to the extension phone, signaling me to pick it up. The voice on the other end of the phone was familiar. He was berating Judge Bazelon for canceling a speaking engagement that he had previously accepted. Bazelon turned to me and silently mouthed the words "Bill Douglas," pointing to the phone. I listened as the Justice lectured my judge. Bazelon kept trying to reply, saying "I just can't do it, Bill. It's a matter of principle." Douglas responded, "We're not asking you to join, just to speak." Bazelon replied, "That's the point, Bill. They wouldn't let me join. They don't accept Jews or Blacks." It soon became evident that the two great liberal judges were arguing about a private club that excluded Jews and Blacks. Douglas was a member of that club and had invited Bazelon to give a luncheon talk to its members. Bazelon had originally agreed, but when he learned of the clubs "restricted" nature, he withdrew his acceptance. Douglas was furious, Bazelon adamant. Neither relented. I couldn't believe that the great liberal justice not only belonged to a restricted club that discriminated on the basis of race and religion, but that he was utterly insensitive to Bazelon's principled refusal to speak at such a club. This was the height of the civil rights movement, and Justice Douglas was writing decision after decision decrying public segregation and supporting efforts to demantle it. Yet he himself was participating in private segregation and condemning Bazelon's principled refusal to become complicit in it. This phone call had a profound effect on my own subsequent actions and my refusal to speak, or remain silent about, private clubs that discriminate, whether it be the Harvard Club of New York, 50 EFTA01091022 4.2.12 WC: 191694 which refused accept women for many years, or Jewish clubs, which limit their memberships to my own co-religionists. (More on this later.) Judge Bazelon played hard and worked even harder. For his law clerks it was all work, no play. We had to be in the office before he arrived, and his arrival time was never predictable, though his secretary would sometimes tip us off about an unusually late or early arrival. We had to stay until after he left, and he often worked late. He did not believe in vacation for the clerks-"It's only a one year job, and that means 365 days"—no personal time off. When I first came to work over the summer, I asked him for a few days off to take a preparation course for the DC bar exam. He assured me that I didn't need time off to prepare! "I hired you because you were first in your law school class. You don't have to study for this test." I told him I had been first because I always prepared, but he was dismissive of my request. I tried to prepare myself late at night, but the material was so dry and boring—the criteria to qualify for the "bulk sales act" and other information I would never use—that I always fell asleep. "I'm going to fail the bar," I told him worriedly, "and it may embarrass you." He told me that one of his earlier star law clerks who was my professor at Yale Law School had failed the bar and it didn't embarrass him. Finally, he relented when I told him that I was really having trouble focusing on the ridiculous bar exam questions and he allowed me to leave a bit early for a week to take a crash course that met from six to nine in the evening. A few weeks after I took the exam, Judge Bazelon came storming out of his office holding a paper and not smiling. I knew that he got advance notice of the bar results and I thought that he was coming to tell me I had flunked. Instead he shouted, "You didn't need time off You got the goddamn highest grade in the city. You're a faker," he complained, not bothering even to congratulate me on passing. Several months later when my second son, Jamin, was about to be born, I asked the judge for the day off to accompany my wife to the hospital. He asked, "Isn't Sue's mother here?" She was. "You did your part of the job already. You can visit after the baby is born. It isn't your first child. You don't have to be there for the birth." Fortunately, he was traveling on the day of the birth and I made it to the hospital in time. In light of these actions and attitudes, one can only imagine how shocked I was when Judge Bazelon came back to the office from a lunch at the White House in mid-October and told his entire staff, including his clerks, to "go home and be with your families." He was grim-faced and pale. "Why?" we asked. "There may be a nuclear attack," he said solemnly. "I've just been briefed on the presence of Soviet nuclear rockets in Cuba. Neither side is backing down. Nobody wants war, but each side is calling the other's bluff. No one knows how this will turn out. Go home. Be with your families." We all left in a panic. Bazelon called me later that evening at home. "I have no faith in those Kennedy brothers and their friends. They're a bunch of spoiled brats—their fathers' children, he said contemptuously of Joseph Kennedy. I don't like them and I don't trust them. Look at the way they screwed up the Bay of Pigs. A bunch of arrogant amateurs." 51 EFTA01091023 4.2.12 WC: 191694 Early the next morning, he called me back. "I've spoken to Abe Chayes," he said referring to a Harvard Law professor who was then serving as legal counsel in the State Department. "He's a bit more optimistic that cooler heads will prevail. Come into work." So off I went to the courthouse, where Bazelon gave us hourly updates on the Cuban Missile Crisis until it was resolved by a deal. "I misjudged those Kennedy boys," he told me when the crisis was over. "Abe tells me they did good. Much better than Bay of Pigs. They were actually quite mature. They're quick learners. They did good." Just a few weeks into my clerkship, Justice Felix Frankfurter resigned from the Supreme Court, leaving the so-called "Jewish seat" vacant. Judge Bazelon was on the short list, along with Senator Abraham Ribicoff and Labor Secretary Arthur Goldberg. Ribicoff and Goldberg were close friends of Bazelon. All three wanted the job, but Bazelon was regarded as too liberal, especially on criminal justice matters, and was strongly opposed by Justice Department officials. I vividly remember the day Goldberg was nominated. "Arthur will be a great justice, if he has the sitzfleish to stay on the bench," Bazelon told me. "He's used to the active life of the labor lawyer. Always in the middle of the action. He's going to have to get used to the isolation, but he's smart as hell, and he's always wanted to be on the Supreme Court." Clearly Bazelon was disappointed but he knew it would have taken a miracle to overcome the objections of the Justice Department, and he didn't have close connections to the Kennedys. "Good for you. Not so good for me. And good for the country," is how he summarized the appointment to me a few days later. Good for me, because the new justice would certainly consider a recommendation from his old Chicago friend, when picking his next year's law clerks. I immediately began to dream of clerking for the new justice when I completed my year with Bazelon. Judge Bazelon became Chief Judge soon after I began working for him and dominated that important court of appeals-second only to the Supreme Court—during his long tenure. His rival—both professionally and personally—was Judge (later Chief Justice) Warren Burger. Bazelon was deeply committed to equality in the criminal justice system—between rich and poor, white and black, and mentally sound and mentally ill. These passions brought him into constant conflict with the executive and legislative branches of government, and especially with prosecutors. He knew he could never win his battles by relying on current public opinion, which showed little compassion for those who came into conflict with the criminal justice system. His weapons were education and elite academic opinion. His goal was to change minds through his opinion writing, speeches and articles. He chose his law clerks based on their ability to assist him in these tasks. "Every case presents an opportunity to change minds, to teach, to influence," he would say. "The court is a bully pulpit and we must make the most of it." His favorite story was about the New York judge who complained, "Why does Cardozo always get the interesting cases," referring to the great New York Court of Appeals Chief Judge (later Justice) who transformed tort law and other parts of the legal landscape with his elegant and influential opinions. The point, of course, is that the cases weren't at all interesting until Benjamin Cardozo got his hand—or pen—on them. He turned mundane legal 52 EFTA01091024 4.2.12 WC: 191694 controversies, such as a railroad accident or a conventional contract dispute, into monumental legal decisions. Judge Bazelon did the same with regard to criminal cases, especially those involving defendants who could not afford an adequate defense and those with serious mental illnesses. He would ask his clerks to scour the records of cases—even those not assigned to him—for evidence of injustice. He told me that most indigent defendants—and most defendants in DC were indeed indigent—did not have adequate lawyers: "You're their lawyer of last resort," he would tell me. "Search the record for errors. Tell me if you find any injustices." "But the case isn't even before you," I would protest, or "there were no objections and so the issues aren't properly preserved for appeal." "No matter. We will find a way to secure justice. Your job is to find injustices. My job is to figure out a way to bring about justice." He told me about a conversation between the great Justice Oliver Wendall Holmes and one of the justice's law clerks (who were called "secretaries"). After the justice rendered an opinion denying relief to a morally deserving litigant, the clerk complained, "But Mr. Justice, the result in this case is unjust." To which Holmes reportedly responded: "We're in the law business, young man, not the justice business." David Bazelon was in the justice business, though he used the law—sometimes stretching it beyond existing precedent—to bring about what he regarded as a just result. He was a "judicial activist", at least when it came to doing justice to the poor, the disadvantaged and the sick, and proud of it. That catch phrase had not yet become a term of opprobrium, as it has to so many today. I was proud to assist my activist judge and eagerly pursued my assigned task of searching for injustices. I recall telling Bazelon, who was Jewish but not well educated in Jewish religion tradition, that the Torah commands not merely that we be just, or even that we do justice, but rather that we actively pursue justice, as if injustice never rests. The exact words of Deuteronomy—which I recalled because I recited them in my Bar Mitzvah portion—were "Justice, justice, you must actively chase after." The traditional translation "pursue" doesn't quite capture the essence of the Hebrew words, "Tzedek, Tzedek, Tirdof," since "Tirdof," comes from the root that means to run or chase after. Bazelon asked me to make a sign for his office with these words, in Hebrew and English. He quoted them frequently in defense of his activism. They became his mantra, as they have become mine. The sign now hangs in my office. Another example of the good that has come from my not-so-good Jewish education! The other good lesson—this one taught by Bazelon to me by example—was that justice requires some degree of compassion. 53 EFTA01091025 4.2.12 WC: 191694 When I told Bazelon about the justice quote from the Torah, he asked me why the word justice was repeated. Wouldn't it have been enough to say "justice you must actively chase after." "Why `justice, justice.'" No word, or even syllable of the Torah is supposed to be redundant. Every one has a meaning. I told Judge Bazelon that the rabbis had a field day providing interpretation to the repeat of justice. My favorite, the one I had proposed in my Bar Mitzvah speech, was that the first "tzedek" meant legal justice, while the second meant compassionate justice. Judge Bazelon corrected me: "Compassion must come before the law. The first means compassionate justice, the second legal justice." Whichever came first in Judge Bazelon's court, every decision that he wrote or joined combined elements of both. His compassion wasn't always appreciated, even by its objects. Judge Bazelon once showed me a letter he received from his most famous defendant, a man named Monte Durham. Durham was the defendant in the case in which Bazelon announced his innovative approach to the insanity defense in the form of a new rule called "The Durham Rule" that declared a person to be legally insane, and thus not guilty, if his crime was "the product" of a mental disease or defect. This controversial rule revolutionized the relationship between law and psychiatry. The letter from Monte Durham complained about the rule bearing his name. "Now everyone calls me `Durham the Nutcase.'" He noted that when doctors discover a new disease, they name it after themselves and not after the patient. He wondered why the new rule wasn't called "The Bazelon Rule" instead of the "Durham Rule!" Bazelon apologized to Durham and noted that if judges could name new rules after themselves there would be too many new rules. Judge Bazelon and I were a match made, if not in heaven, at least in legal nirvana. I learned a lot from him and even taught him a little. We remained lifelong friends, though the year of clerking was more like hell than heaven, at least as regards to working conditions. Bazelon was never satisfied. He never told me that a draft opinion or article was good. It always needed to be "made better." "It's getting there" or "it's close," was the highest compliment he ever paid. But when it was done and published, and colleagues complimented him on the finished product, he would always give me credit. But never to my face. I always had to hear it from others. He was beyond a perfectionist. He knew his opinions would be read by generations of law students, professors, lower court judges and assorted critics. He was on a never-ending mission, and nothing was ever good enough. Even if it was good enough to publish or deliver because of artificial deadlines, it was never quite good enough for David Bazelon. But the long hours, demanding boss and difficult working conditions were well worth it. Law clerks who endured this trial by fire went on to great careers. Former Bazelon clerks include the deans of Harvard and Yale Law Schools, the President of New York University, the former Chancellor of the New York City school system, a prominent reform rabbi, numerous law professors, lawyers and business and political leaders. He influenced us all, and his influence continues in the work that many still do. As Peter Strauss, a law professor at Columbia once aptly characterized the relationship between Judge Bazelon and his clerks: "He the pebble, we the ripples." The primary job of the law clerk related to the appellate cases that came before the United States Court of Appeals for the District of Columbia. In the years I was a clerk, that court served not only as a federal appellate court, but also as the Supreme Court of the District of Columbia, a reasonably sized city with a racially mixed population and a relatively high violent crime rate. Many of our cases involved very high level appeals relating to federal administrative agencies- 54 EFTA01091026 4.2.12 WC: 191694 the so called "alphabet agencies"-such as the FCC, FPC, SEC and FDA. The rest were run of the mill criminal cases—murder, robbery, rape, assault and other street crimes. It was a perfect combination for a budding law professor who was interested in constitutional and criminal law. Our task began with a case record, which consisted of the appellate briefs filed by the lawyers and an "appendix," which included relevant excerpts from the trial transcript and motions filed before the trial court. Some records were relatively short, perhaps 300 pages in total. Others were humongous, as many as 5,000 pages. Then there was the complete trial transcript—a verbatim account of every word spoken during the trial, as well as during the pretrial and post- trial proceedings. Judge Bazelon would often ask me to read the entire transcript in search of errors or particular issues that were of interest to him. When we completed the review, we would discuss the case with the judge, who had read the briefs and perused the appendix in preparation for the oral argument in court. Occasionally, we were permitted to listen to the oral argument, especially when leading lawyers were arguing (which was rare), or when issues close to the judge's heart were being considered. But generally, we were required to remain in the chambers working while the judge presided over the oral argument. Since Bazelon was the Chief Judge, he always presided and got to assign the opinion to one of the three judges on a panel (or nine when on rare occasions the entire court heard the case "en banc"). Following the oral argument, there was a conference among the judges during which a tentative result was reached and the case assigned. Bazelon always assigned the most interesting cases to himself, or to a judge whose decisions he wanted to influence. When the conference was over and the case assigned, we would meet with the judge and he would tell us which clerk was to work on the opinion. I always got the interesting cases (at least the ones that interested the judge). My co-clerk, who the judge didn't much like, got the dregs. This was fine with him, since he didn't much like working closely with the judge. Then the real work would begin. Draft after draft was submitted, marked up by the judge and rejected with the admonition, "You can do better," or sometimes "start over, this draft isn't right." After many drafts, and some pressure from the other judges on the panel, the opinion was released to the public. Generally, they were majority opinions, often unanimous, but frequently they were dissenting or concurring opinions. This was a deeply divided court and the dissenting opinions pulled no punches in criticizing the majority, and vice versa. At the end of the year, the clerks would prepare bound volumes of all the opinions we worked on during our clerkship. One was given to the judge and the others to us, as mementoes of our year. As I write these words, I have in front of me the maroon volume engraved with the following words: "Chief Judge David L. Bazelon Opinions 1962-1963 55 EFTA01091027 4.2.12 WC: 191694 Alan M. Dershowitz, Law Clerk" It is a treasured possession. A year in the life of! And what a year it was. My first case involved a man named "Daniel Jackson Oliver Wendell Holmes Morgan"—Quite a name! Any lawyer would be proud to have been named after. "Daniel Webster," "Andrew Jackson" and "Oliver Wendell Holmes." That's what Mr. Morgan thought too. The only problem was he wasn't a lawyer and that wasn't his name! He was an uneducated, but slick, African American man whose parents were sharecroppers and who made his way to the District of Columbia, where he apparently bought a dead lawyer's bar certificate in a junk shop. He started to practice law, and he did extremely well, beating real prosecutors in several cases involving street crimes. For more than a year, he went to court and argued to juries and judges. His reputation spread in the downtown area, as he kept winning difficult cases. Ultimately the feds checked him out, discovered that despite his name, he wasn't a lawyer, and charged him with multiple counts of fraud, forgery, impersonating an officer of the court and false pretenses. He represented himself at trial, was convicted and sentenced to 3 to 10 years in prison. The court appointed a lawyer named Monroe Freedman to argue his appeal. Judge Bazelon invited me to watch the oral argument. I was blown away by Freedman's eloquence, erudition, command of the record and ability to further his argument while responding to hard questions. I had participated in moot court appeals as a law student, and I had done very well—even earning a job offer from one of the judges who was a partner at a Jewish law firm. But this was a different league. I remember thinking "I want to be like this guy," and wondering whether I could ever be that good. The lawyer for the prosecution was also quite good, though not up to Freedman's high standards. He was an African American named Charles Duncan, who, I later was told, was the son of the singer Todd Duncan, who had played "Porgy" in the original Broadway run of the Gershwin opera. Following the argument, the judges conferred and unanimously decided to affirm the conviction. I was upset, because Freedman had clearly "won" the argument and had certainly convinced me that his client deserved a new trial, or at least a reduction in the sentence. I pleaded with Bazelon to let me try to draft an opinion reversing the conviction. He said, "go ahead," because he too was somewhat sympathetic to the defendant. "But you must find a valid legal basis for reversal. It's not enough that the defendant's lawyer was better than the government's lawyer. Nor is it enough that we think the defendant should get relief. There has to be a solid legal basis. Go ahead and look for one." I searched and searched, but Freedman had mined every possible nugget from the sparse record and to no avail. There was no plausible legal basis for reversal. I learned several important lessons from this exercise in futility: there's an enormous difference between winning an appellate argument and reversing a conviction; there's an equally significant difference between wanting to see a conviction reversed and finding a valid basis for reversal; all the hard work in the world cannot bring about a result if the facts and the law don't justify it. (At least that's what I believed until such cases as Bush v. Gore, of which more later.) 56 EFTA01091028 4.2.12 WC: 191694 Subsequently, I later learned a series of related lessons that parallel the above: even when there is a firm basis for reversal, a bad job of lawyering will not bring it about in most cases; a court that is determined to affirm a conviction—because they don't like the defendant or for some ideological reason—will not be convinced even by the most compelling arguments and the most egregious record; without hard work, many of the most persuasive reasons for reversal are never uncovered. I learned these lessons later, because in Judge Bazelon's court, the judge and the law clerks often did the jobs that the lawyers were supposed to do. Not in the case of Daniel Jackson Oliver Wendell Holmes Morgan, because his lawyer, Monroe Freedman, had done all the hard work and made all the plausible arguments. Eventually Freedman and I became friends and colleagues, and he went on to become Dean of Hofstra Law School and one of the nation's leading experts in legal ethics. I tried to follow in his large footsteps but I'm not sure I ever made as good an oral argument as he did in the Morgan case. It was quite a way to begin my career as a law clerk. The remaining cases during my year were in many ways representative of the Supreme Court's future docket during the haydays of the Warren Court. Many dealt with the rights of indigent defendants—an issue that came to the fore in the Supreme Court's decision in Gideon versus Weinright, decided toward the end of the year of my Bazelon clerkship. That decision ruled that every indigent criminal defendant in a serious case had the right to appointed counsel. The opinions of Judge Bazelon over the years had the laid the foundation for this decision and several of them were cited in the briefs filed by his friends Abe Fortas and Abe Krash, who had been appointed to Represent Gideon. (My friend John Hart Ely was working for the Fortas firm during the summer the briefs were being prepared and I reviewed and edited several drafts with John.) Bazelon's opinions—more often dissents than majority—had established the conceptual framework for a broad-based claim of equality in the criminal justice system. He had gone considerably further than the Supreme Court would ever go in seeking to assure that indigent defendants were treated no differently from wealthy ones. Many of the cases my year dealt with this issue. Other cases dealt with the pervasive problem of police perjury—today it's called "testilying"15— especially in the context of searches and interrogations. If a search or interrogation is found to be unconstitutional, its fruits are generally excluded, even if they would conclusively prove the defendant's guilt. Not surprisingly, many police officers (as well as prosecutors) hate these "exclusionary rules" and do whatever they can to circumvent them. Some policemen even resort to perjury, occasionally assisted by prosecutors in making their "testilies" fit the law. I was shocked when Judge Bazelon first told me about this phenomenon. We didn't learn about this dark side of the law at Yale, and at first I was skeptical. But then when I read case after case in which police officer—often the same ones from the same drug unit—would give essentially the same scripted testimony, I began to believe it. Bazelon had no patience for testilyers, for the prosecutors who coached them, or for trial judges who pretended to believe their obvious lies. He would call them on it, much to the chagrin of IS See Reasonable Doubts, Best Defense 57 EFTA01091029 4.2.12 WC: 191694 some of his fellow judges, especially Warren Burger. Sparks would fly and Bazelon generally ended up in dissent, but he had made his point. Years later, in my first popular book, The Best Defense, I summarized what I had first seen in Judge Bazelon's chambers and had then experienced in several cases I had litigated as a practicing lawyer. I called my summary "The Rules of the Justice Game:" Rule I: Almost all criminal defendants are, in fact, guilty. Rule II: All criminal defense lawyers, prosecutors and judges understand and believe Rule I. Rule III: It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution. Rule IV: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants. Rule V: All prosecutors, judges and defense attorneys are aware of Rule IV. Rule VI: Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants. Rule VII: All judges are aware of Rule VI. Rule VIII: Most trial judges pretend to believe police officers who they know are lying. Rule IX: All appellate judges are aware of Rule VIII, yet many pretend to believe the trial judges who pretend to believe the lying police officers. Rule X: Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth. Rule XI: Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime). Rule XII: Rule XI does not apply to members of organized crime, drug dealers, career criminals, or potential informers. Rule XIII: [Almost] Nobody really wants justice. The seeds of my career as a criminal lawyer were planted deeply into fertile soil during my clerkship. So were the seeds of my career as an academic who focused, early in my years at Harvard, on the relationship between law and the social sciences, especially psychiatry and psychology. 58 EFTA01091030 4.2.12 WC: 191694 One of the most intriguing cases during my year with Judge Bazelon began as an ordinary pick pocketing of a wallet containing $14. Based on the sparse evidence, "the jury could have inferred either that the wallet was picked from [the alleged victim's] pocket, or that it was accidentally dropped from his pocket and was picked up by someone who ran off with it."16 The judge instructed the jury that there is a legal presumption that a defendant's "flight may be considered by jurors as evidence of guilt." There was no dispute that the defendant did flee when confronted by the alleged victim shouting , "Hey, that's my wallet. Give it back to me." But of course the defendant might well flee even if he simply picked up a dropped wallet and didn't want to return it. Such an action would be immoral and perhaps even minimally criminal—the misdemeanor of failing to return a found wallet, for which he had tol been charged. But the defendant here was charged with the felony of robbery. The jury convicted him of robbery and the judge sentenced him to prison for two to six years. When the case came across my desk, I saw it as an opportunity to use my law school background in psychiatry and law—I was working on a casebook with two of my law school professors on "Psychoanalysis, Psychiatry and the Law"—to reverse what appeared to be a possibly unjust conviction. The great legal commentator Wigmore had written the following about evidence of guilty feelings: "The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. The innocent man is without it; the guilty man usually has it. Its evidential value has never been doubted. The inference from consciousness of guilt to "guilty" is always available in evidence. It is a most powerful one, because the only other hypothesis conceivable is the rare one that the person's consciousness is caused by a delusion, and not by the action doing of the act."17 This view had become the accepted wisdom by lawyers, judges and professors and was the basis for the judge's instructions to the jury in the pick pocketing case. I found it highly questionable, especially in the context of the facts of the case. In an effort to support my conclusion that the defendant's flight in this case was equally consistent with the legally innocent explanation that he was fleeing to avoid returning a dropped wallet, or the guilty explanation that he was fleeing from a pick pocketing crime, I introduced a quote from Sigmund Freud: "You may be lead astray...by a neurotic who reacts as though he were guilty even though he is innocent—because a lurking sense of guilt already in him assimilates the accusation made against him on this particular occasion. You must not regard this possibility as an idle one; you have only to think of the nursery where you can often observe it. It sometimes happens that a child who has been accused of a misdeed denied the accusation, but at the same time weeps like a sinner who has been caught. You might 16 Miller v. US (June 14, 1963) 17 Centuries early, the Jewish scholar Maimonides had provided a more nuanced psychological insight. [quote] 59 EFTA01091031 4.2.12 WC: 191694 think that the child lies, even while it asserts its innocence; but this need not be so. The child is really not guilty of the specific misdeed of which he is being accused, but he is guilty of a similar misdemeanor of which you know nothing and of which you do not accuse him. He therefore quite truly denies his guilt in the one case, but in doing so betrays his sense of guilt with regard to the other. The adult neurotic behaves in this and in many other ways just as the child does. People of this kind are often to be met, and it is indeed a question whether your technique will succeed in distinguishing such self- accused persons from those who are really guilty. In addition to citing Freud and dozens of other psychological sources, I also invoked my favorite novelist, Dostoevski, noting that in the Brothers Karamazov: "the author describes how Ivan—the brother who had desired death of the father but had not perpetrated the act—manifests all the traditional symptoms of guilt described by Wigmore, whereas the actual murderer reacts in a cool dispassionate way, consistent— according to Wigmore—with innocence." Judge Bazelon approved of my somewhat sophomoric display of erudition, so long as at least one other judge agreed to reverse the conviction and order a new trial with a proper instruction on flight and guilt.' 8 Judge Fahey did agree, while writing a short concurrence. Judge Burger wrote a scathing dissent—arguing that our proposed instruction "may be appropriate to a philosophical interchange between judges, lawyers and experts in psychology...but was unnecessary to a jury." Judge Bazelon assured me that Burger's dissent "proves we're right." All in all the Bazelon clerkship proved to be a turning point in my life. He helped shape me into the person I have become. He influenced me as a lawyer, teacher, writer, public intellectual and as a liberal Jew. His highest praise for any person was that he or she "is a mensch." I have aspired to that accolade. When Judge Bazelon retired in 1985, I wrote the following about his contributions to our nation: David Bazelon is certainly not a household name to most Americans. Yet Judge Bazelon—who just retired after thirty six years of distinguished service on the US Court of Appeals for the District of Columbia—has been your conscience in Washington since 1949. Is The new instructions were to follow these principles: "When evidence of flight has been introduced into a case, in my opinion the trial court should, if requested, explain to the jury, in appropriate language, that flight does not necessarily reflect feelings of guilt, and that feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. This explanation may help the jury to understand and follow the instruction which should then be given, that they are not to presume guilt from flight; that they may, but need not, consider flight as one circumstance tending to show feelings of guilt; and that they may, but need not, consider feelings of guilt as evidence tending to show actual guilt." 60 EFTA01091032 4.2.12 WC: 191694 No single judge—whether on the Supreme Court, the lower federal courts or the state courts—has had a more profound impact on the law's sensitivity to human needs. As a judge, he saw the enormous disparities between how the wealthy are treated in court and how the poor are mistreated. Although he provided few final answers, he pricked the conscience of a nation, and he goaded the US Supreme Court into action in several cases.... I pointed out that no student can go through a three-year course at any major law school without studying the life work of David Bazelon—and I predict that this will be true well into the next century. The reason for Bazelon's continuing impact is that his primary role—as he saw it—was to raise enduring questions, not to provide transient, trendy solutions. He saw the role of the courts-especially the intermediate appellate courts, such as the one he served on—as uniquely capable of raising questions and directing them at the Supreme Court, the lower District courts, the legislatures and the executives. Bazelon was at his finest when he threw the ball back at government officials, making them think hard, reconsider and question their own programs and political solutions. Over my own career, I have certainly not been known for effusively praising the judiciary. Indeed, part of the reason I have been so critical of so many judges is that I learned at the feet of one who set a tone and provided a model that few can meet. Perhaps in that respect Bazelon has made me too tough a critic of others. I know he would be proud of having provoked hard questions, even about the judiciary that he loves. Several years after retiring, David Bazelon called to inform me that he had early stage Alzheimer's, a disease that also afflicted my father. I visited with David all through his illness, often with his closest friend Bill Brennan. We would take David on walks, reminisce with him and tell him stories. I remained his law clerk until he died at age 93. My clerkship with Justice Arthur Goldberg was, in many ways, more exciting than my clerkship with Judge Bazelon. It was, after all, on the Supreme Court, where nearly every case made headlines. During my Goldberg clerkship, President Kennedy was assassinated, Lee Harvey Oswald was killed, and Lyndon Johnson ascended to the oval office. Many transforming decisions were rendered in areas as wide-ranging and important as desegregation, freedom of the press, the rights of criminal defendants, the law of obscenity, the death penalty and trial by jury. Yet, in a more personal way, my second clerkship was somewhat anticlimactic. I learned far more during my year on the court of appeals than during my year on the High Court, in part because Judge Bazelon was such a remarkable teacher and in part because it was my first exposure to the judiciary in action. This is not to diminish the impact Justice Goldberg had on my life. It too was profound and enduring. The major difference was that Justice Goldberg, who 61 EFTA01091033 4.2.12 WC: 191694 saw me as a protégé, had a specific life plan for me: he wanted me to follow in his footsteps. He saw my professional life unfolding in parallel to his. He wanted me to work in the Kennedy administration. Indeed he arranged for me to become an assistant to then Attorney General Robert Kennedy—without even asking me! It was well intentioned, and it might even have been the right choices of jobs following the clerkships, but it was his choice, not mine. He wanted me to aspire to a judgeship, perhaps even as a Justice of the Supreme Court, but I never wanted to be a judge. (Neither, it turned out, did he, since he resigned from the Supreme Court after only 3 years.) Judge Bazelon, on the other hand, encouraged me to create my own unique career path and avoid the "cookie cutter" paths for which most elite young lawyers opt. "Don't follow in anyone's footsteps," he urged me. "Your feet are too big to fit anyone else's print. Create your own life. You are unique. Live a unique life. Take risks. Live boldly." It was scary, but it fit my personality to a T. Half way through my year with David Bazelon I was offered a clerkship with Justice Arthur Goldberg. I had also been offered a clerkship with Justice Hugo Black, but I strongly preferred to clerk for a new Justice whose views were not as firmly formed. I asked to see Justice Goldberg before I formally accepted his offer. I told him that I wanted him to know that I would not be able to work on Saturday or Friday night and asked him if he still wanted to extend the offer. He angrily replied, "I should withdraw the offer just because you asked me that ridiculous question. What do you think I am? How could I possibly turn down somebody because he is an orthodox Jew?" I apologized for asking the question, but told him that I had been previously been turned down by the firm of Paul Weiss, Rifkin, Wharton and Garrison. He said, "Paul Weiss turned you down because you were orthodox? I'm going to call my friend Si Rifkin. He won't let them get away with that." I sheepishly replied that it was Simon Rifkin who turned me down. (Years later, Arthur Goldberg was offered a partnership at Paul, Weiss and before accepting he insisted on being assured that what happened to his law clerk would never happen to another Orthodox Jew. Paul, Weiss now has many Orthodox Jews). Goldberg told me that my co-clerk was Christian and didn't work on Sunday, so he had assistance available to him seven days a week. Me on Sunday and my co-clerk Lee McTuman on Saturday. It worked very well, except that on one Saturday an emergency death penalty petition came to Justice Goldberg, and I was the death penalty specialist. So Justice Goldberg had his driver take him to my house in Hyattsville, MD, where he knew I would be, and we conferred on the case and he made his decision. A few months before I started my Supreme Court clerkship, my grandmother came to town and I took her and my son Elon, who was then 2 years old, to see the Supreme Court. We got permission to go to Justice Goldberg's chambers, but he was not there. His secretary, Fran Gilbert, invited me to take my grandmother and my son in to the Justice's private office to look at the paintings, which were all done by his very artistic wife, Dorothy. The new decorations in his office had just been finished and his secretary told me that Goldberg was proud of how nice they looked. My son, however, had no appreciation for the new rug and proceeded to leave a large yellow stain right in front of Justice Goldberg's desk. When the Justice finally came in I was on my hands and knees scrubbing the rug with soap, only making it worse. This time, he almost did fire me, but with my grandmother there he would have had a hard time. My 62 EFTA01091034 4.2.12 WC: 191694 grandmother did have an argument with him. She told him that she noticed that morning that I had davened (prayed) for only twenty minutes. "It takes at least a half hour," she said. "He's skipping. Tell him to take the full half hour." Justice Goldberg shook his finger at me and said, "Listen to your Grandmother." (Justice Steven Breyer, who succeeded me as Goldberg's law clerk, now sits in Goldberg's old office.) Before I knew I was to be selected by Justice Goldberg, I interviewed with several of the other Justices, including John Harlan, an elegant aristocrat whose grandfather had also served on the Supreme Court. He was impressed with my grades and my law review experience, but he gently asked me why I hadn't worked during the summer for one of the "Great Wall Street firms." I couldn't believe that he didn't know that the "Great Wall Street Firms" were not hiring Jewish kids from Brooklyn whose ancestors came over from Poland and who hadn't attended an Ivy League college. Harlan had himself been the senior partner in one of those firms, and I assumed that he was familiar with their bigoted hiring policies. I later learned from one of his Jewish law clerks — he hired many Jews to work for him when he was a judge — that Justice Harlan was probably oblivious to his firms hiring practices, or at least never really thought about them. Maybe! An interesting event marked a transition between my two clerkships. I began working for Justice Goldberg on August 1, 1963, just days before Martin Luther King delivered his "I have a dream" speech from the steps of the Lincoln Monument. A large rally was planned and I wanted to attend. But Justice Goldberg told me that Chief Justice Earl Warren did not want members of the judiciary—which included clerks—to be on the mall that day, because there might be violence and cases growing out of the violence might come before the courts. I really wanted to hear Martin Luther King speak and so I asked Judge Bazelon what I should do. "Come with me," he proposed. He and another judge were planning to go to the mall and listen from the rear, and off to the side, in relative anonymity. I went with them and heard—and barely saw—that remarkable speech (following several long winded speakers representing the groups that had organized the event.) I never told Justice Goldberg that I had disobeyed the Chief Justice order. 63 EFTA01091035 4.2.12 WC: 191694 My Year of Clerking For Justice Goldberg Justice Arthur Goldberg was a man of action. Before being nominated at age 54 to the Supreme Court by President John F. Kennedy, Goldberg had accomplished an enormous amount. Unlike most of the current justices, he would have been in the history books even had he never served on the High Court. Arthur Goldberg helped establish the profession of labor law. He represented the most important labor unions in the country. He helped merge the American Federation of Labor (AFL) with the Congress of Industrial Organizations (CIO). He helped rid unions of communist influence. He argued some of the most significant cases before the Supreme Court and other courts, including the Steel Seizure Case of 1951. He was, perhaps the most successful Secretary of Labor in history, settling one strike after another and being recognized as a legendary mediator. The Supreme Court is not a place of action, it is an institution of reaction—to cases and controversies generated by others. It is a place of thoughtful, often solitary, meditation and research. Justice Goldberg was used to working with many people. He was accustomed to crisis. His phone had always rung. When he arrived at the Supreme Court, as he once summarized the situation, "my phone never rings." The High Court is the loneliest of institutions. As Justice Brandeis once put it, "here we do our own work." The Justices only occassionally interact: on the bench, in the weekly, somewhat formal, conference; and in informal one-on-one meetings, which were rare then and even rarer today. It is fair to say that Justice Goldberg was somewhat lonely, often restless and craved the active life he had left behind. This is not to say that Justice Goldberg was not a serious intellectual. He was. He was also one of the smartest justices in history. He loved the Supreme Court. He loved the law. He loved having intense discussions with his law clerks about jurisprudence and the role of the Supreme Court. But he needed more than contemplation, deliberation and discussion. The "passive virtues," as Professor Alexander Bickel once characterized the Supreme Court's role in making decisions, was a vice to Arthur Goldberg. He wanted to get things done. He too was an unapologetic judicial activist. He came to the High Court with an agenda—a list of changes he wanted to help engender. I will never forget my first meeting with my new boss when I came to work in the Supreme Court during the summer of 1963. He tossed a certiorari petition at me from across his desk and asked me to read it in his presence. It was only a few pages long and I did. He then asked me, "What do you see in it?" I said, "It's just another pro se cert petition in a capital case." He said, "No, what you're holding in your hand is the vehicle by which we can end capital punishment in the United States." Abolishing the death penalty was the first item on his "to do" list as a justice. My major responsibility during the first part of my clerkship was to draft a memorandum supporting Justice Goldberg's views that the death penalty was cruel and unusual punishment in violation of the Constitution. He knew we had no chance of getting the majority to support that view—at least not yet—but he wanted to start a dialogue that would ultimately lead to the judicial abolition of the death penalty. He decided to focus first on an interracial rape case 64 EFTA01091036 4.2.12 WC: 191694 involving an African American defendant and a white victim, since almost no whites had been executed for raping Blacks, but many Blacks had been executed for raping, or even assaulting, white women. I recount this story in greater detail in the chapter on the death penalty. For now, suffice it to say that he knew that the key Justice would be William Brennan, since if liberal Brennan would not go along with him he had no chance of beginning any meaningful dialogue. Since I had done all the research, he assigned me the delicate task of trying to get Justice Brennan to join our opinion. It was a daunting task for a 24-year-old law clerk to persuade a Justice of anything, but I went in to see Justice Brennan and he listened to me politely without committing himself. Eventually he did join Justice Goldberg's dissenting opinion and the dialogue was begun. Within less than a decade, it resulted in the judicial abolition of capital punishment, but soon thereafter in its resurrection of the "game" of two steps forward, one step backward is still ongoing. My conversation with Justice Brennan marked the beginning of what developed into a lifelong friendship and mutual admiration society. One of my great treasures is a handwritten letter from the justice in 1982 that includes the following: "There are winds swirling these days that too few resist---it's a comfort to know that outside there are steadfast champions who are putting up a gilliant fight. You are first among them and that's a matter of special pride for those of us who have followed your career with increasing satisfaction." [check quote] As I write these words, the death penalty is now deemed constitutionally permissible, at least for certain crimes, though I am convinced that Justice Goldberg's "pet project" marked the beginning of what will be its ultimate demise in the United States. Justice Goldberg's "pet project" and the way he sought try to implement it, tells us much about the man and his relationship to his law clerks, but it doesn't tell us everything. He regarded his "one year clerks" as "law clerks for life." After I completed my clerkship, Justice Goldberg continued to give me assignments, ranging from helping him pick future clerks and assistants, to editing his speeches and articles, to helping him draft resolutions at the United Nations (most notably Security Council Resolution 242, following Israel's victory in the Six Day War of 1967), to assisting in his campaign for Governor of New York. He called me for help, advice and just to "schmooze" about the state of the world until his death at the age of 81. Even while he served on the Supreme Court he took an interest in his law clerks and their intellectual development. He included us in his weekly Friday afternoon lunches or teas with noteworthy people. When such people came to visit the justice, he always introduced us and encouraged us to sit on part of the discussion. Knowing that I was interested in Israel, he invited me to meet the Israeli Ambassador to the United States, Avraham Harmon as well as visiting Israeli public officials. When I went to Israel in 1970 he asked me to smuggle a carton of Lucky Strike cigarettes to Israel's Prime Minister Golda Meir, who he had known from their earliest Zionist days together in the Midwest. 65 EFTA01091037 4.2.12 WC: 191694 Since Justice Goldberg had very few clerks—he served only three terms—he was able to remain close to all of us. He invited us to his famous Passover Seders, where he and his wife Dorothy sang labor and Zionist songs from their youth. When he moved to New York, he attended High Holiday services with my family in Brooklyn. The Lyon's Den, a popular New York gossip column, carried the following vignette: [C] He was close to each clerk in a different way, following our careers, advising us on life choices and encouraging us to "do great things." Three months after I started working for Justice Goldberg I was in his secretary's office while she was talking on the phone to her husband who was an officer in the U.S. armed forces. I think he had something to do with communications, because he told her that shots had been fired in Dallas. We turned on a small television set that had been in my cubicle ever since the World Series a couple of months earlier. Nothing was yet on the news. A few minutes later everyone in the world knew that President Kennedy had been shot. It was a Friday morning and the nine Justices of the Supreme Court were in their weekly private conference, which no one, except for the Justices, was allowed to attend. There were no secretary, clerks or messengers. I had been given strict instructions never to interrupt Justice Goldberg during one of these conferences, but I knew this was an exception. And so I went to the door of the private conference room and knocked. Justice Goldberg, being the junior Justice, answered the door and gave me a dirty look, saying, "I told you not to interrupt me." I said, "Mr. Justice, you are going to want to know that the President has been shot." Several of the Justices immediately gathered around my little television set which, it turned out, was the only one in the entire Supreme Court building. We watched, as the news got progressively worse, finally leading to the announcement that the President was dead. The Chief Justice asked all of the Justices to disperse for fear that there might be a conspiracy involving attacks on other institutions. The clerks stayed behind to finish the court's business. The following night, right after the Sabbath was over, Justice Goldberg asked me to pick him up and drive him to the White House. He was closely connected both to the Kennedy family and to Lyndon Johnson, and the new President wanted his advice. I picked up the Justice in my old Peugeot, which was filled with children's toys. I drove him to the White House gate. Goldberg asked me to wait for him, since the meeting would be relatively brief, and drive him home. When the White House guard looked into the car, he immediately flung the back door open and grabbed a toy plastic gun. Nerves were pretty tense. He wouldn't let me wait inside the White House gate, so I had to wait outside until the Justice returned. I also drove him to the funeral and was with him when the news came over the radio that Lee Harvey Oswald had been shot. Goldberg exclaimed angrily, "What kind of a country are we living in!" Shortly thereafter, Chief Justice Earl Warren told the Supreme Court staff and employees that he was becoming Chairman of the newly formed Warren Commission. I asked Goldberg why he would do that. Goldberg told me something, which only in retrospect became clear. He said that the President had asked him to perform a patriotic duty and to convince the American public that the act was that of a lone gunman, and not a conspiracy by the communists. Warren agreed because he did not want to allow any excuses either for a return of McCarthyism or for military hostilities between the Soviet Union and the United States. I later learned that Lyndon Johnson personally believed that there was a conspiracy behind the Kennedy assassination, but 66 EFTA01091038 4.2.12 WC: 191694 handpicked the Warren Commission to assure that even if the evidence pointed in that direction, it would be covered up in the interest of national security. Another controversial issue during my year on the Supreme Court was obscenity. I recall Justice Goldberg coming back from a screening of an allegedly obscene movie called "The Lovers" and saying "That damn movie ought to be banned, not for obscenity, but for fraud. There were no good dirty parts." There was another case involving a dirty book called Fanny Hill. The book was not included in the record, but Justice Goldberg wanted to read it. He was embarrassed about going to a bookstore and buying it himself, so he asked me to go and buy a copy of the book, but not to read it. Hah! Some people think that Goldberg was bored on the Supreme Court. He was used to his phone ringing all the time. The truth is that his phone rang all the time he was on the Supreme Court. He always had visitors and guests. He lived a very hectic life. Sometimes the guests were unwelcome. I remember one situation where a man knocked at the door of Justice Goldberg's chambers (in those days, anybody could walk into the chambers; today, that is impossible). He told me that he had met Justice Goldberg and that he knew that the Justice was making a great financial sacrifice to serve on the Supreme Court. He was starting a foundation, he told me, to help people make the transition from lucrative private life to low paying government jobs, and he would like to offer the Justice the opportunity to have his salary supplemented. When I told the Justice the story, he told me to `Throw the bum out." The "bum" turned out to be Louis Wolfson, a man facing stock fraud charges, who later made a similar offer to Justice Fortas. Justice Fortas accepted the offer and lost his seat on the Supreme Court as a result. Justice Goldberg was far more scrupulous. One day he received a basket of fruit. I don't remember if it was for Hanukah, Christmas or a birthday. But he immediately looked at the card and saw that it was from Katherine Graham, the publisher of the Washington Post. The important case of New York Times v. Sullivan was then pending before the Supreme Court. Goldberg insisted that we immediately send the basket back. I told him that I had eaten a banana from it. He insisted that I go to the fruit store and buy one to replace it before having the basket returned. Justice Goldberg was a deeply ethical, but only marginally religious, man. He did not attend synagogue regularly, though he was very active in numerous aspects of Jewish public life. Every year he had a Passover Seder, to which he invited all the Washington luminaries. When I was his law clerk, he invited me and I gladly accepted. Knowing that I was strictly kosher, he arranged to have the entire Seder dinner catered by an expensive kosher caterer. At the last minute, my mother forbade me from attending a Seder other than hers, and I had to decide whose views trumped, a Justice of the Supreme Court or a Jewish mother. I don't have to tell you who won, and Justice Goldberg remained angry with me for months, saying, "All those people had to eat catered kosher food because of you, while you ate your mother's home-cooked food." Shortly after I received the offer to clerk with Justice Goldberg, my second son Jamin was born. Since we did not know many people in Washington, we asked for a recommendation for a mohel - - the man who performs the ritual circumcision. His name was Goldberg. We duly entered his name in our address book. One night I called him to discuss the upcoming bris. A man 67 EFTA01091039 4.2.12 WC: 191694 answered the phone and I inquired, "Mr. Goldberg?" He replied, "Who is this?" I said, "Is this Mr. Goldberg the mohel?" He replied, "No, this is Mr. Goldberg the Justice." I quickly apologized and addressed him as Mr. Justice Goldberg. I still don't know the appropriate way to address a mohel. One day while he was hearing arguments, and I was working in the office, I received a note from the Justice asking me whether it was required under Jewish law that an orthodox woman always wears a hat, even while arguing a case in the Supreme Court. The Supreme Court had a rule prohibiting wearing any head covering. But Goldberg was willing to insist that there be an exception if there was a religious obligation. I wrote back saying that there was such a rule for strictly orthodox women. He wrote back asking me to come into the courtroom, which I did. When I got there I looked at the offending hat. Just as I did so, I got another note from Justice Goldberg saying is there anything in Jewish law that requires a woman to wear such a big ugly hat. I assured him that there was not. Nonetheless they made an exception, but Justice Goldberg told me to discreetly inform the woman that next time she argues, she should wear a smaller hat. Justice Goldberg also asked my advice about whether he should sit on the opening day of Court, which fell on Yom Kippur, the holiest day of the Jewish calendar, during which all work is prohibited. I looked at the calendar of cases to be argued that day and noted that there was a capital case. I told him that Jewish law permitted violation of nearly all religious precepts if human life was at stake and recommended that he call the rabbi of his congregation. The rabbi confirmed my view and told him to sit only on that case. He did and helped save the life of the condemned man. The Supreme Court had a small basketball court on the fifth floor. The clerks called it "The Highest Court in the Land," since it was directly above the Supreme Courtroom itself. Rumor had it that in previous years the clerks used to play basketball while the Justices were hearing arguments, and the sound of the bouncing ball could be heard through the ceiling of the Court. A rule was established therefore prohibiting the playing of basketball during Court sessions. By the time I got there the games were in early evening, and occasionally Justice White, who had been a former professional football player, participated. As a basketball player, White was a great football player - - not much finesse, but lots of elbows. I played only occasionally, but was there once when Justice White was in a game. He boxed me out for a rebound and, in the process of grabbing the ball, hit me in the face with his elbow. I instinctively yelled, "That's a foul, damn it!" to which I quickly added, "Mr. Justice." I was overruled by His Honor. According to historians of the Supreme Court, the 1963-64 term was among the most significant and innovative in the history of the American judiciary, and Justice Goldberg was at the center of the action. He assigned me to draft the famous Escobedo opinion, which changed the law of confessions and led to the even more famous Miranda decision. Escobedo was suspected of killing a relative and he was interrogated without his lawyer being present, even though his lawyer was in the police station, trying to advise him on his right to remain silent. I penned the following words that became an important part of my legal philosophy throughout my career: We have...leamed the...lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' 68 EFTA01091040 4.2.12 WC: 191694 abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. The theme of this paragraph — the right to know of one's rights — has pervaded my thinking and teaching. During that term, I also drafted opinions-some majority, some concurring, some dissenting—on trial by jury, freedom of speech, desegregation, reapportionment, immunity and other important and changing areas of the law. There could be no better foundation for the next phase of my career—teaching law students at the nation's largest and most prestigious law school, Harvard. Before I leave the Supreme Court, I must recount one vignette regarding Justice Goldberg that caused me considerable disappointment. One of the great villains of the day to all liberals was J. Edgar Hoover, the head of the FBI. On several occasions, I let my negative views about Hoover be known to Goldberg, but he never said a word. I didn't understand why. A few years later, I asked Bazelon, who smiled, and said "I probably shouldn't tell you, but it's important for you to know that there are no perfect heroes." He continued, "Hoover and Goldberg got along well, because when Goldberg was the lawyer for the labor movement, he worked hard to rid the C.I.O. of Communist influence." I asked whether that meant he informed on Communist with the Union. Bazelon replied, "I wouldn't use the word informed, but he worked closely with Hoover on a common goal: to rid the C.I.O. of Communist influence." Bazelon then told me that Thurgood Marshall had played a similar role with regard to the NAACP—trying to cleanse it of Communist influences." "That's how Thurgood and Arthur made it to the Court. If Hoover had opposed them, they might not have been appointed." I was shocked. "But there have been other liberals appointed as well," I insisted. "Yes, Douglas, but he was Joe Kennedy's boy, and Hoover liked Joe Kennedy, at least back in the day when Douglas was appointed. With Hoover, it wasn't so much what you believed as were you with Hoover or against him." "What about Justice Brennan?," I asked. "Bill was an accident, an Eisenhower mistake. They didn't know he would be so liberal. Eisenhower regarded Warren and Brennan as his worst mistakes." Bazelon then paused and said he would tell me something else, if I promised to keep it a secret until Goldberg and Marshall were both dead. I promised. "Hoover had something on both of them." 69 EFTA01091041 4.2.12 WC: 191694 "What?" I asked. "Goldberg apparently had a brief `friendship' with some European woman who may have been a Russian spy. Hoover covered it up." "What about Marshall?" "Thurgood had a drinking problem that got him into some sexual trouble. He went into therapy and Hoover gave him a pass." I asked Bazelon how he knew, and he told me that Marshall had sought his advice about a therapist and that the Goldberg story was well known among his close circle of friends. I was deeply disappointed, but the new information didn't diminish my respect for the two giants of the law. It did confirm my belief that there are no heroes without clay feet. It also confirmed my belief that J. Edgar Hoover was among the most powerful and dangerous forces in Washington. About a year after I finished my clerkship with Justice Goldberg the phone rang one night. It was Dorothy Goldberg, she was sobbing, "Alan, make him change his mind." Justice Goldberg had decided to leave the Supreme Court in order to become the U.S. Representative to the U.N. Mrs. Goldberg was very upset with her husband's decision, but there was nothing I could say that would make him change his mind. He talked about patriotism and the need to end the war in Vietnam and insisted that he was doing the right thing. Five years after he retired from the Supreme Court, Justice Goldberg decided to run for governor. He asked his former law clerks, including current Supreme Court Justice Stephen Breyer and me, to help him in his campaign. Goldberg was a stiff campaigner, and not particularly knowledgeable about New York. Once while eating a knish at Yona Shimmel's on Houston in the Lower East Side, he told the assembled press how pleased he was to be in Brooklyn. A few days later a friend of mine who was a reporter with the Daily News called to have me comment on a story he was writing concerning how stiff and formal Justice Goldberg was. He said he had heard reports that he required his former law clerks still to call him "Mr. Justice." It was absolutely true. I told my friend that I would get back to him with a comment. I then went in to see the Justice and told him about the upcoming story. He replied, "Well it's true so why don't you just confirm it." I said, "Mr. Justice can't we just change it." He said, "No, I want you to continue to call me Mr. Justice." I replied with a compromise, "How about if we continue to call you Mr. Justice in private but we call you Arthur or Art or Artie in public?" He reluctantly agreed to be called "Arthur" in public, so long as we still continued to call him "Mr. Justice" in private. I called him "Mr. Justice" till the day he died. Needless to say, he lost the election to Nelson Rockefeller. Justice Goldberg always wanted me to become a judge, perhaps even a Justice. I never had any interest in wearing a robe since judging requires the kind of passivity that is not suitable to my temperament. I was surprised that Justice Goldberg was so insistent since he himself had left the bench after only 3 years. I don't think I would have lasted 3 months. In any event, I never lived my life so as to make it possible to be nominated for anything that required confirmation. I was once flattered by a magazine article that listed some of the most talented but unconfirmable people in America. I was included on that honor roll. My friend Steve Breyer on the other hand, 70 EFTA01091042 4.2.12 WC: 191694 was always the perfect judge and I worked hard behind the scenes to do everything I could to help his chances of serving on the bench. I helped him get confirmed for the Court of Appeals and lobbied President Clinton to appoint him to the Supreme Court. On the night of his nomination, he had his wife came to our home for an intimate celebration of his assuming the Goldberg seat on the Supreme Court. He has proved to be an extraordinary judge and is one of the fairest people I know.19 Some lawyers describe their clerkships as interesting or career-enhancing "jobs." My clerkships were life-changing experiences, which continue to influence me to this day. There could be no better preparation for my life as a professor at Harvard Law School. 19 When he was finally appointed to the Supreme Court, he invited me to come to his swearing in at the White House, after which there was a little party, where wonderful White House cookies were being served. My daughter was then in elementary school and I thought it would be nice to bring to her class a bunch of White House cookies for their next snack period. I took a paper napkin with White House markings and I started to put as many cookies as I could in it and then into my pocket. Suddenly there was a tap on my shoulder, "Stealing cookies from the White House, huh?" It was Hillary. She told me I didn't have to do that. She would be happy to give me a large box to take home. The kids in my daughter's class loved the cookies and the story. But the truth is they weren't quite as good as my mother's. 71 EFTA01091043 4.2.12 WC: 191694 Chapter 4: Beginning my life as an academic—and its changes over time I moved to Cambridge with my wife and two sons during the late summer of 1964. We rented an apartment, first in Brookline and a year later in Cambridge. I began my teaching career at Harvard at the age of 25. Some of my students were older than I was, and a lot more experienced. I was called the "Boy Professor."2° It was intimidating and scary. Preparing for classes that I had never before taught was a full time job. When I began teaching in 1964, the two "best" teachers were reputed to be Clark Byse and Ben Kaplan. I wanted to learn from the best, so I asked them if I could sit in on some of their classes to observe their teaching techniques and styles. They both refused. Professor Kaplan asked me, rhetorically, whether I "allowed people to watch while you make love with your wife?" I replied, "of course not." He smiled and said "well, I make love with my students and don't want anyone watching." I was tempted to respond that if I had 160 wives and made love to them all at once, I wouldn't even notice if people watched, but I accepted his rebuke and had to figure out how to teach based on trial and error. There were no classes at Yale Law School on how to teach law—and no instruction books. For the first several years I did nothing but teach and write. It was a full time job, and I had no time for cases or other outside activities. That was soon to change, but not until after I learned how to be a professor. My first assignment was to teach the required first year course in criminal law. On my first day of teaching, I encountered 160 eager faces. The men were dressed in shirts and ties; the handful of women wore skirts. The teaching style of the day was Socratic, with the teacher posing difficult hypothetical questions based on cases the students were assigned from a case book. The "Socratic Method" came naturally to me because of my Talmudic background and argumentative nature. Right from the beginning I sensed that the traditional case books did not give the students an appropriate balance between the theory of law and its real world practice. I decided to write my own case book, along with my criminal law mentor at Yale, Joseph Goldstein. I also decided to supplement my case book on a weekly basis with materials about contemporaneous developments in the law. My goal was to keep the students current while also preparing them to practice, teach, judge or legislate about criminal issues until the end of their careers a half century hence. I also wanted to introduce my students to other disciplines-psychology, sociology, economics, biology, literature—that would enrich their lives as lawyers. It was a daunting task, but one that I approached with enthusiasm and eagerness. I rejected any sharp distinction between "theoretical" and "practical" approaches to teaching, believing that theory must be tested by practice, and that practice should be informed by theory. To this day, I bring my practice into the classroom and my theory into the courtroom. I immediately loved teaching, particularly the Socratic exchange with my students. But I noticed that even though several of my students were older than me (William Bennett was among them), many of them were intimidated by the fact that I was the Professor. The "Paper Chase" professors were still the rule at Harvard and students were terrified of making a mistake. I 2° Harvard Law Record, October 22, 1964, p. 3 72 EFTA01091044 4.2.12 WC: 191694 wanted very much to loosen up the students and so I decided on a ploy. About a month into the class I deliberately made a mistake in asking about a case. I asked what the jury instruction had been. A student sheepishly raised his hand and said, "Professor, there was no jury instruction - - the case was tried before a judge." I said, "Woops - - I made a mistake. You're right," and I moved on. I noticed that after that "mistake" the students loosened up and were prepared to take many more risks. I have repeated this ploy many times to loosen up a class. Sometimes my mistakes in class were completely unintentional and darn embarrassing. Once I was teaching about a criminal concept that required the prosecution to build a wall separating information obtained under grant of immunity from information independently secured through investigation. The courts described this as a "Chinese Wall" because it had to be impenetrable. I was raising the possibility that one prosecutor may have improperly leaked information to another prosecutor, and I described it as follows: "There may have been a chink in the Chinese Wall." A Chinese American student in the class immediately took offense, erroneously believing that I was referring to Chinese people with that racial epithet. The thought had never occurred to me, but I never used that particular phraseology again. I also offended some of my Jewish students once when I was comparing Canada's approach to affirmative action to our own. In Canada, only "visible minorities" are eligible for affirmative action. A student asked me whether Jews were a visible minority. I responded, "No, we're an audible minority." Even though I was joking about my own group, I got flack from a number of Jewish students who thought I was reaffirming an old stereotype. I quickly learned that humor was important to my teaching but that humor based on racial, gender or religious stereotyping could raise sensitivities. I was sympathetic, therefore, when I asked a first year student how we would have responded to a particular plea bargain offer by a prosecutor. His response: "I would have tried to Jew him down a bit." The class was appalled at his ethnic slur and so was I, but I understood that he was probably just regurgitating what he had heard at his dinner table. I spoke to him privately after class. He was genuinely mortified at his lack of sensitivity. I'm sure he never repeated that particular slur. Because I was a rookie, I tended to spend an enormous number of hours preparing for each class. I stayed up the night before planning my questions and strategies and got to the law school at 7:00 am before each class. Naturally I parked in the first available slot in the parking lot. Several days into the semester Professor Clark Byse mentioned at lunch that Dean Griswold was sizzling mad because someone was taking his parking spot every day. Nobody had told me that the first spot was traditionally reserved for the Dean. Erwin Griswold was quite concerned about my lack of sophistication. I had never been outside the United States when I first started teaching at Harvard. I had barely been out of the Northeast. I still spoke with a pretty thick Brooklyn accent and, occasionally, allowed Yiddishisms to creep into my conversation. Griswold decided to take me on as a project. In the spring of my first year, he told me that he wanted me to go to England and France to look into criminology institutes in those two countries. The school would pay for the entire trip and various alumni would meet me in Paris and London and show me around. I was thrilled, but a bit surprised, 73 EFTA01091045 4.2.12 WC: 191694 when I got to Paris and discovered that there was no criminology institute to speak of. I still had a wonderful time. In London, I was invited to represent the Harvard Law School at the 750'h anniversary of the Magna Carta at Westminster Abby, where I sat several rows behind the Queen. It was only years later that Griswold acknowledged to me that the criminology institutes were just an excuse to have me travel abroad and get a little culture. It worked. I bought my first piece of art in Paris on that trip — a Kandinsky lithograph for which I paid $25. While in Paris, I was offered the opportunity one night either to attend a Paris opera or to hear a new group of British pop singers. Because I was trying to gain some culture, I chose the opera, and missed an opportunity to hear the Beatles in person. My children still kid me about that one. My mother loved to write me letters at Harvard and she would always address me as "Ass Prof," the abbreviation for assistant professor. Naturally, a student came upon one of the envelopes, and the word got around that my mother was calling me "The Ass Professor." My grandmother couldn't get the pronunciation rate, calling me the "Profresser" (in Yiddish, fresser means overeater). One day in criminal law I had a particularly obnoxious student who kept trying to one up other students by referring to his extensive background in philosophy, a subject in which he had a PhD. He would always begin his statements by saying, "Kant would say" or "Hegel would say." One day we were going to be studying an essay by one of the great contemporary philosophers, Robert Nozick. I knew that this particular student had studied with Nozick and would invoke him during the next class. Unbeknownst to the student, Bob Nozick was one of my closest friends. This was shortly after the release of Woody Allen's film "Annie Hall," in which Woody is standing in line for a movie and overhears a pretentious man regaling his date with information about Marshall McCluen. Woody Allen then pulls Marshall McCluen from behind a sign and has McCluen confront the pompous man, saying, "You know nothing of my philosophy." It was a wonderful putdown scene. I told Bob Nozick about the student. He knew him and agreed with my assessment. On the day in question, Bob sat in the back of the room with a hat over his head. As soon as the student began, "As Professor Nozick would say," Bob took his hat off, strutted to the front of the room and declared, "You know nothing of my philosophy." He then turned to me and said, "And neither do you." We all had a good laugh and Bob co-taught the rest of the class with me. Shortly after I began teaching, the Harvard Law Record wrote an article, headlined "The Psyche and the Law," describing my somewhat unusual approach to teaching criminal law. "His course in criminal law seems to some not to be a law course at all. For in place of abstracted appellate decisions, the would-be lawyers read pages by Margaret Mead. Where one would expect a capsule treatment of criminal procedure, he is apt to find a papal lecture on medical research and morality. Instead of listing categories of offences, the students skim Alfred Kinsey's report on the sex life of American males." It described me as "probably the youngest man ever named to the Harvard Law School faculty, [who] got his appointment at age 24." It quotes me as making the heretical statement that: "there's no such thing as The Law....Law is one of our many processes 74 EFTA01091046 4.2.12 WC: 191694 for ordering society. You can't view this process as a neatly compartmentalized entity. It must be viewed in its full perspective as an ongoing system." Professor Dershowitz sees his job not as teaching "the specifics of law in any jurisdiction; anyone can find that on his own," but to teach his students how "to ask the right questions and bring to bear the right information for the right purpose." In short, her purports to teach his students how to think critically and teach themselves. "I can only present the problems," he explains. "In many instances there are no answers, and I don't particularly care what answers the students find. As long as they see the process in perspective and are equipped to ask the right questions, that's all that counts." We deal with common day-to-day documents of the law—indictments, probation reports, transcripts—not merely sterile abstracts of appellate cases...Every major problem faced by the practicing lawyer will come up eventually. But the student will have to find them; they won't pop out at him... We don't play the logical, cute little game that often typifies criminal law courses. There are rarely pat answers and clear distinctions in this course; the student will have to make his own chapter titles." Some traditionalists were appalled at my interdisciplinary approach. One distinguished alumnus spoke for many when he wrote: "Professor Dershowitz seems to epitomize some of the lack of reality at the law school....Until such time as our whole penalogical system is changed, the law student is going to have to know his `law' as his preliminary basis for the experience to cope with existing institutions and do a lawyer's job. One cannot deny the credentials of Professor Dershowitz's genius, but I question whether the application of his genius as apparently applied, is of any help making good lawyers out of Harvard law students." My approach was defended by Justice Arthur Goldberg, for whom I had just finished clerking, who assured my critics that: "Mr. Dershowitz's students will be the beneficiaries of his engaging personality and extraordinary insight into the subjects he will teach, just as I was." The Harvard Law Record also editorialized that: It is good to know that many of these subjects are being injected into the Harvard Law curriculum by young Professor Alan M. Dershowitz; no doubt, even with our liberal arts backgrounds, we could stand and benefit from more such learning. Shortly thereafter, a lead article in the New York Times Magazine, comparing Harvard and Yale law schools, described me as "a fresh wind blowing through Harvard" and as an extremely popular teacher.21 That article afforded me legitimacy, even among some of the faculty and alumni who remained skeptical about my non-traditional approach to teaching law. At the end of my first year, I was given the highest teaching rating among the faculty. A subsequent article 21 New York Times Magazine, September 11, 1966, Victor S. Nevasky, The Yaks vs. The Harvards 75 EFTA01091047 4.2.12 WC: 191694 said that, "his students have praised him as 'the master of the hypothetical—answer one correctly, and he's got one in his arsenal that's guaranteed to tie your tongue in knots."' Soon, younger teachers were asking to sit in on my classes. I always said yes. I had a goal for every class, and when I think back on it, it was far too ambitious. I had to, with every single class, say something original, teach something original that had never been written or said before by anybody. That was my aspiration, and I worked hard to achieve it. Law, of course, was based on precedent: you got points for showing that someone, particularly a judge, had said earlier what you are saying now. I hated that approach. It reminded me of my Yeshiva education. I wanted to be original. Every single class had to have something new. I knew the students wouldn't appreciate it because they didn't know it had never been said by anybody, but that was my way of satisfying myself. And I would rip up the notes at the end of the year and I'd say, we have to start from scratch all over again. I was a very energetic teacher and I really tried to put everything I had into each class. I introduced a lot philosophy and psychology into the classroom, and because I was teaching criminal law. I had a lot of freedom since no one really cared about criminal law at Harvard. Our students were unlikely to become criminal lawyers in those days. In fact, I started out one of my classes by saying, "statistically, more of you are going to be criminal defendants than criminal lawyers, so pay attention." My first year of "crim" class was kind of a course designed to stretch the mind and teach analytic skills because it was not regarded as a "bread and butter" course like corporations or tax. So I had a lot of flexibility in what I could teach. A few years after I became a full professor, Derek Bok became the Dean of the Law School. We never got along all that well. One day he called me into his office with a smile on his face and told me that I was a very expensive professor. Since salaries are fairly standard at Harvard, I didn't know what he was talking about. He pulled out a letter from a Harvard alum saying that he would make a very considerable donation to Harvard Law School on one condition, namely, that I was fired. Many of the old-fashioned alumni were upset by my liberalism and the fact that I was teaching subjects like Psychiatry and Law, in addition to traditional subjects such as Criminal Law, but this particular alum had a more personal grievance. I had represented, on a pro bono basis, a young man I had grown up with in Brooklyn, who had been accused of making a bomb for the Jewish Defense League that had caused the death of a young woman employee of Sol Hurok. The young woman, as it turned out, was the sister-in-law of this wealthy alumnus. He would not contribute a single penny to Harvard Law as long as I remained on the faculty, but if I were fired he would donate a large building worth millions of dollars. In jest, I suggested to Derek Bok that maybe we could make a deal for a significant severance package. We both laughed. He knew that a great university like Harvard could never be intimidated, by the threat of withholding any amount of money, into firing a tenured professor. In my second semester of teaching, I was assigned the class in family law, which was an advanced elective popular with women students, because women lawyers were thought suitable to practice in such "soft" areas of law as divorce and child custody. My class included some of the most prominent women graduates of that era, including Lydy Dole, who became a United States Senator, Elizabeth Holtzman, who became a member of Congress and the District 76 EFTA01091048 4.2.12 WC: 191694 Attorney of Brooklyn, Elizabeth Bartholet, who is a professor at Harvard Law School and several other prominent figures. When I began teaching, Harvard Law School had been admitting women for only about a decade, and some of the professors still didn't believe that women could make really good lawyers. I encountered this prejudice at the end of my first year of teaching. The star student in my first year class was a woman from New York who eventually became a distinguished judge. She received an A grade on the final exam. Three of her other first year teachers also gave her A grades, but her contracts teacher gave her a D. She came to me upset about her D grade and asked me to read her exam. I read it and it was clearly of A quality. I was sure that her contracts professor had simply made a transcription error and so I went to his office to discuss it. He glanced at the exam and said, "Oh yes, I remember her. She doesn't think like a lawyer. That's why I gave her a D." I later learned that this professor has been opposed to admitting women to Harvard Law School because he believed that women don't think like lawyers. This episode persuaded me that something had to be done about the lingering prejudices of some of the faculty. Accordingly, I proposed "blind grading" of all exams, so that professors could not find out the gender of the student until after the grades were submitted. Several years later, my wife and I, and my son Elon, had dinner with then President Clinton and the First Lady. We had invited them to our synagogue on Martha's Vineyard for Rosh Hashanah services and they asked us to join them for dinner after the services. (More on this later) During dinner, I asked Hillary why she had chosen Yale Law School over Harvard. She laughed and said, "Harvard didn't want me." I said I was sorry that Harvard had turned her down, but she replied "no, I received letters of acceptance from both schools." She explained that a then boyfriend had invited her to The Harvard Law School Christmas dance, at which several Harvard Law School professors were in attendance. She was introduced to one of them and asked him for advice about which law school to attend. The professor looked at her and said, "We have about as many women as we need here. You should go to Yale. The teaching there is more suited to women." I asked her who the professor was and she told me she couldn't remember his name but that she thought it started with a "B." A few days later, we met the Clintons at a party. I came prepared with yearbook photos of all the professors from that year whose name began with "B." She immediately identified the culprit. He was the same professor who had give my A student a D, became she didn't think like a lawyer. It turned out, of course, that it was this professor—and not the two brilliant women he was prejudiced against—who didn't think like a lawyer. Lawyers are supposed to act on the evidence, rather than on their prejudgments. The sexist professor ultimately became a judge on the Internal Court of Justice—a perfect fit! (More on this later.) Nor was Professor "B" alone in his negative views of women as lawyers. One teacher refused to call on women, except on one day of the year, which he called "ladies day." On that day, he picked on them and verbally abused them to the point that some deliberately stayed away. The dean of the law school, Erwin Griswold, a great defender of civil liberties and civil rights, was a blatant misogynistic. Near the beginning of my teaching career, he invited the new assistant 77 EFTA01091049 4.2.12 WC: 191694 professor—me—and all the women students-a small number—to his home for dinner. He warned the women that if they came to law school to find husbands, they would be disappointed: "Harvard Law School men don't date Harvard Law School girls. They date girls from Lesley" (a neighboring women's college). He then went around the table asking all the women students why they were taking up the place of a man who would actually practice law, while they got married and raised children. Dean Griswold wasn't particularly comfortable with Jews either. At the same dinner, he noticed that I didn't eat the meat, and he asked me why. I told him I was kosher, to which he responded: "Even the Catholics have eliminated the prohibition against eating meat on Friday. Don't you think it's time for your people to eat what everyone else eats." I thought he was kidding, so I said: "I'll check with my people." He wasn't kidding. The next time I saw him I said: "I've checked with my people and they said that they've been keeping kosher for thousands of years, so a few more centuries couldn't hurt." He didn't laugh. I think this exchange kept me kosher for an extra few years! For more than a year, Griswold called me "Shapiro," which was the name of another assistant professor, with whom I had nothing in common, except a Jewish sounding name. Griswold demanded that I teach classes on Saturday. I refused. He said he couldn't make a special exception for me because I was a practicing Jew. I still refused. So he abolished all Saturday classes. Shortly after I was appointed to the Harvard Law School faculty, I received a call from Judge Aldrich inviting me to present a talk to the members of his private club, called the "Club of Odd Volumes." He assured me that its members included some of the best and most important lawyers in Boston, including several Justices of the Supreme Court and other judges. "We invite all the new dons to tell us about their work," he advised me. Remembering Judge Bazelon's refusal to speak to the members of Justice Douglas' restricted club, I politely told Judge Aldrich that I would get back to him. I then called the head of the local Anti-Defamation League and inquired about the Club of Odd Volumes. "They don't accept Jews, Catholics, Blacks or women as members," he quickly responded. I called Judge Aldrich, and told him that I had a strict policy against speaking at any "restricted" club and so I would respectfully have to decline his kind invitation. (I adopted that "policy" that day, having never before been invited to speak at a restricted club.) He thanked me for considering it and hung up the phone. Within an hour, I was abruptly summoned into the Dean's Office. Dean Erwin Griswold informed me that I had offended one of the Law School's most important and influential alumni, that I was the only assistant professor ever to turn down an invitation to speak at that club and that it was important for untenured faculty to present their work there because several of the members served on the Harvard Board of Overseers that had to approve all tenure decisions. "You've hurt your chances," he chided me. "Why did you decline their invitation? Will you reconsider it if I can get them to invite you again?" I explained my reasons. Griswold, who despite his Midwest origins considered himself an honorary Brahman, was a cautious advocate of civil rights and civil liberties, so I thought he 78 EFTA01091050 4.2.12 WC: 191694 would understand. What I did not know was that he himself was a member of a restricted club. Nevertheless, he paused, looked directly at me and said, "While I don't agree with you, considering your background I can understand why you would feel uncomfortable at that club. I'll call Bailey and try to explain. I hope he understands, and I hope you haven't hurt your chances." That was the last I heard, until a few years later when Dean Griswold informed me that the chairman of the overseers subcommittee being asked to review and approve the faculty decision recommending me for tenure, was an active member of "the Club." I was ready for a fight. But there was no fight. I was approved, the dean later told me, by a unanimous vote. Several years after I began teaching, I was invited to deliver a distinguished named lectureship at a major university. Following my talk, there was a dinner in my honor at the local university club. When I got to the club, there were several women standing outside picketing because it was a men's only club. I refused to cross the picket line and the dinner had to be moved to a different venue, over the strong objections of the Chief Justice of the State, who was one of the sponsors to the dinner. I had a similar experience in Columbus, Ohio, after I argued an important case on behalf of a local law firm. They invited my female associate and me to have dinner with them at the local university club. When we got there, they asked my associate if she wouldn't mind walking in through the side door since the main entrance was for men only. Since she was a young associate, she reluctantly agreed, but I refused to let her demean herself. We had lunch at the local McDonald's. Several years later, I was invited to Australia to give a series of lectures, and the Harvard Club of Sydney asked me to give a luncheon talk to Harvard alumni. I agreed. When I mentioned to a friend that I was going to be speaking at the Australia Club, he advised me that it was closed to Jews, women, and Blacks. I gave the Harvard Club two options: I would keep my commitment and make my speech, but I would speak about why it was wrong for Harvard to hold events at segregated clubs; or they could move the speech and I would give a talk about life at Harvard. They chose the second alternative. When I returned to Harvard, I wrote to the dean and a memo was circulated mandating that henceforth no Harvard professors, speaking on behalf of Harvard, should appear in a segregated venue. When a Jewish country club in Boston asked me to talk, I told them about my policy and declined the invitation. They explained that the club had been established in reaction to the unwillingness of other country clubs in the area to accept Jewish members. I told them that I did not think this justified further discrimination. A few days later, the membership chairman called and told me that, in fact, the club had six non-Jewish members and that it was open to accepting more. I made the speech. A young member approached me following my speech and told me I had been conned, "Sure, we have six non-Jewish members, but they're all sons-in-law of Jewish members." I have never spoken at that club again. When I joined the faculty, it was quite small—perhaps two dozen full time professors. (Today there are more than 100, with a student body that hasn't increased in size.) The entire faculty would meet for lunch every day in a small dining room around a large table presided over by the dean, and in his absence by a senior faculty member. The discussions would revolve around legal issues. The criteria for judging an argument and its maker was its "soundness." That word still rings in my ear, like my grandmother's "metumished." All faculty nominees had to have "sound" judgment. Their writing had to be "sound," rather than creative, speculative, quirky or provocative. I was concerned because my views were anything but "sound"—as least as judged by some of the more traditional faculty members. 79 EFTA01091051 4.2.12 WC: 191694 Recently, I told one of my long-time colleagues that when I was choosing between teaching at Harvard and Yale Law Schools, my Yale Law School teacher, mentor and friend, Professor Alex Bickel, who had been turned down for a professorship at Harvard because his views of constitutional law weren't sound enough, and subsequently became one of the most distinguished law professors at Yale, advised me against going to Harvard: "You won't fit in there," he warned me. When I recounted this story to my Harvard colleague of 50 years, he replied: "Alex was right. You don't fit in here." I never tried to. In order to obtain tenure, each assistant professor had to publish a "tenure piece." I wrote an article on the relationship between law and psychiatry that was critical of the law's overreliance on psychiatry in judging whether mentally ill criminals could be held responsible for their crimes, and whether people thought to be dangerously mentally ill should be preventively detained in asylums. Because the article insisted that these decisions should be based on legal rather than medical criteria, and because it was somewhat critical of certain views espoused by my mentor Judge Bazelon—who was regarded at the epitome of unsoundness by the Harvard Law School establishment—it was deemed sound and I was voted tenure. While I was being considered for tenure, I began to get offers from the other elite law schools— Columbia, Chicago, Stanford, Yale, NYU. I was earning $12,000 a year at Harvard and would be offered a raise to $14,000 when I received tenure. Stanford offered me $20,000, which was the highest offer any assistant professor had ever received in the history of law teaching. It was well above what many full professors at Harvard were then making. I went to Dean Griswold and told him I couldn't afford to turn down an additional $6,000 since I had two kids in private school and no money in the bank. He told me sternly that he could not pay me more than older professors so he raised everyone's salary starting with mine to $21,000. I became the most popular professor among my young colleagues who all benefited from what became known as "the Dershowitz bump." Over my long career at Harvard, I've published a great deal. I've never counted but one of my secretaries estimated that she typed a million words a year for me (including legal briefs). This would amount to 500 books! I love writing. I write every day, on hundreds of subjects, and I write everything by hand on yellow pads. I venture to guess that I've probably published more words (not necessarily wiser or better, but more) than any professor in the law school's history— more than 30 books, hundreds of chapters in other books, dozens of law review articles and thousands of newspaper and magazine articles. I've probably also taught more different courses than most other professors. These include: Criminal Law; Constitutional Litigation; Family Law; Psychiatry and the Law; the Prediction and Prevention of Harmful Conduct; Race and Violence; the Scriptural Sources of Justice; the Law of Sports; the Legal, Moral and Psychological Implications of Shakespeare's Tragedies; Ethics and Tactics in the Trial of Criminal Cases; Human Rights; Terrorism and the Law; Probabilities and the Law; a Comparative Analysis of Talmud and Common Law; Wikileaks and the First Amendment; the Arab Israeli Conflict through Literature; Black Power and its Legal Implications; The Writings of Thomas Jefferson; and Constraining Prosecutorial Misconduct. 80 EFTA01091052 4.2.12 WC: 191694 In addition to my classes at the law school, I have also taught numerous classes at Harvard College, including a very large course that I created and taught jointly with Professor Robert Nozick and Stephen J. Gould, entitled Thinking about Thinking; a seminar with Professor Steven Kosslyn on Neurobiology and the Law; a large class with Professor Steven Pinker on the subject of Taboos; and a series of freshman seminars entitled Where Does You• Morality Come From? My teaching and academic writing have centered on several overarching themes. Between my earliest articles on the preventive detention of the dangerously mentally ill and my recent series of books on the prevention of terrorism, my major academic focus has been on prediction and prevention of harmful conduct. I've taught numerous classes about that and related issues. The writings ranged from the preemption and prevention of harmful conduct by the mentally ill, to the effort to predict which kinds of speeches and writings might lead to violence.22 They included articles and books on preventive detention of suspected terrorists, preventive interrogation and surveillance methods designed to secure real-time intelligence information necessary to prevent terrorism, preemptive military actions, pre-trial detention of ordinary criminals, preventive genetic testing and inoculation, preventive character testing,23 and preventive profiling. As to all of these issues, I have sought to balance the imperatives of due process, liberty and decency, against the legitimate needs of national security and crime prevention. I coined the term "The Preventive State" and have been thinking, teaching and writing about its increasing dangers for half a century. I believe I was the first academic to focus on this problem in a systematic way. The overt text of many of my books, articles and classes dealt in large part with the substantive and procedural issues growing out of prediction and prevention of harmful conduct—the movement we are experiencing toward "the preventive state"—and the jurisprudential problems associated with this movement. There is, however, a more subtle subtext that runs through not only the writings about prevention, but virtually all my other writings as well. This subtext is the need in a democracy for openly articulated criteria and standards, whenever states (or state-like institutions) take actions that affect the rights of individuals whether these actions are preventive or reactive in nature. This need may seem obvious, since democracy cannot operate in the absence of visibility and accountability. Yet in virtually all of the areas about which I have chosen to write and teach, the criteria and standards for government action have been unarticulated or hidden from public view. Moreover, there have been some who have argued that it is wiser, even in a democracy, sometimes to hide from public view (and hence public scrutiny) what the government is doing.24 22 See Alan Dershowitz, Finding Jefferson (Hoboken, NJ: John Wiley & Sons, 2008). 23 See Alan Dershowitz, "Preventive Disbarment: The Numbers Are Against It," American Bar Association Journal 58 (Aug. 1972): 815. 24 As I wrote in Why Terrorism Works: In my debates with two prominent civil libertarians, Floyd Abrams and Harvey Silverglate, both have acknowledged that they would want nonlethal torture to be used if it could prevent thousands of deaths, but they did not want torture to be officially recognized by our legal system. As Abrams put it: "In a democracy sometimes it is necessary to do things off the books and below the radar screen." Alan Dershowitz, Why Terrorism Works (New Haven: Yale University Press, 2002): 151. See also Richard Posner, Quoted pp infra. 81 EFTA01091053 4.2.12 WC: 191694 Some governmental decisions and actions must, of course, be kept secret, at least for a time. Espionage activities, weapon development, military planning and the like must, by their very nature, be kept under wraps if they are to succeed. But broad policy decisions should, in a democracy, be subjected to the checks and balances not only by the other branches of government, but of non-governmental organizations such as the media, the academy and, most important, the citizenry. As I wrote in Rights from Wrongs: This balance is part of our dynamic system of governing, which eschews too much concentration of power. American sovereignty, unlike that of most other Western democracies, does not reside in one branch of government or even in the majority of the people. Our sovereignty is a process, reflected in governmental concepts such as checks and balances, separation of powers, and judicial review. More broadly it is reflected in freedom of the press, separation of church from state, academic freedom, the free-market economy, antitrust laws, and other structural and judicial mechanisms that make concentration of power difficult. These checks on abuse cannot operate effectively in the absence of visibility, accountability and public discourse. What is needed, and what is sorely lacking, is a theory of when governmental actions may appropriately be kept secret (and for how long) and when they must be subject to open debate and accountability. I have been seeking to contribute to the development and articulation of that theory by writing and teaching about areas of law in which the criteria and standards for state action are either hidden from public view or so vague that they invite the exercise of untrammeled discretion not subject to the rule of law. Perhaps it is my interest in this issue of standards and accountability that is one of the reasons why I chose to focus my academic career around areas such as the prediction and prevention of harmful conduct, where there are few articulated standards and little public accountability. Or perhaps it was my focus on prediction and prevention that sensitized me to the more subtle issue of lack of visible standards and criteria. Whichever was the chicken and whichever the egg, these two paramount areas of my interest have worked symbiotically to generate my body of scholarship. My insistence on articulate standards and accountability has not been without controversy. When I espoused the need for "torture warrants" to cabin the widespread use of extreme methods of interrogation, such as waterboarding, by the Bush Administration, I was accused of being an apologist for torture. When I have sought to learn the actual criteria by which students are admitted pursuant to affirmative action programs, I have been accused of insensitivity to racial issues. When I have demanded clearly articulated rules for limiting "offensive" speech on campus, I have been accused of favoring censorship. (More on these issues later.) When I have insisted on neutral standards of human rights, articulated with clarity. I have been accused of being a special pleader for Israel. The reality is that neutral standards and public accountability are essential to democratic governance. That is why I have devoted so much of my writing and teaching to these issues over the years. 82 EFTA01091054 4.2.12 WC: 191694 I will continue to work on these issues as long as I can think, write and speak—even after my active teaching career at Harvard comes to an end. I am a teacher first and foremost. All of my work—classroom pedagogy, academic and popular writing, lecturing, media appearances, even litigation—is teaching. Only the audience is different. The question I'm most often asked about my classroom teaching is how the students have changed and how the teaching of law has changed during the 50 years I have been at Harvard. The change in the student body has been dramatic. The vast majority of our students are no longer the white American males that dominated the classroom in the early 1960s. Nearly half the class is comprised of women, about a quarter of the class of racial and ethnic minorities, and approximately 10% from foreign countries. This increased diversity brings with it a wide range of viewpoints and experiences that enrich the class discussion. Today's students are also older, with more work experience. They come to the classroom with firm, if not always clear, views of who they are and what they want to be. They are not the naïve, sycophantic, uncritical consumers that characterized my generation of students right out of college. This is all good, because it makes teaching them more challenging. Equally important has been the globalization of law over the past quarter decade. When I began teaching, all law, like all politics, was local. Today, virtually all law is global. A typical case that comes across my desk and that I now teach about is as follows: A man born in Israel becomes a British citizen and moves to Houston where he works for a multinational firm which allegedly paid a bribe to an African prince from one country to build a gas facility in another African country using French funds transmitted from a Swiss bank. The person is now in Canada and the United States and Great Britain are both seeking his extradition. The laws of each of the countries differ considerably as to what constitutes a bribe, as distinguished from a proper or merely unethical payment. The laws of each country also differ as to the propriety of preparing witnesses and gathering evidence. A lawyer confronting this kind of case must know how to deal with these transnational problems. Law schools have traditionally offered courses in international law, teaching the students about international tribunals and treaties. The source of problems confronted today are not decided by international law or international courts. They are transnational, rather than international, in nature and require an ability to navigate the very different terrains of many nations' legal systems. Among the areas of law in which political and legal boundaries are frequently crossed, are: intemet law, environmental law, antitrust law, corporate law, criminal law and many newly emerging fields of law. We are just beginning to teach our students how to practice in this global environment. We must do more if we are to stay ahead of major changes and prepare our students to be great lawyers through the middle of the 21s' Century. 83 EFTA01091055 4.2.12 WC: 191694 I have been privileged to teach nearly 10,000 students over my half century career as a law professor. Among the students I have taught, mentored, advised and encountered have been Presidents, Supreme Court justices, judges, senators, congressmen, corporate CEO, deans, professors, university presidents, journalists and other movers and shakers. With the privileges of teaching tomorrow's world leaders comes enormous responsibilities. Among these responsibilities is not to use the classroom to propagandize one's captive audience. My goal is not to turn conservatives into liberals, but to make conservatives more thoughtful conservatives, better able to articulate and defend nuanced positions. The same is true of liberals and everyone else. I always play the devil's advocate, challenging every view, questioning every idea, pushing every opinion. In doing so, I learn a great deal from my students. My classroom is truly a marketplace of ideas. This should not be surprising, considering my life-long commitment to freedom of expression and the widest exchange of views, as I describe in the next chapter. When I was offered the job at Harvard at age 24, I knew that I was qualified to teach theoretical subjects, but I worried about my lack of real world legal experience, since I had never practiced law. (One summer at a law firm between my second and third year at Yale does not a practitioner make.) Unlike some academics, my Brooklyn upbringing gave me a practical bent of mind—"street smarts"—but I craved some real world experience. I looked for opportunities to become involved in cases that would provide a smooth transition from theory to practice. Within a few years of beginning my teaching career, I found a natural transition in the form of First Amendment cases challenging governmental censorship. 84 EFTA01091056 4.2.12 WC: 191694 Part II: The changing sound and look of freedom of speech: from the Pentagon Papers to Wikileaks and from Hany Reems' Deep Throat to Woodward and Bernstein's "Deep Throat." Chapter 5: The Changing First Amendment—New Meanings For Old Words I always wanted to be a First Amendment lawyer. Everything in my upbringing and education led me to the defense of freedom of speech. I was always a dissident—though they used the less polite term "trouble-maker." I argued with everyone, all the time. I defended other trouble- makers. I questioned everything and everybody. I may have had a Fifth Amendment right to "remain silent," but I rarely exercised it. I spoke up. For me, the freedom to speak, to write, to dissent, to seek a redress of grievances, to assemble, to doubt, to challenge, has always been central not only to democratic governance but to life itself. The First Amendment has always been my favorite part of the Constitution, not because it is first among the Amendments—in its original, proposed form, it was the Third Amendment25—but because without its protection, all other rights are in danger. Not everyone agrees. Listen to Charlton Heston: "I say that the Second Amendment is, in order of importance, the first amendment. It is America's First Freedom, the one right that protects all the others. Among freedom of speech, of the press, of religion, of assembly, of redress of grievances, it is the first among equals. It alone offers the absolute capacity to live without fear. The right to keep and bear arms is the one right that allows 'rights' to exist at all." Both history and geography have proved Heston wrong: Nearly every other freedom loving country in the world has severe restrictions on gun ownership; while none has severe restrictions on expression. The stirring words of the First Amendment—"Congress shall make no law...abridging the freedom of speech or of the press..."—haven't been amended between my first case defending freedom of expression in the 1960s and my most recent one, but the meaning of these words has undergone dramatic transformation over the past half century. The major reason has been the rapid change in the manner by which speech is transmitted. Technology has altered the sound and look of freedom of expression. Over the past 50 years I have defended every means, manner and mode of expression from films to plays, books, magazines, newspapers, photographs, leaflets, pamphlets, megaphones, websites, intemet postings, speeches, heckling, cartoons, faxes, composites, noises, threats, incitements, videos, ads, prayers, classes, live and filmed nudity (frontal, sideal, backal), defamation, blasphemy, and digital communication (by which I mean a raised middle finger). I have defended right wing Neo Nazi and racist speech, hard left Stalinist rhetoric, soft core erotica, hard core pornography, nude photographs of children and disgusting videos of bestiality. I have defended the right of major newspapers and book publishers, as well as anonymous and 25 Congress originally voted to submit 12 Amendments to be ratified by the States. The First and Second—which dealt with the size of Congress and the compensation of Senators and Congressmen—were not ratified and the Third Amendment became the First. 85 EFTA01091057 4.2.12 WC: 191694 not-so-anonymous bloggers, tweeters, website operators and whistleblowers to disclose classified information, state secrets and other material the government would prefer to keep under wraps. I have represented people I love, people I hate and people I don't give a damn about—good guys, bad guys, and everything in between. H.L. Mencken used to bemoan the reality that: "The trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches: for oppressive laws are always aimed at them originally, and opression must be stopped in the beginning if it is to be stopped at all." In each instance, I've stood up for an important principle: the right of the individual, rather than the government, to decide what to say, what to show, what to hear, what to see, what to teach, what to learn. I have opposed the power of the state (and other state-like institutions) to censor, punish, chill, or impose costs on the exercise of the freedom of expression—even, perhaps especially, expression with which I disagree and despise or believe may be hateful, hurtful or even dangerous. I have myself been the victim of outrageous defamations (including that I beat and killed my wife! And that I plagiarized my book "The Case for Israel"). I have been accused (falsely, I believe) of defaming others. I have been informally charged with inciting war crimes, and formally charged with criminally defaming a judge—to which I plead not guilty! I have defended the right of my enemies to lie about me, to boo and heckle me and even to try to get me fired. While defending the right of my political, ideological and personal opponents to say nearly anything they want, I have insisted on my own right to criticize, condemn and vilify them for the wrongness of what they have chosen to say. Freedom of expression includes the right to be wrong, but it does not include the right to be immune from verbal counterattack. I am not a free speech absolutist when it comes to the First Amendment—at least not in theory. But in practice I nearly always side with the freedom to speak, rather than the power to censor. It's not that I trust the citizenry; it's that I distrust the government. It's not that I believe the exercise of the freedom of speech will always bring about good results; it's that I believe that the exercise of the power to censor will almost always bring about bad results. It's not that I believe the free marketplace of ideas will always produce truth; it's that I believe that the shutting down of that marketplace by government will prevent the possibility of truth. My family and educational background—especially my constant arguments with rabbis, teachers, neighbors and friends—made me into a skeptic about everything, even skepticism. I am certain that certainty is the enemy of truth, freedom and progress. Hobbs has been proved wrong by the verdict of history in his inclusion among the "rights of sovereigns" the power to censor "all books before they are published" that are "averse" to "the truth," or not conducive to peace. I know that I will never know "the truth." But neither will anyone else. All I can do is doubt, challenge, question and keep open the channels of knowledge, the flow of information and the 86 EFTA01091058 4.2.12 WC: 191694 right to change my mind. To me, truth is not a noun; it is an active verb, as in "truthing" (or knowing, learning or experiencing). My favorite characters in the Bible and in literature are those who challenge authority: Adam and Eve defying God and eating the forbidden fruit of knowledge; Abraham chastising God for threatening to sweep away the innocent along with the guilty; Moses imploring God to change his mind about destroying the "stiff-necked" Jewish people. My favorite Justices of the Supreme Court are the dissenters. My favorite historical figures are political and religious dissidents. My closest friends are iconoclasts. Some of my best teachers were fired. The First Amendment would have been nothing more than a parchment promise had it not been given life by brave political dissidents and bold judicial dissenters. Because of these provocateurs, the First Amendment has not become ossified with age. It has changed with the times, sometimes for the better, sometimes for the worse. Although the literal words have remained the same for more than two centuries, two of the most important ones have been changed beyond recognition. These words are "Congress" and "no." ("Congress shall make it Q law....") The controversial role of these two words can best be illustrated by a story; perhaps aprocrophyl but reflecting reality, about two great and contentious justices, Hugo Black, who claimed to be an absolutist and literalist when it came to the words of the First Amendment, and Felix Frankfurter, who advocated a more functional balancing approach despite the seemingly clear words of that Amendment. In a case involving censorship by a state, Black pulled out his ragged old copy of the Constitution, turned to the First Amendment and read it out loud to the lawyer representing the state. "Read the words," he shouted at the intimidated lawyer. "It says Congress shall make NO law abridging the freedom of speech." He banged the table as he shouted and repeated the word "no." "What don't you understand about the word `no,' he asked rhetorically. Justice Frankfurter interrupted and said, "You're reading the words wrong." The lawyer looked startled as the Justice explained. "It doesn't say 'Congress shall make NO law.' It says, `CONGRESS shall make no law,"' banging the table as he shouted and repeated the word "Congress." He then continued, "This law wasn't passed by Congress, it was passed by the state. What don't you understand about the word `Congress," he asked, mocking his fellow justice. By emphasizing different words, the two justices were giving radically different meanings to the very same language of the First Amendment. The reality is that both of these words—"Congress" and "no"—have been excised over time. The first—"Congress"—was central to the history of the Bill of Rights, which was seen by its framers largely as a bill of restrictions on the power of the national legislature—namely "Congress." There was considerable concern that the Constitution, which replaced the Articles of Confederacy, bestowed too much power on the national legislature, thus reducing the rights (really the powers) of the states to legislate for their citizens.26 The First Amendment was not 26 The rarely invoked 10th Amendment makes this clear: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 87 EFTA01091059 4.2.12 WC: 191694 intended by its framers to impose restrictions on the states. In fact when the Bill of Rights was enacted, and for many years thereafter, many states had laws severely abridging the freedom of speech and of the press. (Several states also had officially established churches and officially discriminated against Catholics, Jews, Turks and "other" Pathens.) If the framers had wanted to impose restriction on the states, it would have been simple to have written a more general declaration protecting the right of free speech from abridgment by sa government. For example: "the freedom of speech shall not be abridged by Congress or by the states." Indeed, many scholars and judges believe that this was accomplished three quarters of a century later when the 14'h Amendment was ratified. It provides in relevant part: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The current judicial view is that the words in the 14th Amendment "incorporated" the First Amendment (along with most but not all of the others) and applied it to the states. According to this view, the First Amendment now reads, in effect, as follows: "Congress and the state legislatures shall make no law abridging the freedom of speech." Actually, it now reads even more broadly, since the courts have not limited the prohibitions of the First Amendment to the legislative branches, but have extended them to the executive and judicial branches—to any governmental action—as well. So the First Amendment now reads, in effect, as follows: "Congress and the state legislatures, as well as the executive and judicial branches of the federal and state governments, shall make no law and shall take no executive or judicial action abridging the freedom of speech." Thus the first major change—from "Congress" to "government"—has considerably expanded the meaning of the First Amendment and broadened the right to free speech. The second change has narrowed the right, at least as literally written, by excising the word "no" as in "no law." The words "no law"—an absolute prohibition on all legislation abridging any speech—are somewhat understandable if limited to Congress. A democracy can survive if the national legislature has absolutely no power to abridge speech of any kind, no matter how dangerous or harmful, so long as the state legislatures can pick up the slack and enact what all reasonable people would agree are essential limitations on some forms of expression, such as disclosing the names of spies, the locations or warships, the plans for battle, the nature of secret weapons and other matters that must be kept from enemies.27 But the words "no law" make little sense when applied both to the federal and state legislatures, indeed to all governmental bodies, because there really is no rational case to be made for a total and absolute prohibition by any and all governmental institutions on any and all abridgment of any and all possible utterances. 27 Interestingly, it is the National Congress, rather than the states, that should have the power to protect the national security interests of our nation, but many of the exceptions to an absolute right of speech, that were recognized at the time the First Amendment was ratified, were matters of state concern, such as defamation laws, obscenity laws and blasphemy laws. 88 EFTA01091060 4.2.12 WC: 191694 Even those, such as Justice Hugo Black, who purport to be absolutist for the protection of all speech, have figured out ways to finesse the problem. Consider the case of Cohen v. the United States in which an opponent of the Viet Nam War wore to court a jacket displaying the words "Fuck the draft." Justice Black joined a dissenting opinion that would have affirmed Cohen's conviction on the ground that "Cohen's absurd and immature antic" was "mainly conduct and little speech." Under this approach, "all" speech remains constitutionally protected, but if you don't like the content of a particular speech—"Fuck the draft" worn on a jacket—simply call it "conduct" and by slight of hand (or abuse of language), the constitutional protection vanishes. In other words, First Amendment absolutists—those who claim to read literally and apply absolutely the words "no law abridging the freedom of speech"—simple declare a genre of expression that they do not wish to protect to be "not speech." It reminds me of the story of the Theodore White's famous visit to Communist China in the days when only a select few were invited. He was hosted by Chou en Lie at a banquet at which the main dish was roasted pork. White, a moderately observant Jew, told the Communist leader that he could not eat pig. Without missing a beat the leader told his guest that in China only he has the power to declare what a food item actually is. "I hereby declare this to be duck," he said. So White ate the "duck." According to the absolutist view, obscenity—including dirty words used in the context of a political protest-is not speech. (Perhaps it's "duck.") The same is true for other categories of expression that do not—in the view of at least some absolutists—warrant the protection of the First Amendment. I know of no absolutist who would argue that all expression—including words of extortion, falsely shouting fire in a crowded theater, or disclosure of all secrets—are protected by the First Amendment. Non-absolutists recognize that these forms of verbal expression are indeed "speech," but they argue that the words of the First Amendment should not be read literally. Some argue that they must be understood in the context of the times when they were written, and they point to restrictions on speech that were widely recognized in 1793. Under this approach, much of what we take for granted today as protected speech—such as blasphemy, truthful criticism of judges and serious art and literature of a sexual nature—would not fall within the First Amendment. Other non-absolutists reject this "originalist" approach, preferring instead to argue for a "living," "evolving" and "adapting" view of the First Amendment (and the Constitution in general), which explicitly acknowledges that courts must have the power to redefine old words to meet the new needs of changing times. Whichever approach is taken, it is clear that not all verbal and other form of expression are protected by the First Amendment. There is widespread disagreement over what are appropriate exceptions, as reflected by the divided votes of the Justices in many cases and the lack of consensus among scholars. All seem to agree with Justice Oliver Wendell Holmes that even "the most strident protections of free speech would not protect a man in falsely shouting fire in a theater...." (More on this soon.) 89 EFTA01091061 4.2.12 WC: 191694 Several general categories of speech that may result in harms purport to flow from the "shouting fire" paradigm. They include the following: I. Offensiveness: Expressions that offend others, such as sexist, scatological, racist, anti- Semitic, anti-Muslim, anti-Christian, homophobic and other demeaning or repulsive speech. 2. Fighting Words: Speech that is so offensive to some that it may cause those who hear it to react violently. This includes racial or religious epithets hurled at minorities. 3. Criminogenic speech: Violent sexualized images that may cause, directly or indirectly, such harms as rape or sexual harassment. 4. Disclosure of information that may harm the nation or individuals. This includes military and diplomatic secrets, and other information that the government or individuals may have a right to keep from the public. It may also include disclosure of personal information that may embarrass individuals. 5. Defamatory speech: Expressions that libel, slander or harass others, by conveying false or ridiculing information about them. 6. Incitements: Expressions that are calculated to incite others to commit violent or other illegal actions. 7. Disruptions: Expressions that are designed to disrupt speakers or otherwise prevent opposing views from being expressed or heard.28 These alleged harms sometimes overlap, as with obscenity which may offend and also cause violence against women, or racist speech which may both offend and provoke violence. In the pages to follow, I will recount my experiences—both professional and personal—with each of those purported exceptions to the First Amendment. I will describe how the First Amendment has changed over the half century I have been litigating freedom of expression cases. In some instances, these exceptions have been narrowed, while in others they have been expanded. I will begin by exploring the roots and rationality of the "mother" of all exceptions to the First Amendment: "Falsely shouting fire in a theater." This metaphor has been invoked to justify censorship in nearly all of my cases: pornography, revealing state secrets, defamation, ridicule, incitement and fighting words. Those advocating censorship generally argue that these exceptions "are just like shouting fire in a theater." It is important, therefore, to consider whether this paradigm has a strong enough foundation to support the many exceptions to freedom of expression that purport to rest on it. Shouting Fire: The mother of all exceptions to the First Amendment Justice Oliver Wendell Holmes' statement that freedom of speech does not protect someone who falsely shouts "fire" in a theater has been invoked so often, by so many people, in such diverse contexts, that it has become part of our national folk language. It has even appeared —most appropriately — in the theater: In Tom Stoppard's play Rosencrantz and Guildenstern Are Dead, 28 An additional, quite controversial, mechanism involves the financing of political campaigns. See Citizen's United Case [cite]. I have not yet litigated cases in this area. 90 EFTA01091062 4.2.12 WC: 191694 a character shouts at the audience, "Fire!" He then quickly explains: "It's all right — I'm demonstrating the misuse of free speech." Shouting "Fire!" in the theater may well be the only jurisprudential analogy that has assumed the status of a folk argument. A prominent historian has characterized it as "the most brilliantly persuasive expression that ever came from Holmes' pen." But in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and always was an inapt analogy, even in the context in which it was originally offered. It has lately become —despite, perhaps even because of, the frequency and promiscuousness of its invocation — little more than a caricature of logical argumentation. From the beginning of my career as a First Amendment lawyer, I have taken aim at this analogy, both in my writings and in my cases. In my view, it is one of the least persuasive, though most influential, arguments for censorship that ever came from anyone's pen! The case that gave rise to the "Fire!"-in-a-crowded-theater analogy— Schenck v. United States— involved the prosecution of Charles Schenck, who was the general secretary of the Socialist Party in Philadelphia. In 1917 a jury found Schenck guilty of attempting to cause insubordination among soldiers who had been drafted to fight in the First World War. He had circulated leaflets urging draftees not to "submit to intimidation" by fighting in a war being conducted on behalf of "Wall Street's chosen few." Schenck admitted that the intent of the pamphlet's "impassioned language" was to "influence" draftees to resist the draft. Nothing in the pamphlet suggested that the draftees should use unlawful or violent means to oppose conscription. As Justice Holmes found: "In form at least [the pamphlet] confined itself to peaceful measures, such as a petition for the repeal of the act" and an exhortation to exercise "your right to assert your opposition to the draft." Many of the pamphlet's words were quoted directly from the Constitution. It would hard to . A clear case of petitioning one's government for a redress of grievances, which is explicitly protected by the worlds of the First Amendment. Holmes also acknowledged that "in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights." "But," he added, "the character of every act depends upon the circumstances in which it is done." And to illustrate that truism he went on to say, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic." Justice Holmes upheld the convictions, finding that the pamphlet created "a clear and present danger" of hindering the war effort while our soldiers were fighting for their lives and our liberty. The example of shouting "Fire!" obviously bore little relationship to the facts of the Schenck case. The Schenck pamphlet contained a political message—a series of ideas and arguments. It urged its draftee readers to think about the message and then — if they so chose — to act on it in a lawful and nonviolent way. The man who shouts "Fire!" in a theater is neither sending a 91 EFTA01091063 4.2.12 WC: 191694 political message nor inviting his listener to think about what he has said and decide what to do in a rational, calculated manner. On the contrary, the message is designed to force action without contemplation. The shout of "Fire!" is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection. Indeed, in that respect the shout of "Fire!" is not even speech, in any meaningful sense of that term. " It is a clang sound — the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire, in a theater when there is no fire, and thereby causes a panic. But that obviously would have been irrelevant to the case at hand. The proposition that pulling an alarm is not protected speech certainly leads to the conclusion that shouting the word fire is also not protected, but it certainly does not support the very different conclusion that circulating a thoughtful pamphlet is also not protected. The analogy is thus not only inapt but also insulting. Most Americans do not respond to written political advocacy with the same kind of automatic acceptance expected of schoolchildren responding to a fire drill. Not a single recipient of the Schenck pamphlet is known to have changed his mind after reading it. Indeed, one draftee, who appeared as a prosecution witness, was asked whether reading a pamphlet asserting that the draft law was unjust would make him "immediately decide that you must erase that law." Not surprisingly, he replied, "I do my own thinking." A theatergoer would probably not respond similarly if asked how he would react to a shout of "Fire!" Another important reason the analogy is inapt is that Holmes emphasizes the factual falsity of the shout "Fire!" The Schenck pamphlet, however, was not factually false. It contained political opinions and ideas about the causes of war and about appropriate and lawful responses to the draft. As the Supreme Court has repeatedly stated, "the First Amendment recognizes no such thing as a `false' idea." Nor does it recognize false opinions about the causes of war. A closer analogy to the facts of the Schenck case might have been provided by a person's standing outside a theater, offering the patrons a leaflet advising them that in his opinion the theater was a fire hazard, and urging them not to enter but to complain to the building inspectors. That analogy, however, would not have served Holmes's argument for punishing Schenck. Holmes needed an analogy that would appear relevant to Schenck's political speech but that would invite the conclusion that censorship was appropriate. 29 The core analogy is the nonverbal alarm, and the derivative example is the verbal shout. By cleverly substituting the derivative shout for the core alarm, Holmes made it possible to analogize one set of words to another—as he could not have done if he had begun with the self-evidence proposition that setting off an alarm bell is not free speech. 92 EFTA01091064 4.2.12 WC: 191694 Ironically, the "Fire!" analogy is all that survives from the Schenck case; the ruling itself is no longer good law. Pamphlets of the kind that resulted in Schenck's imprisonment have been circulated with impunity during subsequent wars. Over the years I have assembled a collection of instances— including my own cases, speeches I have heard, articles I have read — in which proponents of censorship have maintained that the expression at issue is "just like" or "equivalent to" falsely shouting "Fire!" in a crowded theater and ought to be banned, "just as" shouting "Fire!" ought to be banned. The analogy is generally invoked, often with self-satisfaction, as an absolute argument stopper. It does, after all, claim the high authority of the great Justice Oliver Wendell Holmes. I have rarely heard it invoked in a convincing, or even particularly relevant, way. But that, too, can claim lineage from the great Holmes. In the coming pages I will describe a series of pornography cases I have litigated. In several of them, those advocating censorship have cited a state supreme court that held that "Holmes' aphorism ... applies with equal force to pornography." Another court analogized "picketing . . . in support of a secondary boycott" to shouting "Fire!" because in both instances "speech and conduct are brigaded." A civil rights lawyer, in a New York Times op-ed piece, analogized a baseball player's bigoted statements about blacks, gays, and foreigners to shouting fire in a crowded theater. I responded with my own op-ed, disputing the analogy. The Reverend Jeny Falwell, in arguing that the First Amendment doesn't protect a parody of him having drunken sex with his mother, invoked the Holmes example: "Just as no person may scream `Fire!' in a crowded theater when there is no fire and find cover under the First Amendment, likewise, no sleazy merchant like Lany Flynt should be able to use the First Amendment as an excuse for maliciously and dishonestly attacking public figures, as he has so often done." In the famous Skokie case, in which I supported the right of neo-Nazis to march through a heavily Jewish Chicago suburb, one of the judges argued that allowing Nazis to march through a city where a large number of Holocaust survivors live "just might fall into the same category as one's `right' to cry fire in a crowded theater."3° Some close analogies to shouting "Fire!" or setting off an alarm are, of course, available: calling in a false bomb threat; dialing 911 and falsely describing an emergency; making a loud, gunlike 3° Outside court the analogies become even more absurdly stretched. A spokesperson for the New Jersey Sports and Exposition Authority complained that newspaper reports to the effect that a large number of football players had contracted cancer after playing in the Meadowlands— a stadium atop a landfill — were the "journalistic equivalent of shouting fire in a crowded theater." An insect researcher acknowledged that his prediction that a certain amusement park might become roach infested "may be tantamount to shouting fire in a crowded theater." The philosopher Sidney Hook, in a letter to the New York Times bemoaning a Supreme Court decision that required a plaintiff in a defamation action to prove that the offending statement was actually false, argued that the First Amendment does not give the press carte blanche to accuse innocent persons "any more than the First Amendment protects the right of someone falsely to shout fire in a crowded theater." 93 EFTA01091065 4.2.12 WC: 191694 sound in the presence of the president; setting off a voice-activated sprinkler system by falsely shouting "Fire!" (or any other word or sound). In one case in which the "Fire!" analogy was directly to the point, a creative defendant tried to get around it. The case involved a man who calmly advised an airline clerk that he was "only here to hijack the plane." He was charged, in effect, with shouting "Fire!" in a crowded theater, and his rejected defense — as quoted by the court — was as follows: "If we built fire-proof theaters and let people know about this, then the shouting of `Fire!' would not cause panic." Analogies are, by their nature, matters of degree. Some are closer to the core example than others. But any attempt to analogize political ideas in a pamphlet, ugly parody in a magazine, offensive movies in a theater, controversial newspaper articles, or any of the other expressions and actions cataloged above to the very different act of shouting "Fire!" in a crowded theater is either self-deceptive or self-serving. Abbie Hoffman, on whose Chicago conspiracy case I worked, once described an occasion when he was standing near a fire with a crowd of people and got in trouble for yelling "Theater, theater!" That, I think, is about as clever and productive a use as anyone has ever made of Holmes's flawed analogy. And it is about the right level of logical response Holmes's silly argument deserves. In a 1989 article I wrote criticizing the Holmes Analogy, I concluded with the following plea: "Let us hear no more nonsensical analogies to shouting fire in a crowded theater. Those who seek to censor speech will just have to come up with a somewhat more cogent illustration — one that bears at least some relationship to real speech." And so, with that in mind, I will turn to the other commonly offered exceptions to the First Amendment, some of which are quite compelling, others less so. In each instance, I will focus on cases I have litigated challenging the exception. 94 EFTA01091066 4.2.12 WC: 191694 Chapter 6 Offensiveness- Pornoaraphy: I Am Curious Yellow and Deep Throat Freedom of speech is not free. The right to say, show or publish often carries a heavy price tag. As kids, we recited the following ditty: "Sticks and stones may break my bones, but names will never harm me." Before too long we learned, often from painful experiences, how wrong it was. Names-such as "kike," "fag," "wop," "nigger," "retard," "sissy," "fatso"—could harm far more than sticks and stones. Lies, rumors, gossip, slurs, insults, caricatures could all be painful. Even the truth can hurt.31 That's why we learn to be "polite"—to self-censor. That's why families, schools, groups and other institutions have rules, sometimes explicit, more often implicit, regulating speech. "We just don't say that kind of thing around here," is a common, if informal, limitation on freedom of expression. It is a far my, however, from an informal family understanding to formal government legislation and enforcement of formal restrictions on expression. I would never use —or allow anyone I love to use—the kind of epithets listed in the prior paragraph, but nor would I want the government to prohibit, under threat of criminal punishment or prior restraint, the use of those or other hurtful or offensive words. You may remember that in the 1970s, the comedian George Carlin listed the seven words that could never be uttered on radio or television. The list included such innocent words as "piss" and "tits." (Use your imagination for the other 5!) Although the list was never officially promulgated by the Federal Communications Commission, the uttering of the prohibited words on a Pacifica radio station that broadcast Carlin's routine led to a Supreme Court decision setting out standards for what could and could not be said during certain hours of the day and night. Carlin's routine also became fodder for other comedians and led to the widespread mocking of any attempts to create lists of approved and unapproved words. Nonetheless, governments have understandably sought to protect some adult citizens32 from being "offended" by the words or expressions of other citizens. Nudists are not free to bare their privates in public, since most people are offended by the sight of other people's naked bodies, thought they may be free to do so in special areas set aside for those who are not so offended.33 I 11 At common law, truth was not a defense to defamation because a "truthful defamation was deemed more harmful than a false one." See Alan Dershowitz, Finding Jefferson (Wiley 2008 pages 104.05). 32 The exposure of such material raises separate issues but the Supreme Court has ruled that the potential exposure of children does not by itself justify censoring adults. See 33 See Dershowitz, The Best Defense, Chapter 5. In any event, the issue of pornography illustrates at least two distinct types of harm that have the alleged basis for prohibiting expression. A related harm grows out of the expectation that certain people who are offended by certain kind of speech will react violently to the offending person. Thus, if a white person confronts a black person and calls him by the "N word," the black person may well respond by striking the offender. Similarly if a Jewish, 95 EFTA01091067 4.2.12 WC: 191694 defended the right of skinny dippers to an isolated section of the Cape Cod National Seashore. (In 197_, a federal district court recognized a limited right to nude sunbathing in areas that present no conflicts with the rights of others. The decision, despite its limited scope was characterized as a "Magna Carta for nudism.") Pornography, like nudity, offends many Americans, but there are those who would ban not only public displays of pornography, but private use as well. They argue that three distinct types of harm are caused by pornography. The first, as with nudity, is that it is offensive to many people who are involuntarily exposed to it. No empirical evidence is required to prove this kind of harm: if people say they are offended, that is the end of the matter. The second is that some people are offended by the mere knowledge that other people, who are not offending by watching it, are watching it in private. Whether this type of what I call "vicarious offensiveness" warrants an except to the First Amendment raises profound legal issues. The third, very different, kind of harm is that pornography is alleged to cause rape and other physical violence against women. This allegation, which if true would warrant legal protection, is hotly disputed and unproven, if not improvable.34 Muslim, Italian, Irish, Polish or gay person is confronted with a word or name deeply offensive to him or his group, he might respond by striking back. Hence, such provocatively offensive expressions have been called "fighting words" and have been denied First Amendment protection by some courts over the years. This concept has assumed center stage recently, as some Muslim groups, individuals and even nations have threatened violence in response to the publication of "offensive" books, cartoons and other media critiques of Islam and its prophet. The stakes have also risen. Instead of merely fighting words, some radical Muslims regard insults to the prophet as killing and bombing words. 34 The issue is somewhat complicated, because it may be true that certain kinds of violent pornography (as well as violent non-pornography) may be contributing factors in certain people's decision or propensity to rape, just as alcohol or other drugs may be contributing factors. What is undeniably clear is that only a miniscule fraction of men who view pornography go on to rape or commit violence, and that a great many rapists do not view pornography. See Alan Dershowitz, Why Pornography? in Shouting Fire (Little Brown, 2002) pp. 1630.1675. 96 EFTA01091068 4.2.12 WC: 191694 I am Curious Yellow My initial professional encounter with the First Amendment involved a direct challenge to the concept of offensiveness in the context of a Swedish anti-war film called I Am Curious Yellow. The story involved a young girl coming-of-age both politically and sexually during the Vietnam War. It included several scenes in which she was nude and engaged in sexual activities. By today's standards, it could be shown on cable television and in art theater with an R rating, but in the late 1960s, it was scandalous. (The young girl who played the lead role, and also starred in an Ingmar Bergmann film, recently died at the age of 66, thus bringing home to me how much time had passed). The film was seized by US Customs and banned throughout the country. Grove Press, a radical publishing house in New York, owned the film and retained me to argue for its protection under the First Amendment. I don't recall whether I charged a small fee or whether I took the case pro bono, but I put everything I had into my new found role as part time litigator on behalf of my beloved First Amendment. I decided on a bold challenge to the traditional power of the government to censor obscene material—indeed to censor any "offensive" material shown only to people who aren't offended by it. Instead of arguing that the film itself was not obscene, I decided to argue that it was none of the government's constitutional business to act as a board of censors—to tell its adult citizens what they could and could not watch in the privacy of a movie theater that was off limits to children and that did not advertise in a pandering manner that would reasonably offend people outside the theater. There was no legal binding precedent for such a challenge. Indeed the Supreme Court had just recently reaffirmed the power of the government to ban and prosecute obscenity, as an exception to the freedom of speech. In this respect, my bold and unprecedented challenge was much like the one I helped Justice Goldberg devise against the death penalty, with the difference being he was a Justice of the Supreme Court, while I was a novice lawyer litigating my first case. What both challenges shared was a large dose of chutzpah. The leading case affirming the power of government to censor porn was Roth v. United States. But in a more recent case, Stanley v. Georgia, the court carved out an exception to the exception. A divided court ruled, in an opinion by Justice Thurgood Marshall, that the state had no power to prosecute an adult for merely possessing obscene material—in this case some old stag films—in the privacy of his home. The ruling was a combination of 4th Amendment (the right of privacy in one's home) and lg Amendment principles and was somewhat unclear about its reach, because it went out of its way to reaffirm the holding in Roth that obscenity was not protected by the First Amendment. I decided to try to use the Stanley case as a battering ram against the very idea that government has the power to tell adults what films they could watch in a theater. The mechanism I chose for this attack was to challenge the constitutionality of the Massachusetts obscenity statute under which the owner of an art theater located across the street from the famous Boston Symphony Hall was being prosecuted for showing I Am Curious Yellow. 97 EFTA01091069 4.2.12 WC: 191694 In those days, a challenge to the constitutionality of a state statute could be brought in front of a three judge district court with the right to appeal its ruling directly to the Supreme Court. The criteria for bringing such a challenge, particularly if one were seeking an injunction against a state prosecution, were quite narrow. Nevertheless, we decided to try it. We asked the three judges to enjoin the Boston prosecutor, a man named Garrett Byrne, from prosecuting the theater owner. The three judges we drew were not a promising crew. When I learned that Judge Aldrich would preside over the panel selected to hear the I Am Curious Yellow case, I was concerned that he would remember the incident we had when I turned down his invitation to speak at his restricted club, and hold it against me. I didn't know the other two judges, both of whom were Italian American and Catholic. One of them, Judge Julian, had anglicanized his original Italian name, but his strict Catholic upbringing and world views became evident throughout the hearing. The third judge, Raymond Pettine, was from Providence, Rhode Island and he surprised me with his apparent liberalism. I argued the case for several hours over three separate days. I began by presenting my broad challenge to the power of the state to regulate the content of films shown in adult-only theaters: If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our constitutional heritage rebels at the thought of giving government the power to control mens' minds. I argued that the ruling in the Stanley case was analogous to what was occurring in our case: There is no distinction in law, in logic, in common sense between the individual [watching a film at home or] deciding to go to a movie theater [and] pay his $2.50 or $3. I could see skepticism in the faces of the judges—they did not seem to see any connection between the Stanley case and this one—as I continued with my argument: I submit that it's indistinguishable whether a person makes a private, individual decision to go to a movie theater and there to satisfy his intellectual and emotional needs in the company exclusively of voluntary people, people who have sought out and decided to see this film (with the possible exception of a few policemen and officials who see this film because of business reasons and who may indeed be offended by what they see, but with respect, it's part of their job.) I acknowledged that "the Supreme Court ruled only on [home] possession in the Stanley case," but I argued that there was no real difference between possession and exhibition: 98 EFTA01091070 4.2.12 WC: 191694 Surely Stanley could not have been prosecuted under Justice Marshall's decision if he were caught putting the film in the 8mm projector and showing the film to himself or his friends in the privacy of his basement. Judge Aldrich immediately expressed skepticism about the reach of my argument, suggesting that the Stanley decision wasn't relevant to a movie theater. He told me about his grandmother who "once went to a movie entitled Sur Les Troits de Paris. She thought it was a travelogue. She didn't after she got there of course...I heard about it." I assured him that we had dealt with that problem by providing a "prologue" that advises the audience who are admitted only before the film begins what they are about to see: "the story of a young girl who is trying to work out her relationships. There are a number of scenes which show the young girl and her lover nude. Several scenes depict sexual intercourse under various circumstances, some of them quite unusual. If you believe that you would be offended or embarrassed by the showing of such scenes, you are invited at this time to obtain a refund of your admission at the box office." As Judge Aldrich continued to press me about his grandmother's sensibilities, I was reminded of the old Jewish joke about the man with the broken watch who goes into a storefront window and asks the man behind the counter to fix his watch. "I don't fix watches. I perform circumcisions," the man replied. "Then why do you have clocks and watches in your window," the customer wondered. "What do you think I should put in my window?" the store owner responded. I had that joke in my head when I offered the following argument to Judge Aldrich: If a store were to open in Boston which was simply marked "Pornography Shop," it had nothing in the window, it had no advertising, it was a place where people like Stanley could come and quietly and discreetly purchase their 8mm films, [I submit] that Stanley vs. Georgia would proscribe prosecution of that seller. I submit that necessarily if there is this right to exercise one's freedom to read and see a film, there is necessarily the concomitant right to purchase it. But the state has a great interest in making sure that the purchasing is not done in a way that intrudes on sensibilities or intrudes on other legitimate interests. The judges pressed me on whether obscene films, even when viewed in a restricted theater, could cause viewers to go out and commit crimes such as rape. I responded that if that were true, it would be just as likely—perhaps even more so—that a person watching such films alone in his basement would be influenced in that manner. I argued that Stanley had implicitly rejected that theory. The questioning persisted, with Judge Julian wondering whether Judge Aldrich's aunt was typical: 99 EFTA01091071 4.2.12 WC: 191694 As a matter of common sense though, unless we are to be so gullible as to be incredibly gullible, don't the great vast majority of the people who go to a theater to see a film like this know what they're going to see? MR. DERSHOWITZ: Precisely. JUDGE JULIAN: So this prologue is a lot of nonsense, just a gesture to try to wipe out-- JUDGE ALDRICH: He's looking after my grandmother who went to see Sur Les Toits De Paris. MR. DERSHOWITZ: The only valid basis for punishing obscenity ...is to protect people [like Judge Aldrich's grandmother] from being offended, from having something thrust on them in an unwilling manner and also to protect youngsters. When I then advised the court that under my theory, the judges would not have to view the film. Judge Aldrich immediately interjected: "Are you trying to bribe us to decide the case so we don't have to see the film?...I will admit that's the best bribe I have ever been offered." Judge Julian did not seem to understand my argument. He kept asking me whether I wanted the court to assume that I Am Curious Yellow was not "pornographic." I tried to explain: "It's exactly the opposite. We do not ask you to decide whether or not the film is pornographic. We are asking you to decide that the film shown in a nonobtrusive way, advertised in the way that it's been advertised right from the beginning, with no hint, no suggestion of obscenity or prurience, played, if you wish, with the warning being given, although there have been no complaints by a single viewer of the film that he's been offended—because your Honor is of course right: everybody knows what they're going to see—exhibited in that manner, the film is protected by the First Amendment without regard to its contents." Judge Julian then questioned me about whether this case was really about money, rather than freedom of speech, because Grove Press was a commercial distributor of films for profit: JUDGE JULIAN. These people are exhibiting this film for the box office receipts, are they not as a fact? Mr. DERSHOWITZ. The New York Times is selling its papers for the box office receipts as well. 100 EFTA01091072 4.2.12 WC: 191694 JUDGE JULIAN. Let's talk about this film not the New York Times. Isn't this film being exhibited for the primary purpose and perhaps...for the only purpose of getting money at the box office? Isn't that the actual fact? Mr. DERSHOWITZ. Your Honors, that fact is utterly irrelevant, I would submit. JUDGE JULIAN. But is it the fact though? Mr. DERSHOWITZ. I don't know. I can't probe Mr. Rosset's mind, who is the president of Grove Press...I think he probably has very mixed motives. •• • JUDGE JULIAN. That's what troubled me immensely, to see the First Amendment used for the sole and obvious purpose of making a profit and for no other purpose. Mr. DERSHOWITZ. Well, I would submit that most politicians that get up and make political speeches are doing it for a motive which is not unrelated to that. Yet we don't probe the motives of Presidents and Vice-presidents and Senators in speaking. Nor should we probe the motives of newspaper publishers and film producers. JUDGE JULIAN. Perhaps they should be probed. Mr. DERSHOWITZ. I think the First Amendment would be virtually a dead letter; [if] we would only permit people to speak who spoke simply for art for art's sake or politics for politics' sake... Here we're talking about something where money is being paid in order to show the film and nobody can suggest that the film should be shown in this country for free or at cost. There would simply be no films being manufactured in this country and that aspect of the First Amendment will have substantially suffered. I then returned to my distinction between an enclosed theater and an open display. If Grove Press were to put up a billboard...above a large area where people congregate and there were to be an alleged obscene picture on the billboard, and the state were to try to enjoin that, I would have to [concede that there might be some harm to people who didn't want to be exposed to obscenity.] JUDGE JULIAN. That's a very generous concession. Mr. DERSHOWIZ. But in this case I do submit nobody is being exposed to anything that he doesn't want to be exposed to at all. The only thing that people are being exposed to is the fact that they know that a film is being played in Boston or in Springfield, and that fact, if it offends people, is not entitled to constitutional protection so long as they can avoid being exposed directly to the contents of the film. Judge Aldrich was intrigued by this last point and said that he wished to pursue it further. I knew I was in for some tough questioning: 101 EFTA01091073 4.2.12 WC: 191694 JUDGE ALDRICH. I wish to pursue that point. I happen to be very straight laced. Every time I walk down through Harvard Square and I see there is a movie going on there that I know is obscene, of course, I don't have to go in. I can protect myself. But I'm offended by the fact that I see all these students who are age 21 and a half going in and that we are maintaining in my home town, in which I have such great pride, we are maintaining this house-I use the word "house" advisedly—filthy pictures are being shown. Do I have any interests or rights? Judge Aldrich had put his finger directly on the vicarious offensiveness rationale for censorship. I needed to come up with an answer that didn't devalue his concerns (and his grandmother's). Mr. DERSHOWITZ. It seems to me you have an interest but no right...I can understand how you would be offended by that. But one of the prices of living in a complex society, with freedom, is for you to have to simply tolerate the fact that you know that certain people are engaging in conduct that you don't approve of. That was precisely the argument made by the State of Connecticut in the birth control [clinic] case.35 They said that people of the State of Connecticut are offended by knowing that this kind of immoral conduct is being engaged in by people, married people, all over the State. And the Supreme Court did say that this is something that members of the society must tolerate in a pluralistic society. There are a great many things which offend me, to know that they're going on in peoples' homes-I have an interest in that, but I don't think I have a protected constitutional right [to be] disturbed about what's going on. Judge Julian asked whether "that interest [should] be legally protected?" Mr. DERSHOWITZ. Now, there may be ways of protecting it, perhaps through zoning regulations... But if the issue is total banning on the one hand as against your interests being protected against knowing people are doing this kind of thing, I would submit that the Constitution has a clear answer to that. It must permit the film to be shown in a way to minimize your exposure to it and to permit you both fully to see and to avoid being exposed to the contents of the film. So I do submit that your Honor does have an interest and I can understand it. But I think you will realize that on balance this interest could be used to upset almost every kind of freedom that Americans ought to be at liberty to engage in." Judge Aldrich seemed intrigued by our argument, while continuing to press me hard on its implications. At one point Judge Aldrich asked me what I would do if the Supreme Court ruled against my theory. "Will that be the end of the road...?" 35 Griswold v. Conn 102 EFTA01091074 4.2.12 WC: 191694 I responded: "Well, I, as an attorney, will continue to urge the Court to accept this principle because I think it's the correct approach to the regulation of obscenity." Following three days of intensive argument and questioning, the three judges issued a decision written by Judge Aldrich. He bought my argument totally. He began by accepting my assumption about the nature of the film: For purposes of this case we assume that the film is obscene by standards currently applied by the Massachusetts courts. He then went on to discuss the implications of the Stanley decision, which the prosecutor had argued was "irrelevant" to this case and which, at the beginning of my argument, thought was not relevant to movie theaters: In Stanley [the] Court held that in certain circumstances possession of a moving picture film is constitutionally protected even though by contemporary standards the film is obscene. We do not consider this irrelevant. The Court then went on to consider the state's argument that an obscene film, even viewed in a restricted theater, can induce the viewer to commit rape. The question is, how far does Stanley go. Is the decision to be limited to the precise problem of "mere private possession of obscene material," is it the high water mark of a past flood, or is it the precursor of a new one? Defendant points to the fact that the court in Stanley stated that Roth v. United States, was "not impaired by today's holding, and in the course of its opinion recognized the state's interest there upheld in prohibiting public distribution of obscenity. Yet, with due respect, Roth cannot remain intact, for the Court there had announced that "obscenity is not within the area of constitutionally protected speech or press," whereas it held that Stanley's interest was protected by the First Amendment, and that the fact that the film was "devoid of any ideological content" was irrelevant. Of necessity the Stanley court held that obscenity presented no clear and present danger to the adult viewer, or to the public as a result of his exposure. Obscenity may be offensive; it is not per se harmful. Had the Court considered obscenity harmful as such, the fact that the defendant possessed it privately in his home would have been of no consequence. The Court then rendered its conclusion: We confess that no oracle speaks to Karalexis unambiguously. Nonetheless, we think it probable that Roth remains intact only with respect to public distribution in the full sense, and that restricted distribution, adequately controlled, is no longer to be condemned. 103 EFTA01091075 4.2.12 WC: 191694 If a rich Stanley can view a film, or read a book, in his home, a poorer Stanley should be free to visit a protected theater or library. We see no reason for saying he must go alone. It was the first time in history that a court—any court—had ruled that the government had no power to ban or prosecute an "obscene" film that was shown to the public in a theater. I had achieved a total victory not only for my client, but for my novel approach to offensiveness under the First Amendment. It was a heck of a way to begin my career as a lawyer. The victory would, however, be short lived, at least in theory, if not in practice. Not surprisingly, the District Attorney appealed our victory to the Supreme Court, which accepted the case. I was asked to argue for Grove Press. And so, at the age of 31, I argued my first case before the High Court. I had prepared extensively for my oral argument. I expected to be questioned aggressively by the recently appointed Chief Justice Warren Burger, who I had known when I clerked for Judge Bazelon. Burger and Bazelon were arch enemies, both ideologically and personally. Burger knew I was close to Bazelon, and so I expected some tension, but I could not anticipate what awaited me. I had hardly reached the lectern to begin my argument, when Chief Justice Warren Burger asked if he could "interrupt" to inquire whether I thought a state had the power to prohibit a "bear-baiting contest." I didn't know exactly what a bear-baiting contest was, but I guessed that it must involve considerable cruelty to bears. I responded that the act of bear- baiting was not protected by the Constitution, since the states have the power to protect animals from suffering. I tried to get the argument back on the film in question: "I think the example would be better if it were a film of bear-baiting." But the Chief Justice interrupted me once again: "Let's stay on the live." I drew a distinction between an act that harmed another creature and a film of consensual lovemaking that did not intrude upon the sensibilities of those who chose to view it. The Chief Justice shot back: [Yjour are saying that it's all right to kill one bear and five dogs in the filming process, but it isn't right to kill many more of them in live showings, is that a distinction.... I had no idea what he was getting at with his scripted questions, so I tried again: No I would say a state would have the right to prohibit the actual killing of dogs and bears whether for film or other purposes. The Chief Justice persisted in his obsession with bears! Let's say 14 states didn't have any statutes against bear-baiting, and 4.5 million had watched bear baiting or the filming of bear baiting. Would that have the slightest relevance in your judgment on whether the showing of bear baiting in Boston, Massachusetts, could or could not be stopped...? 104 EFTA01091076 4.2.12 WC: 191694 I tried to direct my answer away from bear-baiting and to the issue of whether the Constitution permitted a consenting adult to view an obscene film in the privacy of a restricted movie theater: No, the First Amendment protects the individual's right to receive information necessary to satisfy his emotional and intellectual needs. The thrust of our [position would take prosecutors] from [inside] the theater—that is only attended by people who want to go— and would put them outside the theater to protect you and me from the intrusion on our sensibilities that would occur if movies...thrust advertisements or pictures on unwilling viewers. But the Chief Justice would still not be diverted from his bears. Though I had never mentioned a bear in my answer, he challenged me: Are you suggesting that it is a universal rule that everybody is offended by bear-baiting, for example? That, of course, was precisely my point: those who were not offended should be free to watch a film in which no one was hurt. Finally, the Chief Justice asked me about theaters: [H]ow about moving the bear-baiting into a theater and charging $5 admission for it? I don't want to overwork you on the bear-baiting, but in order to have a film of bear- baiting, you've got to go through unlawful process in the first instance. With less than a minute before my time had expired, the Chief Justice asked whether I thought the analogy to the bear-baiting contest was "valid." I politely told him what I thought: I think the analogy of bear-baiting is not valid [because it] is an illegal act which hurts animals. It is different from [lovemaking] presented on a screen to a public which has chosen to view it. By this point my time was nearly up. I quickly summarized my argument that under a functional definition of privacy A theater with its curtains drawn deserves [at least as much constitutional protection as] a home with its shades drawn up. The Chief Justice had monopolized the entire argument with his bear-baiting analogy. He 9or his law clerIcs0 had apparently prepared a series of questions for me about bear baiting and Burger had simply gone down the list ignoring my answers. The other eight justices were unable to ask questions, though several of them seemed anxious to probe certain points. Some of them seemed embarrassed by their Chief's performance. By the end of the argument, I finally understood what a bear-baiting contest must feel like—at least to the bear. It was not only the dumbest series of questions I have ever been asked during an oral argument—with at the possible exception of those put to me by a senile judge about the facts of the next case scheduled 105 EFTA01091077 4.2.12 WC: 191694 for argument. It was probably the stupidest conversation I've ever had with anyone about the First Amendment. But no one ever said that intelligence was a criterion for being a judge, or even a Chief Justice. What mattered to Warren Burger was that he looked like what a Chief Justice is supposed to look like! A few months later the Supreme Court rendered a 5 to 3 decision in the I Am Curious Yellow case that did not reach the broad issue decided by the district court (nor did it mention bear- baiting); instead, it decided the case on a narrow procedural ground. We eventually settled the case to the advantage of the defendants. The film was shown throughout the country and no one went to prison. Judge Aldrich's opinion, suggesting that all censorship of the content of movies exhibited to adults in discreet settings was unconstitutional, remained the only court decision on that issue until June of 1973, when the Supreme Court changed the definition of obscenity in a case called Miller v. California and a series of companion decisions. In these cases Chief Justice Burger, writing for the majority, expressly and emphatically rejected the approach I had argued in the I Am Curious Yellow case. We categorically disapprove the theory...that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only...The States have a long-recognized legitimate interest in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. But as I promised Judge Aldrich, I continued to press my principle in the court of public opinion and in a series of other obscenity cases over the next several decades. Ultimately my view would prevail, if not in law then certainly in practice, as we shall see. Chief Justice Burger may have won in the courthouse, but we won in theaters and on television sets throughout the nation, as sexually explicit films-far more explicit than I Am Curious Yellow—became pervasive and "legal" in fact if not in law. This disparity between the law, as set down in theory by the Supreme Court, and the law, as implemented in practice throughout the country, is an interesting story in itself. 106 EFTA01091078 4.2.12 WC: 191694 Deep Throat: Why I Chose Not to Watch It My initial victory in the I Am Curious Yellow case—getting a three judge court to declare unconstitutional all obscenity laws that applied to adults-only theaters—made me something of a hero in the "adult film" industry—and something of a pariah in the radical feminist community. (More about the latter soon.) Many "obscenity" clients came my way, including the musical play Hair which was "banned in Boston" and several "soft core" films such as the very forgettable "Belinda"36 and the unforgettable hard core film, Deep Throat.37 I'm told that Deep Throat is a very hard core and very bad movie. I can't personally attest to these claims because, to this day, I have not seen it.38 I avoided seeing the film not because I'm a prude—I enjoy a good erotic movie as much as the next guy—but rather because I wanted to make a point about the law of obscenity: the decision to watch or not to watch a particular film should be a matter of choice for every adult citizen. Just as I told the judges in the I Am Curious Yellow case that they didn't have to view the film in order to rule that an adult had the constitutional right to view it in an adults-only theater, so too I had the right to argue that position without myself viewing Deep Throat. To paraphrase my earlier case, I was "curious" about Deep Throat, but cared more about the principle of choice. I also believed that my not viewing the film was a good tactic that helped to dramatize my point. I decided to use that tactic in two separate cases involving the Deep Throat case. The first was the prosecution of porno-actor Harry Reems for his role as an actor in the film. Reems was the first actor in history ever to be prosecuted for the crime of obscenity. He was charged with participating in a nation-wide conspiracy to transport an obscene film in interstate commerce. The United States government charged him with conspiracy because Reems himself had nothing to do with distributing the film in interstate commerce. As the prosecutor acknowledged: "[Reems] made the film, got his money and got out back in 1972, that is, he didn't do anything else as a part of the conspiracy, he didn't do any more overt acts, he didn't participate any further, and the question arises why in the thunder does he wind up being charged [with acts that took place] four years later?" His answer was that "once a person joins a conspiracy, he is liable for everything that happens in that conspiracy until it is ended." (Reems once asked me whether he could have been charged with murder under the prosecutor's theory, if some strong-arm methods used by the distributors had resulted in a death years after the film had been completed. I told him that—under the prosecution theory—he could charged with that crime.) 16 See The Best Defense pages 174.78. 37 I was also involved—either as a defense lawyer, consultant or commentator—in the defense of several magazines and books. See e.g. Dershowitz, Shouting Fire, pages 33 During a preview of a film off Broadway about the Deep Throat controversy I saw some soft core excerpts. They were Clod awful. 107 EFTA01091079 4.2.12 WC: 191694 In order to get out of the conspiracy, according to the government, Reems was obliged "to take up affirmative actions to defeat and destroy the conspiracy." But what could Reems have done? He could not have "exposed" the crime, as one might expose a secret conspiracy, since everyone knew that Deep Throat was being distributed throughout the world. He could not have prevented the distribution and exhibition of the film, since he retained no legal rights to it. The prosecutor apparently expected him to physically destroy the thousands of prints of Deep Throat that were then in theaters and on video. The jury, selected from residents of Memphis, a city proud of being called "the buckle of the Bible Belt," convicted Reems and his co-conspirators and Harry went off in search of an appellate lawyer. Because of my involvement in the I Am Curious Yellow case, he called me. When we first met, Reems described himself to me as "a nice Jewish boy earning his livelihood by doing what lots of people would pay to do." He was born in Scarsdale, New York, with the name Herbert Streicker, attended the University of Pittsburgh, dropped out, joined the Marines, and later set out to become a stage actor. He had performed with the La Mama troupe, the New York Theater Ensemble, and the National Shakespeare Company in New York City. He had even done a Wheaties commercial. During Christmas of 1969, "when things got rough and there was no work around...,a fellow said he knew where I could make $75 doing a stag film." He nervously accepted and reported for work. His two female costars, both doctoral students in sociology at NYU, put him at ease, and he completed several "loops." Streicher was successful, not so much because of his looks or size, but rather because of his extraordinary ability to perform repeatedly on cue. In a business where time is money and the major cause of delay is male incapacity, a porno actor capable of filming several sequences in one day's shooting is in demand. Streicker told me how he ended up as the male star of Deep Throat. He had been hired—at $150 per day—as a sound and lighting technician for a sex film being shot near Miami, Florida, in January 1972. When the original male lead failed to appear, the director, Gerard Damiano, asked Streicker to fill in—at a $50 cut in salary. Since it took only one day to shoot the film's sex shots, he earned only $100 for his performance. His contract did not call for royalties. When the filming was completed, Streicker's role in the enterprise was over: he did not participate in the editing or distribution of the film—not to mention its enormous profits. Even his stage name "Harry Reems"-with some vague sexual allusion in mind—was picked by the director, without even consulting Streicker. He was pleased, of course, that the film was well-received and widely shown. He retained "Harry Reems" as his professional name, and performed in several other sex films. But his role in Deep Throat was over, or so he thought, until he was arrested two years later in his Greenwich Village apartment. An FBI agent handed him a warrant requiring his presence in Memphis, Tennessee, a city that Streicker had never even visited. The prosecuting attorney was a young Bible Belt fundamentalist named Larry Parrish. (The names of all the participants sounded like puns: Reems, Streicker, Lovelace, Parrish.) Parrish was dubbed by the press as "Mr. Clean," "The Memphis Heat," and "the Memphis Smut Raker." A born-again Christian, and an elder in the First Evangelical Church, Parrish believed that pornography was the bane of modern America. He once told a reporter, "I'd rather see dope on the streets than these movies," explaining that drugs could be cleansed from the body, but 108 EFTA01091080 4.2.12 WC: 191694 pornography's damage was "permanent." When asked why be became a prosecutor, Parrish cited the warning to evildoers in Romans 13:4, that God had appointed ministers on earth to carry out his wrath against them. He believed it was his mission to conduct "search and destroy" operations against the porno industry. As a prosecutor of pornography, he had already secured more than forty convictions. Many observers saw the decision to bring Reems to trial as evidence of Parrish's creativity. As a Memphis lawyer, familiar with Parrish, put it: "Parrish figured that putting an actor on trial was the way to get publicity [and] a man is less likely to pick up public sympathy than a woman." Parrish acknowledged that his purpose in prosecuting Reems was to made it clear that no one involved with a porno film was immune from criminal liability. Reems came to see me after he had been convicted and was facing years in prison. He wanted me to argue his appeal. He told me he had no money and asked me to take his case on a pro bono basis. I agreed. I told him I preferred not to watch the film and explained to him my theory of "choice" and "externalities," but assured him that I would make every argument that had any chance of freeing him. There's an old saying that goes this way: "If you have the law on your side, bang on the law. If you have the facts on your side, bang on the facts. If you have neither the law nor the facts on your side, bang on the table." I have never believed that, but I do believe in a variation on that theme: If you don't have the law or legal facts on your side, argue your case in the court of public opinion. In the Reems case, the Memphis jury had rejected Reems' factual defense, and the judge had rejected his legal defense. The Supreme Court had rejected my "choice" and "externality" approach. I continued to believe, however, that the broader general public, or at least the most influential segment of the public, would be sympathetic to my libertarian approach to obscenity and free speech, especially in the context of an actor who was being prosecuted. Reems, to be sure, was not Helen Hayes or Marlin Brando, but to make the point that the principle was the same, we adopted the following slogan: "Harry Reems today, Helen Hayes tomorrow." We made a determined effort to elicit support from the mainstream entertainment industry and from the media. We succeeded in getting The New York Times to cover the case. Its initial story told how the Reems prosecution was first seen "as a joke," but is now being understood "as a very serious issue": With Mr. Dershowitz as the lead lawyer and the American Civil Liberties Union and other prominent groups and individual prepared to help, Mr. Reems has some of the country's most impressive legal talent working on his appeal. He also has the support of some of the country's best known entertainers: Colleen Dewhurst, Ben Gazzaza, Mike Nichols, Stephen Soundheim...Warren Beatty, Jack Nicholson and Gregory Peck. As Mr. Dershowitz interprets the Deep Throat case, "Any person who participates in any way in the creation, production, editing or distribution of a sexually explicit film, 109 EFTA01091081 4.2.12 WC: 191694 newspaper, book, painting or magazine can be hauled into a Federal court anywhere in the United States and charged with participating in a national conspiracy." Shortly thereafter, Nat Hentoff wrote a long front-page analysis of the Village Voice. Hentoff warned his readers of the consequences of a government victory in the Reems case. Alan Dershowitz, a Harvard Law School professor and one of the nation's preeminent constitutional lawyers, has never been known as an apocalyptic civil libertarian. Accordingly, when Professor Dershowitz speaks of the recent criminal convictions in a porno-film case as being so chilling as to ultimately also freeze the printed word, the warning is a weightier than if it had come from those who habitually clamor that the constitutional sky is falling... Should the verdict against Harry Reems be sustained, obscenity indictments throughout the country will pyramid. Hentoff explained that the implications of the Reems prosecution go well beyond obscenity. If a conspiracy charge like this one was to be upheld on appeal, the government could make dangerous use of that precedent in political cases involving, for example, antiwar activists. Hentoff then quoted my legal argument: "[H]ere was an actor who, on the one day he worked on Deep Throat, had no idea what the ultimate film was going to look like. He knew it was a sex film, but he had not seen any script in advance. There was no way he could know whether it was going to be soft core or hard core. And, in fact, Harry never even saw the film before it was released. Yet he's convicted of a conspiracy to move the film, in the form it finally took, across state lines." Following the publication of the Hentoff article had, hundreds of readers came forward and volunteered their assistance. It also generated numerous other stories—presenting our side of the case. KING OF THE PORNO ACTORS FINDS HIMSELF IN DEEP THROES IN TROUBLE UP TO HIS THROAT HOW HARRY GOT REAMED DEEP THREAT PORN'S DEEP GOAT REEMS SHAFTED IN BIBLE BELT Reems and I crisscrossed the country, speaking at universities, town halls and other venues. Our appearances were widely covered by the media. The New York Times described a joint appearance at the Harvard Law Forum: Harry stood with a portrait of Supreme Court Justice Felix Frankfurter beaming down on him. Besides him sat Alan Dershowitz, looking like a tweedy Marx Brother with his wild nimbus of ash-blond hair, saying that he felt Harry Reems' trial was the most significant First Amendment conspiracy case since Dr. Spock. 110 EFTA01091082 4.2.12 WC: 191694 Dershowitz acted as a sort of kibitzer for Harry. He noted that the crew of the Glomar Explorer, [which] had been shown a videotape of Deep Throat, had more to do with transporting obscene material in interstate commerce than Harry Reems did. Would Larry Parrish prosecute them? When I asked Parrish, he said: "They're not insulated against prosecution." Not all the stories were flattering. Mike Royko complained in a syndicated article how depressing it was that after two hundred years of men like Jefferson, Paine, Debs, and Darrow, "we are now asked to fight for the right of Harry Reems to be a public creep...Anybody who contributes to his defense fund," Royko concluded, "is a mental moonbeam." But people contributed and Reems and I persisted in making our case in the court of public opinion. In time, the publicity had its intended effect on the public, on the Justice Department, and on the courts. We began to get the message that the Reems conviction was an embarrassment. This was exactly what we had hoped would happen. In the end, the Justice Department decided to drop the case. Reems' conviction was vacated and his indictment was dismissed, over the strong objections of the Memphis prosecutor and judge. We did not have the law on our side, but we did have public opinion. We might have lost our case in the court of law (or won it on grounds other than my "choice", "externality approach,") but we had clearly won in the court of public opinion.39 Harry Reems went free, retired from the porn business, became a born-again Christian and moved to Utah, where he sold real estate. As my legal "fee" for winning his freedom, he sent me a photograph of him with the following inscription: "To Alan Dershowitz who me everything I know." The First Amendment was safe from the likes of Larry Parrish—at least for a time. My second encounter with Deep Throat presented a more daunting challenge to my theory. It took place on my home turf of Harvard, and the people urging criminal prosecution were Harvard students. The people who these students wanted to see prosecuted were other students, one of whom eventually became a founder of Microsoft. It all began with some drunken Harvard College students viewing the film Animal House and throwing beer cans at the screen and damaging it. The Quincy House Film Society was responsible for the screen. In order to raise the several hundred dollars needed for repair, they decided to show Deep Throat. Some women students who lived in Quincy House protested. "This is our home," one complained. "We shouldn't have to be subjected to abuse and degradation right in our own living room." The uproar had caught the film society by surprise. The showing of Deep Throat had become a pre exam tradition at many colleges. My own nephew sponsored a showing at MIT. It was seen 39 I relate the other legal theories on which we might have won the case in The Best Defence pages 155.174. 111 EFTA01091083 4.2.12 WC: 191694 as a lark, an escape from the tensions of the tests. But feminists were beginning to take pornographic movies, especially Deep Throat, quite seriously. Several weeks prior to the scheduled showing, Gloria Steinem had written an article in Ms. magazine about Deep Throat and the exploitation of its female lead, Linda Lovelace. Pointing to the $60 million allegedly made on the film, Steinem characterized Deep Throat as "a national and international profit center and dirty joke." At the heart of the joke was Linda Lovelace "whose innocent face offered movie-goers the titillating thought that even the girl-next-door might be the object of porn-style sex." But, according to Steinem, it was a joke with widely felt consequences: "Literally millions seem to have been taken to Deep Throat by their boyfriends or husbands (not to mention prostitutes by pimps) so that each one might learn what a woman could do to please a man if she really wanted to." Moreover, Linda Lovelace was now claiming that her innocent face had been a mask covering up a battered wife who had been imprisoned by her husband-pimp. Several years after the completion of Deep Throat was completed, Lovelace wrote an autobiography entitled Ordeal, in which she told a sordid story of how she had been compelled to perform her "sexual sword- swallower trick" at gunpoint. After reading Ordeal I called Reems and asked him whether his recollections of the filming of Deep Throat corroborated her claim that she had been forced into performing. Harry, who was then working off-Broadway in a stage play, laughed and said, "Are you kidding? Sure her husband, Chuck, was an asshole, but he was hardly around during the filming. Damiano sent him away because he would get jealous of how much she was enjoying the sex. She was really into it. We had a good relationship before and during the filming." I told Harry that Lovelace had written that when "she saw how upset Chuck was, [she] decided [she] would pretend to enjoy it with Harry." I asked whether it was possible that she was only acting. "Linda Lovelace acting?" Harry exclaimed. "Have you seen her in a film? She couldn't even pretend to be acting." Whether true or false, Lovelace's account struck a responsive chord among many feminists. Gloria Steinem's article presented a sympathetic portrait of Lovelace as the victim of everything the "sleazy pornocrats" had come to represent. Using Lovelace's Ordeal as a symbol of sexist repression, many feminists declared all-out war against pornography. The movie Deep Throat came to symbolize the anti-women evils of the sex industry. And I became the symbol of the "pomocrat lawyer," getting rich off the suffering of exploited women (even though I charged nothing for these cases). The organization through which Gloria Steinem spoke—Women Against Pornography— advocated boycotts as its primary weapons in the war on porn. The boycotts were directed not only against theaters and bookstores, but against lawyers who represented them on First Amendment grounds. When I and several friends opened a Kosher deli in Harvard Square, it was picketed with signs of saying "How can a porn pig serve Kosher food?" 112 EFTA01091084 4.2.12 WC: 191694 Although boycotts are themselves protected by the constitutional right of free expression, civil libertarians are appropriately concerned about the effect of overly broad boycotts, such as those directed against general bookstores. We remember that boycotts had been employed widely during the McCarthy period. The threat to boycott motion-picture studios and television stations that employed "red," "pink," or "suspect" actors, directors, or technicians, led to the notorious "black lists" and "red channels." In an interview with Playboy magazine, I had expressed some of those concerns: "Take what [some of these] women are now doing and ask yourself the question. Would you favor it if their objection were to books about atheism or communism instead of pornography? If you would say no, then it seems to me that you can't be in favor of a boycott against stores that sell Playboy and Penthouse, because they're equally protected. The dispute between civil libertarians and feminists had split the ranks of some liberals, and the issue was achieving some notoriety in the media. I had, perhaps, added some fuel to the fire by my criticism of the "new feminist censors" in several articles and speeches. I did not deny that some pornography could be degrading to women, but I argued that it is precisely the function of the First Amendment to protect those whose speech offends and degrades. I pointed out that some of the most vocal opponents of pornography inadvertently provided the most compelling arguments for its constitutional protection by characterizing it as "Fascist propaganda." (The Fascists, not surprisingly, used to call it "Communist propaganda.") All propaganda is within the central core of the First Amendment. Nor did I dispute the claim that some pornography may contribute to an atmosphere of violence against women. But speech often causes undesirable consequences—political violence, riots, even revolutions. That should not, I argued, be a reason for suppressing speech itself. Some radical feminists went beyond boycotts, shooting bullets through a bookstore window in Harvard Square to protest its sale of Playboy Magazine. Some theaters showing Deep Throat received threats of violence, and at least one was firebombed after the patrons left. Some of the women of Quincy House who were opposed to Deep Throat were not content to protest. First they tried to cancel the showing by calling for a vote of the students who lived in the dormitory. They lost by a margin of three to one. Forty-nine percent of the women who voted opposed the showing; and forty-eight percent favored showing Deep Throat. Next they tried to get the Harvard University administration to forbid the scheduled showing. The Dean of Students wrote a letter to the Quincy House Film Society urging it not to show Deep Throat, but he would not ban it. The members of the film society, caught up in the adversary challenge by the feminists, voted to go forward with the event. The Quincy House women, with the assistance of other feminists, decided to picket the performances and to use the occasion to sensitize students to the evils of pornography. I supported their protest. Pamphlets were prepared presenting the feminist perspective on pornography. A slide show, graphically depicting the exploitive and sexist nature of pornography, was scheduled for presentation in an adjoining room an hour before the first 113 EFTA01091085 4.2.12 WC: 191694 showing of Deep Throat. Several prominent local feminist speakers had been asked to address the hundreds of protesters expected in front of Quincy House on the evening of the first scheduled performance. The First Amendment seemed to be in full bloom at Harvard. No one was being prevented from expressing his or her views. The Quincy House Film Society was going to show Deep Throat; the Harvard administration was expressing but not imposing its views; the feminists were preparing pamphlets, slide shows, and speakers to present theirs; and everyone was free to see and listen to all or none of these expressions. The feminists seemed to be making their point quite effectively: more students were expected on the picket lines and at the slide show than at the movie itself. Many in the Harvard community, while supporting the right of the Quincy House Film Society to show Deep Throat, now believed that the society had been insensitive to the feelings of their feminist housemates by exhibiting an offensive film in the dormitory that was home to them all. I shared that view. Then everything changed. Days before the scheduled showing, two women residents of Quincy House, not satisfied to protest and picket, called the local District Attorney's office and asked the police to prevent the showing of Deep Throat and to arrest the students who were planning to show it. The local District Attorney was an elderly political hack named John Droney, who had repeatedly won reelection on an uncompromising law-and-order platform. When he learned that the twin evils of obscenity and Harvard might merge on that fateful night, he dispatched an assistant to court in an effort to secure an injunction against the scheduled showing. If there is anything more obnoxious to a civil libertarian than the punishment of speech after it has taken place, it is the issuance of a aria- injunction to prevent speech in the first place. Prior restraint—as an injunction against speech has come to be known—is the purest form of censorship. It seeks to prevent the speech from ever reaching the public. Now, almost ten years after the Supreme Court had rebuffed efforts to enjoin publication of the Pentagon Papers, the District Attorney of Middlesex County was seeking to enjoin the showing of a dirty movie to a small group of students in a college dormitory at Harvard. Only hours before the scheduled performance, Carl Stork and Nathan J. Hagen—the co- presidents of the Quincy House Film Society—received telephone calls from the D.A.'s office directing them to be in Judge Charles R. Alberti's courtroom at two o'clock for a hearing. Stork and Hagen tried to call me in my office. But I was at lunch, and my secretary couldn't locate me. Stork and Hagen told her the story and requested that I come to the court to assist them as soon as possible. I returned from lunch at two-fifteen, to learn that I was expected in court— fifteen minutes earlier! I quickly borrowed a colleague's ill-fitting jacket, dug an old brown tie out of my desk drawer, and drove to the courthouse in downtown Cambridge. 114 EFTA01091086 4.2.12 WC: 191694 Within minutes, I found myself before Judge Alberti, arguing against the injunction. With no books, cases, or statutes in my possession, I had to wing it. The judge was most understanding, asking the Assistant District Attorney to let me look over his shoulder at the relevant statute and cases. After some legal argument, Judge Alberti declared that he was ready to see Deep Throat to decide whether it was obscene. I argued that the judge need not view the film: no matter what its content, I said, it would be unconstitutional for him to enjoin the showing of any film. If the D.A. thought the film was obscene, he could wait until it was exhibited and then arrest those responsible for its being shown. Judge Alberti insisted, however, on having Deep Throat screened for him. As the equipment was being wheeled in the courtroom, I informed the judge that I had no intention of watching the film. I was preserving an important point for any jury trial that the students might have in the future. I would tell the jurors that I had never seen Deep Throat because I had chosen not to, and that they had never seen Deep Throat because they had chosen not to. I would argue that the right to choose not to see a film is just as important as the right to choose to see a film. Indeed, most countries that prevent their citizens from seeing certain films also require their citizens to see other films. I would remind the jurors that it was the District Attorney who was making them see a film they had chosen not to see, in order to have them decide whether other people, who have also chosen not to see would be offended if they were to see it. I hoped, by this argument, to point out the absurd nature of the jurors' task in an obscenity prosecution, and to get them to focus on the important issue —namely, whether the outside of the movie theater, the only thing that the unwilling public may have to endure, is offensive to those who cannot avoid it. Judge Alberti excused me from watching Deep Throat, and Stork, Hagen and I left the courtroom while the judge, half a dozen assistant D.A.'s, and a few court house personnel watched Linda Lovelace and Harry Reems on a small video machine. After about forty minutes Judge Alberti abruptly stopped the videotape and summoned us back into court. "I've seen enough," he declared with a disgusted look on his face. Then, turning to me, he said, "You're the lucky one. I had to sit through that trash." The judge then declined to issue an injunction against the scheduled showing of Deep Throat, because although he regarded it as degrading both to men and women, he found that it was not obscene under the relevant Massachusetts standards. The film would be shown that night. When I arrived at Quincy House shortly before eight o'clock, a circus atmosphere prevailed. Hundreds of pickets marched outside urging potential viewers to stay away. There was some pushing and shoving. Slogans were shouted: "Freedom of the Press is not Freedom to Molest." "Pornography is an incitement to violence." I walked past the pickets and spoke to the assembled viewers and protesters: Whether you folks like it or not, you are part of a rather important political event...I am not here to either encourage or discourage the students who decided to see this 115 EFTA01091087 4.2.12 WC: 191694 film...Were I not involved in this lawsuit, I would be out there defending the rights of those picketers to...persuade you not to see this film. Notwithstanding the judge's ruling that the film was not obscene, the District Attorney decided to arrest Stork and Hagen. The Deep Throat case was so important to Droney that he pulled one state detective off a murder investigation to watch the film and make the arrest. I tried to secure a federal injunction against the arrest of my clients, by telephoning the emergency judge. But in the midst of our conference the first show ended and the officers arrested Stork and Hagen, confiscated the film, and seized the money the society had collected for the tickets. Amidst shouts of "Free the Quincy House Two," Stork and Hagen were taken to Cambridge Police Headquarters and booked on charges of disseminating matter they knew to be obscene, despite the reality that they knew it not to be obscene, because the judge had so ruled. A band of students marched behind them and protested the arrest on the steps of the police station. Among the protesting students were some of the same women who earlier had organized the feminist demonstration. They were furious at the feminist students who were trying to put two of their fellow students in prison for exercising their freedom of expression. As I later described this irony: ...the minute the kids were arrested, the minute the law was invoked, everything changed—the women [who called the cops] became the goats, the kids [who were arrested] became the heroes. One lesson that we all learned was that the least effective way of delegitimizing this kind of speech is to invoke the law; it has the opposite effect. You get all the good people on the side of the bad acts. Several days after the arrest, we filed a civil rights action in Boston Federal Court charging District Attorney Droney with violating the rights of Stork and Hagen, as well as those of the audience members who were denied the right to attend the three scheduled showings that had to be canceled after the film was seized. Eventually all the charges against Stork and Hagen were dismissed, after the lawsuit forced the District Attorney to admit, under oath, that he had willfully defied the judicial determination that Deep Throat was not obscene under Massachusetts Law and that his goal was to serve as a "censor," regardless of the law. The "Quincy House Two" were free and life returned to normal at Harvard. My encounters with fundamentalists, feminists and pornographers made clear to me the important, and often underestimated, relationship between the court of law and the court of public opinion. If a visitor from Mars, our even from Europe, were to read only the Supreme Court decisions on obscenity, he would come away with a totally false picture of the law of obscenity in action—or inaction. 116 EFTA01091088 4.2.12 WC: 191694 I once had a European student who wanted to study why there is so much censorship of erotic material in the United States. He had come to his erroneous conclusion from reading United States Supreme Court decisions. I told him that before he undertook his study, he should visit some video stores (this was several years ago) and adult-only movie theaters. He did and came back to me in shock. "They don't follow the Supreme Court in the United States," he exclaimed. "Now that's a subject worthy of study," I replied. It is important to remember that in a democracy, even a democracy in which the Supreme Court plays so central a role, that in the end the people decide. This is especially true in an area, like obscenity, where "community values" help define the law. Such values are ever-shifting and subject to influence. While the Supreme Court has insisted that the government has the power to punish (and otherwise regulate) the showing and viewing of "obscene" films in adult-only theaters (and on cable and "on demand" television), the people have voted the other way with their feet (and their remotes). The law in action today bears little resemblance to Chief Justice Berger's "categorical...disapprov[al] of [my] theory that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only..." The law in action more closely resembles the approach I advocated in my first encounter with the law of obscenity back in 1969. I promised Judge Aldrich that if we lost in the Supreme Court, I would continue, as a lawyer, to continue to urge acceptance of the argument that the government has no business telling a consenting adult what he may or may not watch in a theater (or video or TV) from which children are excluded, so long as the "externalities"—that which appears in public view outside the theater—is not obscene. I have kept my promise, and despite the Supreme Court's continued insistence—most recently in the violent video games case—that "obscenity" is not protected by the First Amendment, porn is widely available to consenting adults who choose to watch it without thrusting it upon unwilling viewers. That's the law in action. Inevitably, the law, as articulated by the courts, will follow the law in action, lest it become irrelevantly anachronistic or patently hypocritical. Hypocrisy, it has been said, is the homage paid by vice to virtue. In the area of obscenity, hypocrisy functions to allow the courts to maintain a pretense of Puritanism in a world of prurience. A puritan, H.L. Menkin once remarked, is a person who spends his days worrying that somewhere, somehow, someone is having fun. T. B. Macaulay once observed that "The Puritan hated bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators." Perhaps that's why our "Puritan" former Chief Justice insisted on comparing adult films to bear-baiting. Some adults enjoy watching obscene films. Although some puritans and feminists hate this, there is no evidence that this activity causes the type of harm that government should be empowered to prevent by censorship.40 Most Americans seem to understand that pornography, while offensive to some, is not provably harmful to others. That's why obscenity prosecutions have a relatively low rate of success. I have been involved in dozens of obscenity cases over the years and do not recall ever losing one. In addition to litigating many obscenity cases, I have written extensively on the subject. My article "Why Pornography?" set out to determine whether there is any actual relationship d0 Even if there were evidence that it harmed the viewer, that would not be a good enough reason for banning it, so long as there is no evidence it harms others. See Dershowitz, Shouting Fire, Why Pornography? pages 117 EFTA01091089 4.2.12 WC: 191694 between "hard-core pornography" and violence against women. It began by disputing Justice Potter Stewart's famous line that although he could never "define" hard core pornography, "I know it when I see it." That may have been true before radical feminists targeted pornography as a major cause of rape and other violence against women. Now the radical feminist definition of hard-core pornography would be unrecognizable to Justice Stewart, as well as to social scientist who seek to establish a causal connection between porn and rape. Here is the definition as set out in a model statute introduced in several state legislatures by radical feminists: Pornography is the graphic sexually explicit subordination of women, whether in pictures or in words, that also include one or more of the following: (i) women are presented dehumanized as sexual objects, things or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation; or (iii) women are presented as sexual objects who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (v) women are presented in postures of sexual submission, servility or display; or (vi) women's body parts—including but not limited to vaginas, breast and buttocks—are exhibited, such that women are reduced to those parts; or (vii) women are presented as whores by nature; or (viii) women are presented as, or penetrated by, objects or animals; or (ix) women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual. (emphasis added). The italicized words-"subordination," "dehumanized," "objects," "scenarios of degradation"— are so vague and subjective that they could apply to the writings of Shakespeare, Checkov, Roth, Hemingway, Mailer, DeSade, Miller and many others. The only element this new definition of pornography has in common with what Justice Stewart "knew" when he "saw" it is the requirement that the material be "sexually explicit." Without this element, the government would have no historical basis for banning speech. I then went on to show that there was no correlation (to say nothing of causation) between the sexual explicitness of a film and the likelihood that it will induce violence by its viewer. Indeed the available evidence suggests that there may well be a negative correlation, since rape has gone down considerably in those societies in which sexually explicit films are pervasive, while rape has certainly not gone down in those societies that persist in censoring films with explicit sex. I argued therefore that "pornography is a red herring" and that in the absence of compelling evidence—of which there is none—that it causes actual harm beyond offending those who can choose not to see it, the government should get out of the business of censoring films and other media. There are, however, other types of speech that pose far greater potential dangers. These communications include the divulgence of state secrets, the dissemination of classified information and the publication of news stories that compromise the national interest and endanger citizens. The problem is that the censorship of such expression may also pose far greater risks to democracy and liberty than the censorship of obscenity. Put another way, democracy could survive the censorship of hard-core pornography, despite the "slippery slope" from "porn" to politics (or from Harry Reems to Helen Hayes.) A society that banned 118 EFTA01091090 4.2.12 WC: 191694 pornography would, perhaps, be less vibrant, less tolerant, less pluralistic, less committed to choice, than one that did not. It might also be more subject to sliding down the slope toward other forms of artistic censorship at the margins. But so long as core political discourse remained free and open—as long as political dissent continued to thrive—democracy could survive. The same could not confidently be said about the widespread censorship of expression regarded by the government as state secrets, classified information and "dangerous" news stories. These go to the very heart of our democratic system of checks and balances in which the ultimate check is an informed public. As James Madison cautioned nearly two centuries ago: "A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both." 119 EFTA01091091 4.2.12 WC: 191694 Chapter 7 Disclosure of Secrets: From Pentagon Papers to Wikileaks The conflict between national security and free expression is a real one. It must be confronted and resolved by every society committed to civil liberties yet concerned for its safety. In this respect, the situation is different from the alleged conflicts that motivate the censorship of supposedly obscene material: in most obscenity cases, the "conflict" is contrived and need not exist at all. There is ample room in a diverse and free society for accommodating the desires of those who get pleasure from porn and those who feel the need to be protected from the intrusion of offensive material. The guiding principle that "your right to swing your fist ends at the tip of my nose" suggests a workable approach to the regulation of merely offensive material. But there is no simple rule for the accommodation of free expression and national security, where the expression may expose our security to real danger. No reasonable person can dispute the reality that there are "necessary secrets," like the names of spies, the movement of troops, the contents of codes and ciphers, the location of satellites and the nature of secret weapons. Nor can any student of history doubt that there are unnecessary secrets, like old and useless information that remains classified by bureaucratic inertia. There is also information kept secret under the pretext of national security but really in order to protect the reputation or electability of government officials. And then there is the most interesting category of secrets — those that are genuinely designed to protect national security in the short run, but whose disclosure may well serve the national interest in the long run. (An example of this last category, at least with the benefit of hindsight, was the decision by The New York Times to withhold publication of the Kennedy administration's imminent intention to invade the Bay of Pigs in Cuba. Had it disclosed this information, the fiasco might have been called off, many lives saved and America's reputation less tarnished.) The most controversial genre are secrets whose disclosure would, in the reasonable views of the government, endanger national security, but whose disclosure, in the equally reasonable view of the press, might ultimately serve the national interest. The real issue is not whether such secrets should be published, since that question will often be a close one about which well-intentioned people will disagree. The real issue, as it often is in a democracy, is who should be entrusted to make this real- time decision. The other difficult issue is not whether, but when to publish. In a democracy, there should be no permanent secrets, since history and accountability are paramount. The public must ultimately know everything its government has done in its name, but sometimes it is necessary to postpone publication until an immediate danger has passed, since in the modern world, there is no way of disclosing secrets to friends without also disclosing them to enemies. There is no "one size fits all" solution to this daunting conflict, but there are some useful guidelines in striking the proper balance. In the first place, the vast majority of claims that national security will be endangered by free expression are simply not true; most such claims are probably not even believed by the government officials who assert them. The talismanic phrase "national security" is often invoked as a transparent cover for convenience, for political advantage, and for protection from personal or political embarrassment. Every claim of national 120 EFTA01091092 4.2.12 WC: 191694 "security"—or "corporate security" or "university security" or the security of any institution— should be subject to rigorous challenge, in an effort to separate the contrived from the authentic. But this will not eliminate all conflict. There will be some cases of real and intractable conflict between security and freedom. Our Constitution purports to resolve doubts in favor of freedom, but there are cases where even that presumption will not resolve the problem: where the authentic claims of national security will seem to outweigh the powerful presumption in favor of free expression. In those cases we need to develop adequate mechanisms for resolving the dispute. Resolution cannot be left entirely in the hands of those responsible for security, such as the executive or the military. Our experience in delegating decision-making authority to these institutions in times of crisis is discouraging. It has been indeed fortunate for the survival of our liberties that there have always been some Americans—often only a small group and sometimes not those directly affected—willing to challenge governmental high-handedness, even during periods of crisis. Under our constitutional system, it takes only a single person challenging the government to create a case or controversy suitable for judicial resolution. This is not to suggest that justice should remain blind to the existence of a real emergency endangering the survival of the nation. As Justice Arthur Goldberg once wrote: "While the Constitution protects against the invasion of individual rights, it is not a suicide pact." But it is precisely during times of crisis—when the balance between momentary expediency and enduring safeguards often goes askew—that courts can perform their most critical function: to preserve or restore a sense of perspective. In the eternal struggle between liberty and security we have come to expect the executive and legislative branches to champion the latter. The judiciary—with its lifetime tenure, its tradition of independence, and its unique stewardship over our irrepealable rights-is the institution most able to resist the passing fears and passions of a dangerous moment. But liberty is not a commodity that can be obtained once and for all, and then passively held on to. The battle for civil liberties, as Roger Baldwin, the late founder of the ACLU, liked to say, "never stays won." (A variation on the Biblical admonition that justice must be actively pursued, because it too "never stays won.") The struggle must be endured by every new generation and in each new crisis. What Thomas Paine taught us on the eve of our own Revolution remains true today: "Those who expect to reap the blessings of freedom must... undergo the fatigue of supporting it." The stakes on both sides are much higher when the government seeks to censor dangerous "leaks" than when it seeks to censor obscenity or other merely offensive or disturbing speech. The danger of publication is greater and the danger of repression is also greater. There are serious risks in nat censoring, and there are serious risks in censoring. Striking the proper constitutional balance between these risks is a daunting challenge that every democracy must 121 EFTA01091093 4.2.12 WC: 191694 confront. Unfortunately it is a challenge that too few democracies—including our own—have confronted wisely and correctly.41 I was asked to help confront this challenge early in my career in several important cases pitting national security against the First Amendment. These early cases grew out of our disastrous experience in Vietnam, and I observed at close range the ravages of war on our freedoms at home. The first major Vietnam case was the conspiracy prosecution against Dr. Benjamin Spock, the Reverend William Sloan Coffin, and several other antiwar leaders. I played a consulting role in the defense of Dr. Spock and eventually wrote an article for the New York Times about the case after the convictions were reversed on appeal. The most publicized and notorious of the Vietnam protest cases was the conspiracy prosecution against the "Chicago 7" growing out of demonstrations during the 1968 Democratic Convention. After the trial of that case, the lead defense lawyer—William Kunstler—was held in contempt of court and sentenced to four years imprisonment. I was part of the legal team assembled to prepare the appeal of that contempt order. We won. Mother major prosecution was against the Berrigan brothers and other radical leaders of the draft resistance movement. I was asked to work on the defense of that case, but was "fired" by one of the more militant defendants when he learned that I was a Zionist. The bitterness of the Vietnam War spread rapidly over college and university campuses. What began as peaceful teach-ins and protests soon turned to confrontations and violence. In 1969, there was an anti-war protest at Harvard that led to violence and several years of continuous turmoil on that venerable campus. These events led the university to attempt to suspend or dismiss numerous students. I represented several of these students against the university. One was accused of "giving the finger" to a speaker. Another was accused of shouting "no silence in the face of death," when the speaker requested a moment of silence for soldiers killed in combat. We won both cases. At Stanford University the leader of the antiwar group was a professor of English literature named Bruce Franklin. He was a Maoist, a Stalinist, and an advocate and practitioner of direct action, including violence. As a result of several speeches he gave and activities in which he participated, the Stanford administration decided to strip him of tenure and fire him. It was the first political firing of a tenured professor by a major university since the terrible days of McCarthyism. I took his case on behalf of the American Civil Liberties Union. As the war was winding down and the United States was deciding to withdraw from Vietnam, the CIA was given a major role in overseeing the American evacuation. One of the highest ranking CIA agents in charge of the operation was Frank Snepp. Snepp wrote an uncensored d1 See Dershowitz, Stretch Points of Liberty 122 EFTA01091094 4.2.12 WC: 191694 account of his experiences—taking care, however, not to disclose any classified material. He refused to submit his manuscript for prior "approval" by the CIA, as required in his employment contract. When his book entitled Decent Interval was published the CIA sued him, and the case eventually was decided against him by the Supreme Court. I was one of his lawyers throughout the litigation. The release and publication of the Pentagon Papers in 1971 was perhaps the single most important event in turning American public opinion against the Vietnam War. While the New York Times and the Washington Post were fighting in court to continue publishing portions of the Papers, Senator Mike Gravel of Alaska was taking more direct action: he convened an emergency night-time meeting of his subcommittee on Buildings and Grounds—hard to imagine a committee less relevant to the Pentagon Papers—and placed the Papers in the public record. The "Gravel Edition" of the Pentagon Papers was then published by Beacon Press of Boston. I represented Beacon Press and, subsequently, Senator Gravel in litigation that eventually went to the United States Supreme Court. I also conferred with my teacher and dear friend Alexander Bickel, who was lead counsel for the Times in the Pentagon Papers case. Our cases shared a common constitutional approach and so we exchanged ideas and drafts. The difficulty of defending an absolutist view was well illustrated by an exchange between Justice Potter Stewart and Professor Bickel. Stewart asked Bickel about "a hypothetical case:" "Let us assume that when the members of the Court go back and open up this sealed record we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers. What should we do?" Bickel fumbled: "I wish there were a statute that covered it." (p. 46) Justice Stewart persisted: "You would say the Constitution requires that it be published, and that these men die, is that it? Finally, Bickel answered his hypothetical directly. "No, I'm afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort." The lawyer for the government, Solicitor General Erwin Griswold (former Dean of the Harvard Law School) did not regard Justice Stewart's case as hypothetical. 123 EFTA01091095 4.2.12 WC: 191694 "I haven't the slightest doubt myself that the material which has already been published and the publication of the other materials affects American lives and is a thoroughly serious matter." Several years after the argument, Griswold expressed a rather different view: "I have never seen any trace of a threat to national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat. [He, of course, had suggested just that in his oral argument]...It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now."A2 The First Amendment emerged victorious in the Pentagon Papers case, as it did in most of the anti-war cases of the 1970s. But this was before the age of the intemet. Everything would soon be different as technology changed the sounds and sights of expression—as well as the stakes involved in the debate over disseminating massive amounts of classified material throughout the world in the blink of an eye. Julian Assange and Wikileaks Important as it was as a First Amendment precedent, the Pentagon Papers case was First Amendment "child play" compared with the Wikileaks case and other current threats to national security posed by modem computer technology. The Pentagon Papers, after all, were to be published by "mainstream," "responsible"43 and "patriotic" media, such as The New York Times, The Washington Post and the Beacon Press, which would be "sensible" in what they exposed to public view. They would never publish the names of spies, informers or other people whose lives might be endangered by disclosure. (After all, they don't even publish the names of alleged rape victims, though there are good arguments for doing so, at least in some cases.)44 Moreover, these "established" media have permanent "addresses." They can be found and held legally accountable if they violate the law. Moreover, they are "businesses" that need public support, and are therefore unlikely to take any actions that would alienate their paying readership and advertisers. These constraints provide some assurance that such established members of "the Fourth Estate" will not pose the worst kind of dangers to our national security. They serve as an informal "check and balance" on the excesses of journalistic freedom.45 d2 Washington Post, February 15, 1989. Page A.25 d3 See Gabriel Shoenfeld, Necessary Secrets ( 2010) 44 See Dershowitz [column] 4/5 The checks don't always work, as evidenced by the Murdock scandals. 124 EFTA01091096 4.2.12 WC: 191694 None of these assurances or checks are in place when it comes to the "hackers," "cyber-thieves," "anarchist" and other "outsiders"—many of whom are "anonymous"—who currently threaten to expose our deepest, most dangerous and most valuable "secrets." There are, of course, some historical low tech antecedents to the current high-tech dangers. During our pre-revolutionary, revolutionary and immediate post-revolutionary era, there were many "radical," "irresponsible," "anarchistic and "anonymous" "rabble-rousers" and even "whistle blowers," "eavesdroppers" and "leakers" who were believed to be endangering the "security" of the government 46 "Secret presses" published "anonymous" or pseudononymous screeds, some of which disclosed "secrets" or other "dangerous" information. The language of the First Amendment would seem to protect these dissidents against any abridgement of their freedom of expression—at least from the United States Government. But our history in this regard has been checkered at best, especially in the context of fear of war. Less than a decade after the ratification of the First Amendment, Congress (the very Congress that was directed to "make no law abridging the freedom of speech) "made" the Alien and Sedition law, which expressly abridged the freedom of speech of dissidents and critics of the Adams Administration. The justification for this repressive legislation was the fear of war with France. During every war or threatened war since, there have been efforts, many quite successful, to abridge the speech of "disloyal," "unpatriotic," and "irresponsible" dissenters. The "retail" dangers posed by individual trouble-makers (or even by groups) was, of course, rather meager compared to the "wholesale" dangers currently posed by cyber-"trouble-makers," such as Julian Assange and Wikileaks. Indeed, even Assange and Wikileaks are somewhat closer to established media than are some others who we know little or nothing about. After all, Wikileaks worked closely with established media, such as the New York Times, The Guardian and other mainstream media. There are generally several levels of vetting before anything is published. It can be argued that Wikileaks has served as a "filter" for material that might otherwise have been published directly on the intemet, without any names or other such material having been removed. There are hackers out there who regard Assange as a "sell out" for "tampering with the truth" by excising anything. They would—and do if they can—publish everything they manage to hack. That is why the first line of defense against the disclosure of secrets is to protect the most important secrets from hacking or other means of accessing them by preventive steps. As Assange once told me, "the best way to keep a secret is not to know it." The United States does a terrible job of protecting its secrets, often giving access to some of the most unstable and irresponsible individuals, while denying security clearance to perfectly loyal and cautious people. Inevitably some secrets will become known to those who have no stake in keeping them secret and an important stake in making them public. That's why the rule of law, rather than the whim of government officials, is needed to strike the appropriate balance. 46 See Finding Jefferson at pp. 125 EFTA01091097 4.2.12 WC: 191694 I may have an opportunity to help strike that balance, because Julian Assange has asked me to consult with him and his British legal team regarding a possible indictment by the United States against him and others. I went to London in March of 2011 to meet with Assange and the lawyers who were then representing him. He was facing the immediate prospect of extradition to Sweden on sexual assault charges, but he also faced the possibility of being extradited to the United States to face charges that carried far more serious consequences than those in Sweden. It was the possible American prosecution that he wished to discuss with me. I first spent several hours with Assange and his legal team over the phone and by email. We worried about the security of our lawyer/client communications, which some might think ironic in light of Assange's penchant for disclosure of secret communications, but he had little choice but to communicate about the legal issues. We decided that a face-to-face meeting was required and we met in his lawyer's office. I found Assange to be an earnest person, deeply devoted to the principle of maximal transparency of governmental actions. He was, however, sensitive to the need to keep some secrets-if not from him, at least from the general public, which inevitably includes some very bad people determined to do some very bad things to innocent and perhaps not so innocent people. Assange insisted to me47 that he was a journalist, in every relevant sense of that term. He published, and turned over to others to publish important and relevant material that others had provided to him anonymously. He and his colleagues had devised a technology for allowing "whistle blowers" to "drop" material to Wikileaks anonymously and with no possibility of it being traced to its source. This "dropbox" technology was the cyber manifestation that the best way to keep a secret is not to know it in the first place. He and his colleagues had devised a foolproof system, he believed, to keep them from learning who had "dropped" the material into "the box." His job as a journalist was to authenticate the raw material, vet it for names and other life- threatening information which in his journalistic judgment should not be published (for example, the location of safe houses and the names of vulnerable people), and arrange for it to receive maximal reach by having it published by mainstream media outlets around the world, which would do further vetting to meet their own journalistic standards. When he finished explaining his journalistic modus operendi, two names immediately popped into my head: Seymour Hirsh of the New Yorker, and Bob Woodward of the Washington Post. Both are solid pillars of the journalistic establishment and both have made their reputations by publishing secrets the government—or at least some in the government—did not want to see in print. d7 I can only disclose material that is in the public record that he has given me permission to disclose. 126 EFTA01091098 4.2.12 WC: 191694 Hirsh specializes in publishing classified information about national security that has been provided to him by whistle blowers inside the government who disagree with particular governmental policies and want to see them exposed by someone who is believed to be sympathetic to their dissenting views. Some, if not most, of these whistleblowers are breaking the law by disclosing classified material to Hirsh. Hirsh and his publishers knew that they were publishing classified information before they published it. Yet neither he nor his publishers have been prosecuted. It is likely, moreover, that Hirsh has encouraged at least some of his more reluctant sources to become whistle blowers or, if they came to him without any prior encouragement, to continue to provide him with classified material. I do not know this to be a fact, but I have been told by several experienced investigative reporters that this is how it is done—that without some encouragement and promises of confidentiality and positive portrayal of the source, the leaks "thy up." When I read books by these authors, I can often surmise who at least some of the sources are: they're usually the ones who are portrayed positively in other parts of the book— quid pro quo! In other words, authors like Seymour Hirsh not only report the classified information given to them by sources, they develop, encourage, and in other ways facilitate the continuing flow of information—information which they know is classified and hence being illegally turned over to them—from their "criminal" sources. An important difference is that Hirsh has a political agenda: he publishes only information that serves that agenda. Assange, on the other hand, seems willing to publish material equally critical of all governments. For engaging in such journalism, Hirsh wins Pulitzer Prizes, gets invited to White House dinners and to lecture at schools ofjournalism which teach these methods. Woodward is different in some respects and similar in others. Whereas Hirsh's sources tend to be beauracratic dissidents, Woodward relies on high ranking members of the administration who want their "spin" on the story he is publishing to a very wide audience. Some of those politicians may be authorized to disclose the material, but certainly some are not, and much of the material is classified (though it probably shouldn't be). Both authors recognize the reality that many, if not most "state" secrets are designed not to protect the security of the nation, but rather to protect (and enhance) the reputations of the incumbent officials. In this regard, I recall a joke that made the rounds of the Soviet dissident community when I represented several of them in the 1970s. It is set during the period of the Stalin Show trials, when a dissident is arrested for calling Stalin a "fool." He wanted to defend himself by showing that Stalin was indeed a fool, but he was cut off by the judge who said: "If you were being charged with defamation, truth might be a defense. But it is not a defense to what you are being charged with." The dissident was taken aback and asked the judge, "If I am not being charged with defaming Stalin for calling him a fool, what am I being charged with?" The judge responded solemnly: "You are being charged with revealing a state secret!" 127 EFTA01091099 4.2.12 WC: 191694 Many current state secrets are really secrets whose disclosure would embarrass—properly embarrass-office holders. Even the Solicitor General who argued for the Nixon Administration to prevent publication of the Pentagon Papers later acknowledged this reality. That's why selective leaking and selective withholding of classified material is so damaging to truth, accountability and historical accuracy. And that's also why it is so prevalent in every administration. Wikileaks is different precisely because Assange is not publishing selectively in order to tell a story favorable to one group or another. He has no political agenda. His goal is transparency for the sake of accountability. With the exception of some names and addresses, Wikileaks has let the leaked documents speak for themselves. He allowed the chips to fall where they may and they often fall on the head of the current office holders around the world. Prosecuting Wikileaks or its founder for "the crime" of publishing classified information, while at the same time rewarding -- with prizes, access, interviews, and status — "reputable" journalists and newspapers for doing essentially the same thing, would constitute selective prosecution. American law, as distinguished for example from German law, generally permits selective prosecution of criminals, on the ground that resources are limited and prosecutors must have some discretion in deciding how to expend their limited resources. In order to "get the most bang for the buck", prosecutors are generally free to pick and choose among the many who violate broad, open-ended and often vague criminal statutes, such as tax, regulatory and criminal negligence laws. They are not free to exercise this discretion in a partisan manner: going after members of the opposing political party. Nor can they properly do so on the basis of race, religion or other protected categories. But they may select for prosecution the most visible or notorious offenders, since such prosecutions are likely to have the greatest deterrent effect on other potential law violators. For example, Leona Helmsley, one of the most famous women in America, was indicted for tax evasion on April 15th! One area in which it is dangerous and wrong to permit selective prosecution is the publication of classified information by the media. If the government can pick and choose the few it decides to prosecute among the many who publish classified information, it will have far too much power over the content of what the media reports.48 The First Amendment recognizes no distinction a The Supreme Court has recognized, in the context of the First Amendment, that a law purporting to regulate speech or press, in order to survive the "strict scrutiny" standard of review required by the First Amendment, must not be overinclusive or underinclusive. See Brown v. Entertainment Merchants Assn.: "Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint...And finally, the Act's purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation's effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to "assistant parents" that restriction of First Amendment rights requires...California's legislation straddles the fence between (I) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993) As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents 128 EFTA01091100 4.2.12 WC: 191694 between the patriotic and unpatriotic, the responsible and irresponsible, the favorable or unfavorable, media. It was precisely these improper distinctions that were employed by the John Adams administration when it selectively enforced the Alien and Sedition laws against "Jeffersonians", "Jacobins", and other perceived enemies of the Federalists. It took more than a century and a half for the Supreme Court to declare that although ".. the Sedition Act was never tested in this court, the attack upon its validity has carried the day in the `court of history', citing "a broad consensus that the act was inconsistent with the First Amendment". (I was a law clerk when that opinion was issued in 1964.) Not only has the verdict of history condemned the words of the Sedition Act, it has also condemned the selective manner in which it was enforced against certain journalists and newspapers but not others. If there are to be any restrictions of freedom in the press, they should be applied uniformly. If the publication of classified material is to be prosecuted, then all who publish it should be prosecuted, not only the marginal, the powerless, the "irresponsible" and the unpatriotic --- in the eyes of the government . If all are prosecuted, there is the possibility of the self-correcting mechanism of democracy operating to change the law, by narrowing it to criminalize only those categories of currently classified information that truly endanger national security. If untrammeled prosecutorial discretion is permitted, then the law can be kept as broad and overinclusive as it currently is, without fear that the New York Times will be caught in its web. But if only the weak and the unpopular are selected for prosecution, the pressures for change will diminish. Moreover, selective prosecution of only certain journalists who violate broad statutes will encourage some in the media to curry favor with the government, and the government to curry favor with certain media. This is an unhealthy and dangerous relationship in a democracy in which the press is supposed to check the government and be independent of its control. The exercise of some discretion is necessary under the statutory scheme that currently criminalizes the publication of classified material. If all journalists who publish any classified material were to be prosecuted, there would be few left. The New York Times and its publishers, editors, and national security reporters would be convicted felons, since the current statutes are written in the broadest of terms that invite the exercise of discretion, which has always been employed to immunize the mainstream media. In a definitive history of this problem, the author, Gabriel Schoenfeld, argues that an appropriate balance must be struck and that neither the press nor Congress can be relied on to strike that balance. Surprisingly, and wrongly in my view, he places his greatest reliance on the exercise of prosecutorial discretion and in the common sense of juries. History has not vindicated this trust, especially in times of national turmoil and fear. For me, a better democratic answer is for the courts to demand that legislatures enact clear, precise and extremely limited prohibitions on the real-time disclosure of only the most necessary of secrets. These statutes must neither be overinclusive or underinclusive (as are current laws). They should be capable of uniform and universal application that constrain the power of the government to pick and choose. Precise (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny." 129 EFTA01091101 4.2.12 WC: 191694 codification is not a perfect solution to an intractable dilemma, but it would be a significant improvement over the unacceptable current situation. In vibrant democracies there will always be tensions between the government's need to keep secrets and the news media's need to reveal them. There will never be a perfect solution or an agreed-upon balance. This is as it should be. Constant tension between the government and the press is an essential requisite of our system of checks and balances. 130 EFTA01091102 4.2.12 WC: 191694 Speech Codes It is the great danger of top-down discretion in the area of regulating speech that led me to express one of the most controversial views a free speech advocate can hold: I favor precise and narrow "speech codes" on university campuses, for much the same reason I favor precise and narrow national security codification. As I will now explain, I favor such codes not because I want to see campus speech curtailed, but rather because I want to see it freer than it is today. My general views on free speech are well-known: I am as close to an absolutist against censorship as anyone can reasonably be. In my book Finding Jefferson I describe my position as "a presumptive absolutist". "All speech should be presumed to be protected by the Constitution, and a heavy burden should be placed on those who would censor to demonstrate with relative certainty that the speech at issue, if not censored, would lead to irremediable and immediate serious harm. No one should be allowed — in the famous but often misused words of Justice Oliver Wendell Holmes Jr. - falsely to shout fire in a crowded theater, but anyone should be allowed to hand out leaflets in front of the theater urging people not to enter because of potential fire hazards." I am particularly critical of the censorship of speech on university campuses in the name of "political correctness". As I wrote in Shouting Fire: Though [students who seek to censor "offensive" speech] insist on being governed by the laws of the outside world when it comes to their personal lives, railing against visitor rules and curfews, they want their universities to adopt rules that restrict their First Amendment rights of free speech in order to shield them from the ugly realities of prejudice. Yet despite my strong opposition to censorship, I have surprised both my supporters and detractors by calling for precise and narrow "speech codes" on campuses. My reasoning is simple: censorship is inevitable on all university campuses in extreme situations; if a professor used the "N" word to call on an African-American student in class — or comparable taboo words to call on a woman, a Jew, a gay or lesbian, a Latino, or an Asian-American — that teacher would be fired (or at the very least disciplined). There are other forms of expression as well that would simply not be tolerated in a university, public or private. Precisely what those are we don't know (recall Carlin's 7 dirty words) but we will probably know it when we see it. (Recall Justice Stewart on hard core pornography.) Accordingly, there already exists a speech common-law (or more precisely a censorship common-law) at every university. The issue, therefore, is not whether there is or should be any censorship of expression by universities. We already know the answer to that question: there is and there should be in those kinds of extreme cases. I know of no responsible person or organization that would defend the right of a teacher to use the "N" word in calling on or routinely discussing African-American students. The remaining question is 131 EFTA01091103 4.2.12 WC: 191694 whether it is better to leave the decision as to which words in which contexts are prohibited to the after-the-fact discretion of an administrator, or to decide in advance on a list or category of prohibited expressions. In other words, is it more protective of freedom of expression to have a "censorship common-law" to be applied on an ad-hoc basis by a dean, or to have a "censorship code" debated and agreed upon in advance by the equivalent of the legislative branch of the university — a student or faculty senate or some other representative body. I strongly favor a narrow code to a potentially broad common-law, because it provides advanced fair warning and an opportunity to challenge the provisions of the code before they are enforced. (That's why I also favor a narrow code criminalizing the publication of only the most dangerous state secrets). In 2002, there was an ugly racial incident at Harvard Law School that led to a campaign by some student groups for censorship of offensive speech. The dean appointed a committee to recommend an approach to this delicate problem. He put me on the committee because of my vocal opposition to censorship and my support for a maximalist position on freedom of speech. My fellow committee members were surprised when I proposed that we try to draft a speech code. "I thought you favored freedom of speech", one of the libertarian student members said in frustration. "I do," I replied. "That's why I want a code. I don't trust the dean — or anyone else — to decide which speech should be prohibited." "No speech should be prohibited," the student replied. I then gave my examples of the professor and the "N" word. "That's different," the student insisted. "Then let's try to codify exactly what else may be `different', I responded. The committee spent more than a year trying to come up with a code of prohibited expressions, but it could not come to any agreement. The "N" word itself could not be prohibited because a black professor had written a brilliant book entitled "Nigger: The Strange Career of a Troublesome Word". We tried to define the circumstances under which the "N" word could and could not be used, but we could not come to any agreement. (One person suggested that the "N" word could be used by Blacks but not Whites. Another suggested it could be used in a book but not in oral discussion.) Nor could we agree on other disputed forms of expression, such as opinions regarding negative characteristics associated with particular groups. At the end, we reported back that we could not come up with a code. It was a useful experiment in democracy and accountability. I would have preferred us to adopt a code limited to those instances of expression — such as a teacher calling a minority student by a negative racial or other term — which everyone agrees is unacceptable in a classroom setting. This would have sent a powerful message that no other type of speech, regardless of how offensive it might be to some, can be 132 EFTA01091104 4.2.12 WC: 191694 prohibited. If a particularly inappropriate expression that had not been included in the codification were then to be used, the committee could consider including it for future discipline, but it could not be the basis for imposing discipline for speech that took place prior to its inclusion in the codification. The virtue of a code is that it completely occupies the area of sanctions. It leaves no room for "common law crimes" or broad decanal discretion. The vice of a code is that it is often underinclusive—it excludes conduct (or, in this case, speech) that is novel, or that was not considered by the codifiers. In the area of freedom of expression, the virtue of such a limitation trumps its vice, at least in my view. It is far better to have rules regulating speech that are underinclusive than overinclusive. In 2007, I taught a university-wide course with Professor Steven Pinker on the issue of Taboo. The question posed by the course was whether there are any issues that are so delicate, sensitive, controversial, or disgusting that they should be treated as "taboos," even on a university campus dedicated to open dialogue and the free exchange of views. Most Americans are brought up to believe in freedom of expression, but almost everyone has at least one type of speech that he/she would suppress. In our course, we searched for a theory of taboo — a description or prescription of genres of expression that lay outside the presumption of discussability and are, or should be, subject to suppression, censorship or tabooization. Professor Pinker presented some evolutionary and psychological arguments for the existence and utility of some taboos, while questioning many of the taboos that currently seem to exist on university campuses. I discussed the legal and moral arguments for and against any exceptions to the general presumption of free expression. In the end, there was little agreement, except that there is and should be a difference between societal taboos, enforceable only by social sanction, and official governmental censorship, enforceable by the power of the state through the law. We also agreed that notwithstanding the clear words of the First Amendment, Congress must have the power to make some laws banning the disclosure of some secrets for some time. Finally, we agreed that there will never be a perfect balance struck between the public's need to know and the government's need to keep our enemies from knowing certain information. The struggle to strike this delicate balance never stays won. What history seems to teach us is generally to err on the side of more disclosure rather than more censorship, even when it comes to national security. 133 EFTA01091105 4.2.12 WC: 191694 Chapter 8: Expressions that incite violence and disrupt speakers Pornography consumed in private does not require a balancing of rights-as explained in Chapter 6—because no one should have the right to tell an adult what to read, view or hear in his home or in an enclosed area, like a theater, where no one is forced to go. Disclosure by the media of national security secrets requires an exquisite, if not impossible, balancing of rights and interests, as explained in Chapter 7. Expressions that incite violence or disrupt speakers—the subject of this chapter—also require a difficult balance between the rights of the speaker, and the rights of the potential victims of the incited violence and those of the disrupted speaker. There are two basic types of expression that incite. The first is reactive—that is, the speaker so deeply upsets or offends the person (or persons) to whom he is speaking that he reacts to the speech by attacking the speaker. This comes under the legal rubric of "fighting words"—words that cause the listener to fight back. The second is pro-active—that is, the speaker urges his listener (or listeners) to commit violence and the listener complies by committing violence against a third person (or persons or institutions). This comes under the legal rubric of "clear and present danger." Early in my career I was involved in both of those types of cases. In the famous neo-Nazi march through Skokie, Illinois, the Nazi thugs deliberately decided to march—with anti-Semitic chants, signs and uniforms—through a Jewish community with a large number of Holocaust survivors. Their goal was to provoke a negative reaction from those they were trying to offend. The city banned the march on the ground that it would provoke a violent reaction from some survivors and others. The Nazis sued. To the surprise of many, and to the dismay of my mother, I urged the ACLU, on whose board I sat, to defend the right of the Nazis to march through Skokie and I urged the Jews to ignore them, in order not to give the Nazis the publicity they craved. I don't believe in the "fighting words" exception to the First Amendment. I believe that the answer to deeply offensive speech is not violence, and that the law should not legitimate or justify violence by recognizing this exception. Experience demonstrates that when victims respond to such offensive provocations by violence or censorship, the provocateurs win in the court of public opinion. That's what happened in Skokie. A small rag-tag band of Nazi thugs became the focus of worldwide attention as a result of being censored by Skokie. They were interviewed by the media, their numbers and influence grew and they received a degree of legitimacy they had never previously had. I fully understood why the Holocaust survivors would be deeply offended, even possibly traumatized, by being forced to re-experience the spectacle of brown shined Nazi wearing Swastikas invading their neighborhood, but I worried about the implications of a judicial decision authorizing censorship. It could be used to justify the censorship of a march by the likes of Martin Luther King through a segregated community in the south; whose residents would be deeply offended by an integrated group marching through their community. It's no answer to point out that King was good or right and the Nazis are bad and wrong, because the First Amendment must always be content-neutral and not prefer good and right speech over bad and wrong speech. That's for the public to decide only after being presented with both sides without 134 EFTA01091106 4.2.12 WC: 191694 government interference. That's how the marketplace of ideas is supposed to operate in a democracy. The government must protect bad, wrong and offensive speakers from those who would react violently. Speech, not violence, is protected by the First Amendment. Moreover, if a violent reaction to speech is deemed to justify the censoring of that speech, then the threat to commit violence empowers "the victims" of provocative speech to serve as censors. This "violence veto" should not be encouraged by the law. Hard as it may be to arrest these "victims" rather than the provokers, the First Amendment requires that the government side with the "bad" speakers, rather than the "good" violence-threateners. In the end, the Nazis "won" the encounter in Skokie because good and decent people in that community decided to try to censor, rather than ridicule or respond to them. My experience with "clear and present danger" incitement also took place in a small community—the beautiful campus of Stanford University. Shortly after arriving at Stanford in the fall of 1970 for what I expected would be a year of scholarly research as a fellow of the Center for Advanced Studies in the Behavioral Sciences, I was asked to represent a tenured English professor named Bruce Franklin, who was being fired for inciting students. He had spoken at an anti-war rally directed against the Stanford Computation Center, which was involved in war-related research. His speech including the following: "[W]hat we're asking is for people to make that little tiny gesture to show that we're willing to inconvenience ourselves a little bit and to begin to shut down the most obvious machinery of war, such as—and I think it is a good target—that Computation Center." Following shouts of "Right on," a group of listeners marched on the Computation Center and physically shut it down, causing some damage. Franklin did not join the demonstrators himself; he watched from a safe and discreet distance. The police eventually cleared the building and ordered the demonstrators to disperse. At this point, Franklin joined the crowd and protested the order. He walked up to the police, argued with them that the dispersal order was illegal, and urged the crowd to remain. Many did, and the police used force to affect their order. Minor injuries were sustained by some demonstrators. Later that night a rally was held on the campus at which Franklin gave the closing speech. In it he advocated "the methods of people's war." There was some dispute about whether he explained what he meant by this term. He claimed that he told the demonstrators that "people's war meant that they should go back to the dormitories, organize people into small groups, and talk with them, or play football, or whatever, as late into the night as possible." Within a few hours of Franklin's speech there was more violence and this time several people were seriously hurt. The next day President Lyman announced that Professor Franklin would be fired from his tenured position on grounds of "substantial and manifest neglect of duty and a substantial impairment of his appropriate functions within the University community." Franklin demanded a formal hearing, and a faculty advisory committee of seven full professors was convened to consider the charges and recommend an appropriate sanction. It was difficult to find seven professors who did not despise Franklin—and with good cause. 135 EFTA01091107 4.2.12 WC: 191694 I persuaded the local ACLU chapter to become involved but I, and my research assistant Joel Klein, took the lead in defending Franklin. Word quickly spread around the Stanford campus that I had gotten the ACLU into the case. I was criticized for my intrusion into the affairs of my host university. President Lyman went on the radio to attack me: It is a myth that all speech is constitutionally protected. No constitutional lawyer in the land—no, not even Mr. Dershowitz, the Harvard law professor come to Stanford to save us all from sin—not even Mr. Dershowitz could make such a sweeping claim. I responded with my own statement in the Stanford Daily: There are important civil liberties issues at stake in the Franklin firing. If Dr. Lyman wants to challenge my view of the Constitution or civil liberties—and those of the ACLU—I invite that challenge, on its merits. Lyman rejected my invitation to debate and continued to attack me—both personally and through his surrogates—in highly personal terms. The hostility toward me and toward the ACLU spread quickly among the established faculty. Not surprisingly, it soon reached the Faculty Committee that was considering the Franklin case. We filed a brief on behalf of the ACLU urging Stanford, which is a private university, to apply the spirit of the First Amendment to Franklin's case. The committee agreed and said they were applying First Amendment standards, but it ruled, in a divided vote, that Franklin's speeches violated those standards. They found that he "did intentionally write and urge" students and other to "occupy the computation center illegally," to "disobey the order to disperse" and to "engage in conduct which would disrupt activities of the university and threaten injury to individuals and property." Following the Franklin firing I gave a lecture on the implications of the case. I predicted that Franklin himself would soon be forgotten because his message would be rejected in the free marketplace of ideas. But the Committee's decision would be long remembered as a leading precedent in the jurisprudence of universities. I concluded my lecture by pointing an accusing finger at some of the faculty who pretended that the Franklin case raised no important civil liberties issues: How often have I heard the absurd remark that Franklin is being fired for what he "did," not for what he "said," without a recognition that this quibble doesn't' hide the fact what he "did" was to make speeches. How often I have heard the statement that this case does not involve "academic freedom," it is simply an employer firing an employee for disloyalty—as if a requirement of loyalty and academic freedom were compatible. [T]he true test of a genuine civil libertarian is how he responds to a crisis close at hand. 136 EFTA01091108 4.2.12 WC: 191694 Expressions that deliberately disrupt a speaker with whom one disagrees The Bruce Franklin case also included this alleged exception to the First Amendment—namely, that although there is a constitutional right to heckle speakers (at least in some context), there is no such right to silence a speaker by shouting him down. When Henry Cabot Lodge came to speak at Stanford in January 1971, he was shouted down with cries of "pig" and "war criminal," and then drowned out by continuous chanting and clapping. Eventually, the program had to be canceled (just as a similar program had been canceled several years earlier at Harvard.) Franklin participated in the shouting but denied complicity in the chanting and clapping that brought the program to an untimely end. The ACLU brief that I filed vigorously disagreed with Franklin's contention that there is a "right" to silence a speaker who is deemed to be a "war criminal": "[I]f the Board concludes that Professor Franklin intentionally engaged in concerted activity designed to silence Ambassador Lodge—that is, to prevent him from speaking at all—then it is the Civil Liberties Union's position that some discipline would be appropriate." It defended, however, Franklin's right to heckle, boo, and express displeasure at the speaker of disagreement with his views. If members of the audience may cheer and applaud approval, they must also have a coextensive right to demonstrate disapproval: "The rule of thumb [is] that the speaker's entire address must be allowed to be heard, but it may be frequently interrupted, so long as he is permitted to continue a short time after each interruption. This rule does not make for the most comfortable or effective oratory, but the American Civil Liberties Union believes it to be the constitutionally required balance..." The Stanford Committee followed the ACLU guidelines and concluded that Franklin had not tried to prevent Lodge from speaking. Forty years later, I tried to get the Southern California branch of the ACLU to apply these same guidelines to another case involving the disruption of a speaker who had been invited by a university-this time the University of California at Irvine, a public university. But its leaders refused to do so, because they disapproved of the speaker and favored the politics of those who were trying to silence him. First, some background. There is a growing international campaign to prevent pro-Israel advocates, who have been invited to speak at universities, from delivering their speeches. The method used to silence these speakers and preclude their audiences from hearing their message is exemplified by what occurred at the University of California at Irvine. Michael Oren -- a distinguished scholar and writer, a moderate supporter of the two-state solution, and now Israel's Ambassador to the United States -- was invited to speak. The Muslim Student Union set out to prevent him from delivering his talk. Here is the way Erwin Chemerinksy, Dean of the law school, described what the students did: 137 EFTA01091109 4.2.12 WC: 191694 "The Muslim Student Union orchestrated a concerted effort to disrupt the speech. One student after another stood and shouted so that the ambassador could not be heard. Each student was taken away only to be replaced by another doing the same thing." Chemerinsky understates what happened, as anyone can see by watching a video of the event, available online (http://www.youtube.com/watch?v=7w96UR79TBw). This was more than a "concerted effort to disrupt the speech." It was a concerted effort to stop it completely -- to censor Oren's right to speak and his audience's right to hear him. The efforts to disrupt succeeded; the effort to stop ultimately failed. Moreover, there is undisputed evidence that there was a well-planned conspiracy to censor Oren's talk. The students were disciplined by the university for their actions, though the nature and degree of the discipline has been kept confidential. Campus sources have characterized it as a "slap on the wrist." Since the students had to be arrested to prevent the speech from being drowned out, the District Attorney, quite understandably, commenced a criminal investigation. After learning of the careful planning that went into the concerted effort to prevent Oren from speaking, the DA filed misdemeanor charges against those who were involved. This decision resulted in an outcry by radicals, many of whom favor censorship of pro-Israel speakers. In a letter to the DA signed by many well-known anti-Israel zealots, as well as by the two leaders of the local ACLU, the incident was described as merely a protest: "the students non-violently and verbally protested a university-invited speaker. The students left the event peacefully ...."49 Then, in an effort to blame the victims, the letter pointed the finger at pro-Israel students who wanted to listen to Oren speak claiming -- quite falsely -- that the Muslim Student Union censors "conducted themselves in less of a disruptive manner than some of the counter-protestors..." Sounds as if the Muslim Student Union deserved a civil liberties award, while the students who came to listen to the invited speaker—"the counter-protestors"—deserve to be condemned. In a more recent letter the ACLU leaders claim that "the students' intent was not to censor the speaker...." The students themselves have been more honest about their intentions than the ACLU leaders. . For instance, one student leader refused to acknowledge that Mr. Oren had First Amendment rights of his own by interrupting him and shouting, "Propagating murder is not an expression of free speech!" (Shades of Bruce Franklin!) Mother student was caught on video telling a crowd assembled outside the event that "we pretty much shut them down". The fact that radical anti-Israel zealots would support censorship of a pro-Israel speaker comes as no surprise. But the fact that the letter of support was signed by two ACLU leaders should shock all civil libertarians and supporters of the ACLU. I have been a supporter of the ACLU for half a century and was a national board member. In addition to supporting the right of Nazis to march 19 httplAvvew.baitcal.con-AJCIMuslimStudentUnion.html 138 EFTA01091110 4.2.12 WC: 191694 through Skokie, I have defended the right of the most virulent anti-Israel speakers to participate in the marketplace of ideas. The ACLU policy has always been to oppose concerted efforts to prevent speakers from delivering their remarks, as evidenced by the brief filed in its name in the Franklin case. While supporting sporadic heckling and jeering that merely demonstrates opposition to the content of the remarks, the ACLU has always condemned type set of concerted efforts to silence invited speakers that occurred at Irvine. Yet signatories of the letter -- which never once criticizes the censoring Muslim Union students while condemning those who wanted to hear the speaker -- include "Chuck Anderson," who identified himself as President ACLU Chapter, Orange County and Chair, The Peace and Freedom Party, Orange County;" (a hard left anti-Israel group), and "Hector Villagro," who identified himself as "Incoming Executive Director, ACLU of Southern California." Dean Chemerinsky, while opposing criminal prosecution, made a point to condemn the censoring students: "The students' behavior was wrong and deserves punishment. There is no basis for the claim that the disruptive students were just exercising their First Amendment rights. There is no constitutional right to disrupt an event and keep a speaker from being heard. Otherwise, any speaker could be silenced by a heckler's veto. The Muslim students could have expressed their message in many other ways: picketing or handing out leaflets outside the auditorium where Ambassador Oren was speaking, making statements during the question and answer period, holding their own events on campus." The ACLU leaders, on the other hand, seemed to justify the actions of the censoring students while limiting their condemnation to the pro-Israel students who wanted to hear the speaker. After being criticized for supporting censorship, Villagro sought to justify his signing the letter by the following "logic:" "The district attorney's action will undoubtedly intimidate students in Orange County and across the state and discourage them from engaging in any controversial speech or protest for fear of criminal charges." The opposite is true. If these students had been let off with a slap on the wrist from the University, that would encourage other students around the nation and the world to continue with the efforts to prevent pro-Israel speakers from delivering their speeches. Indeed, even after these students were disciplined, other students tried to shut down several Israeli students, who had served in the Israeli Army, from recounting their experiences. Had the school administered appropriate discipline, I could understand an argument against piling on with a misdemeanor prosecution, but the red badge of courage given to them by the college only served to encourage repetition of their censorial conduct. 139 EFTA01091111 4.2.12 WC: 191694 The ACLU should be supporting a clear line between occasional heckling and outright censorship. The ACLU leaders who signed the letter are on the wrong side of that line and should not be speaking for the ACLU. The prosecution of those who tried to censor Ambassador Oren proceeded. The prosecutors asked me to testify on their behalf as an expert witness on the issues relating to freedom of expression in the campus context. I was tempted but ultimately decided it would be better for them to use a witness with less personal involvement in the matter: I too had been shouted down by anti-Israel groups—on that very campus and on others. The jury convicted the students and they were sentenced to probation and a fine. There were some who criticized the prosecutor for bringing these charges, but I defended him on the ground that prosecuting these student censors was his duty in protecting the First Amendment: It was imperative...that a public prosecutor apply the law to these students, because to do otherwise would be to tolerate, if not encourage, conduct that would undercut the constitutional rights of an invited speaker. This is especially true because the University of California is a state-run institution to which the First Amendment applies in full force. A prosecutor has the obligation to protect the First Amendment, especially if the university has imposed discipline that is inadequate to assure that censorial conduct will be deterred. Moreover, these students must be made to understand that their conduct is not only morally indefensible; it is criminal. The same would be true if Jewish students were to try to prevent an anti-Israel speaker from presenting the case against Israel. No student, no matter how strongly they feel that their view is the only correct one, has the right to prevent the open marketplace of ideas from operating on a university campus, as these ten students tried to do. The successful prosecution of the Irvine Ten will not "chill" free speech rights of hecklers. No one should or would be prosecuted for simply booing the content of a speech, leafleting a speaker, holding up signs in the back of the auditorium, conducting a counter event or demonstration. It was these young criminals who were trying to chill, indeed freeze, the constitutional rights of the speaker and those who came to hear him. They should not be treated as heroes by anyone who loves freedom and supports the First Amendment. It was a good day for the First Amendment when the prosecutor decided to apply the law to their censorial conduct. It was another good day for the First Amendment when the jury appropriately convicted them. Sometimes it takes tough measures to enforce the First Amendment against extremists who believe they own the only "truth" and who seek to silence other views. 140 EFTA01091112 4.2.12 WC: 191694 Chapter 9: The Right to Falsify History: Holocaust Denial and Academic Freedom In some European countries, (particularly Germany, Austria and France), it is a crime to deny the Holocaust. In other countries, such as Turkey, it is a crime to claim that the Turks engaged in genocide against the Armenians, even though it is an historical fact recognized by scholars around the world. Under our First Amendment, no one can be punished either for denying or proclaiming that an historical event occurred. Several years ago I became embroiled in a heated controversy with Professor Noam Chomsky over the issue of Holocaust denial and the proper role of a civil libertarian in defending the right of Holocaust deniers, without defending the substance of their claims. In the 1970s a Frenchman named Robert Faurisson, who was an obscure lecturer on French literature at the University of Lyon, began to dabble in Holocaust denial. He wrote a book—and gave talks—in which he mocked Holocaust victims and survivors as perpetrators of a hoax. The Holocaust, according to Faurisson, "never took place." The "Hitler gas chambers" never existed. "The Jews" bear "responsibility" for World War II. Hitler acted reasonably and in self-defense when he rounded up the Jews and put them in "labor camps," not death camps. The "massive lie" about genocide was a deliberate concoction begun by "American Zionists"—in context he obviously means Jews. The principal beneficiary of this hoax is "Israel," which has encouraged this "enormous political and financial fraud." The principal victims of this "fraud" have been "the German people" and the "Palestinian people." Faurisson also called the diary of Anne Frank a "forgery." Following the publication of Faurisson's book, the lecturer received threats from irate survivors. The University of Lyon, claiming that it could not guarantee his safety, suspended him for a semester. Chomsky sprang to Faurisson's defense, not only on the issue of free speech, but on the merits of his "scholarship" and of his "character." Chomsky signed a petition that characterized Faurisson's falsifications of history as "findings" and said that they were based on "extensive historical research." I too defended Faurisson's right to express his views, but I also checked his "historical research" and found it to be entirely faked. He made up phony diary entries, omitted others that disproved his "research," and distorted the historical record." I exposed Faurisson's deceptions in my own writings, while continuing to defend his right to rewrite history. 5° For example, Faurisson relies on an entry, dated October 18, 1942, from the diary of SS doctor Johann-Paul Kremer written during the three months he spent at Auschwitz in 1942. An eminent scholar checked Faurisson's use of the entry, and demonstrated that Faurisson's "research" was fraudulent. The diary entry read: "This Sunday morning in cold and humid weather I was 141 EFTA01091113 4.2.12 WC: 191694 present at the 11th special action (Dutch). Atrocious scenes with three women who begged us to let them live." Faurisson concludes that this passage proves (I) that a "special action" was nothing more than the sorting out by doctors of the sick from the healthy during a typhus epidemic; (2) that the "atrocious scenes" were "executions of persons who had been condemned to death, executions for which the doctor was obliged to be present"; (3) that "among the condemned were three women who had come in a convoy since the women were shot and not gassed (emphasis added). Faurisson, who said he had researched the trial, knew that his own source, Dr. Kremer, had testified that the gas chambers did exist. Yet he deliberately omitted that crucial item from his book, while including the fact that the women were shot. Faurisson also knew that the three women were "in good health." Yet he led his readers to believe that Dr. Kremer had said they were selected on medical grounds during an epidemic. Finally, Faurisson states that those who were shot had been "condemned to death." Yet he knew they were shot by the SS for refusing to enter the gas chambers. A French scholar named George Wellers analyzed this diary entry and the surrounding documentation for Le Monde. He did actual historical research, checking the Auschwitz record for October 18, 1942. His research disclosed that 1,710 Dutch Jews arrived that day. Of these, 1,594 were sent immediately to the gas chambers. The remaining 116 people, all women, were brought into the camp; the three women who were the subject of the Kremer diary must have been among them. The three women were, in fact, shot—as Faurisson concludes. But that fact appears nowhere in Kremer's diary. How then did Faurisson learn it? Professor Wellers was able to find the answer with some simple research. He checked Dr. Kremer's testimony at a Polish war crimes trial. This is what Kremer said at the trial: "Three Dutch women did not want to go into the gas chamber and begged to have their lives spared. They were young women, in good health, but in spite of that their prayer was not granted and the SS who were participating in the action shot them on the spot." (emphasis added). That is not "extensive historical research." It is not research at all. It is the fraudulent manufacturing of false antihistory. It is the kind of deception for which professors are rightly fired: not because their views are controversial, but because they are violating the most basic canons of historical scholarship. It is typical of Faurisson in particular, and of Holocaust denial "research" in general. Yet Chomsky was prepared to lend his academic legitimacy to Faurisson's "extensive historical research." 142 EFTA01091114 4.2.12 WC: 191694 Chomsky wrote an essay that he allowed to be used as a foreword to Faurisson's next book, about his career as a Holocaust denier! In this book, Faurisson again calls the gas chambers a lie and repeats his claims about the "hoax" of the Holocaust. A few years later, after it became unmistakably clear that Faurisson was consciously lending his name to all sorts of anti-Semitic and neo-Nazi groups, Chomsky repeated his character reference: "I see no anti-Semitic implications in denial of the existence of gas chambers, or even denial of the Holocaust. Nor would there be anti-Semitic implications, per se, in the claim that the Holocaust (whether one believes it took place or not) is being exploited, viciously so, by apologists for Israeli repression and violence. I see no hint of anti- Semitic implications in Faurisson's work..." (emphasis added) [Add Mearsheimer] When this statement was quoted in the Boston Globe, I wrote the following letter to the editor: "While some may regard Chomsky as an eminent linguist, he does not understand the most obvious meaning of words in context. To fail to see any "hint of anti-Semitic implications" in Faurisson's collective condemnation of the Jewish people as liars, is to be either a fool or a knave. Chomsky's actions in defending the substance of Faurisson's bigoted remarks against valid charges of anti-Semitism-as distinguished from defending Fuarisson's right to publish such pernicious drivel—disqualify Chomsky from being considered an honorable defender of the "underdog." The victims of the Holocaust, not its defenders or deniers, are the underdogs." Chomsky responded by arguing that Faurisson was an anti-Zionist rather than an anti-Semite, because he denounced "Zionist lies." Following this exchange, I challenged Chomsky to a public debate on the issue of whether it is anti-Semitic or anti-Jewish to deny the Holocaust. This was his answer: "It is so obvious that there is no point in debating it because nobody believes there in an anti-Semitic connotation to the denial of the Holocaust" (emphasis added). One is left to speculate about Chomsky's motives—political and psychological—for becoming so embroiled in the substantive defense of the writings of a neo-Nazi Holocaust denier. The civil liberties-free speech rationale does not work for Chomsky: civil libertarians who defend the free speech of neo-Nazis do not get into bed with them by legitimating their false "findings" as having been based on "extensive historical research," and by defending them—on the merits—against well-documented charges of anti-Semitism. Moreover, providing a forward for a book is joining with the author and publisher in an effort to sell the book. It is intended not merely to leave the marketplace of ideas open. It is intended to influence the marketplace 143 EFTA01091115 4.2.12 WC: 191694 substantively in favor of the author's ideas. This is not the defense of free speech. It is the promotion of Holocaust denial. Several years after my encounter with Chomsky, I was asked to defend a neo-Nazi Holocaust denier named Matthew Hale, who was the head of an anti-Semitic group that called itself "The Church of the Creation". He had been denied admission to the Illinois Bar because of his neo- Nazi views. Hale was invited to appear on the Today Show to be interviewed by Katie Couric. I was asked to explain why I would even consider representing such a horrible racist and anti-Semite. Couric began by asking Hale to describe his views "in a nutshell." He went on about how non- Europeans—by which he means Blacks and Jews—were destroying the "white race" and how he was going to change that if he were admitted to the bar. Couric then asked me why I believed a man with Hale's views should be allowed to become a lawyer. KC: Mr. Hale should be allowed to practice law...why? AD: Well first of all I am not a supporter of Mr. Hale. You asked about his views in a nutshell. That's where his views belong, in a nutshell. They are despicable, revolting views. But what I'm concerned about is the precedential effect of giving character committees the right to determine who shall and who shall not have the right to practice law on the basis of ideology and belief. Remember character committees were invented to originally keep out Blacks, Jews, gays, women, leftists...I just don't want to see a resurrection of character committees probing into the ideology of people like Mr. Hale. If I take his case, and he's asked me to represent him, I told him this and he knows this. All the fees will be contributed to anti-racist organizations which will fight the ideology of bigots like him. I hope the American public listening to him would reject his ideas in the marketplace but not through censorship of the kind that the character committee is trying to practice. KC: But simply espousing these views, couldn't that lead to violence, by other individuals? AD: Well there is no question how our Constitution strikes that balance. Reading the work of Marx can lead to incitement. Reading the Bible can lead to incitement. But we don't draw the line at the espousal of views. We draw it at incitement or violence itself and we don't want to have a different standard for racists than we do for other people. Couric then turned back to Hale: KC: Ok, you talk about your enemies, Mr. Hale, and among them are Jews. Do you see the irony that you hate Jews and yet you are calling on Mr. Dershowitz to help you? 144 EFTA01091116 4.2.12 WC: 191694 MH: Well the fact of the matter if having a "Dershowitz" in this equation has brought our church an incredible amount of publicity and as a minister in my church, it is my obligation to bring about as much publicity as possible. KC: But you are using a Jewish lawyer when it's convenient and serves your purpose? MH: Well certainly its serving his purposes too and the ends justify the means. AD: My purposes are the purposes of the First Amendment. Mr. Hale, you will rue the day that you ever thought that I would give you publicity because I will not stop condemning your organization and you know that the only condition that I will accept your case is because you have given me the freedom to argue with you, to condemn you and to defeat you in the marketplace of ideas. MH: That's fine. AD: The only publicity you will get from me is the most negative kind of publicity because I say, your ideas belong in a nutshell because they are nutty ideas, they are reprehensible ideas... MH: So are those of the Jews. AD: And I have faith in the American people that they will reject your ideas in the marketplace of ideas and you should not have the benefit of censorship so that you can stand up and proclaim your views. You know, if the character committee hadn't kept him out, nobody would have heard of this despicable person. It is the character committee who has given him publicity just like the march in Skokie...you know the Nazis would have been able to march through Skokie, it would have been a one-day story, but for the censorship. Censorship creates publicity. What we are doing is hoping to give you the worst and most negative kind of publicity so people will reject your ideas. KC: So do you still want Mr. Dershowitz to represent you? MH: The fact of the matter is that we are confident that if people would consider our views, they will agree with them. AD: Nobody is afraid of your views. As long as you don't violate the law your views will be defeated in the marketplace of ideas Ultimately, I did not represent Hale because he refused to allow me to donate his legal fee to the ADL, NAACP and other organizations that seek to combat his racist views in the marketplace of ideas. He lost his case and is now in prison for trying to arrange a "hit" on the judge who ruled against him. 145 EFTA01091117 4.2.12 WC: 191694 Following Hale's imprisonment, I received a call from the FBI advising me that Hale may have put out a hit on me as well. For several weeks, FBI agents monitored and protected me. So much for Matthew Hale merely believing in freedom of speech! This was neither the first nor the last time I was physically threatened for what I believe. Free speech is anything but free in the real world of high passions and violent tempers. It is imperative that those of us who defend the rights of bigots and others to express horrible views go out of our way to challenge these bad views in the marketplace of ideas. It is a commonplace among civil Libertarians that the appropriate answer to bad speech is good speech, not censorship. We must provide that good speech as we defend the bad speech. I had the opportunity to do just that when the actress Vanessa Redgrave had a scheduled performance with the Boston Symphony Orchestra cancelled because of her controversial political views and activities. I defended her right to perform but challenged her to a debate about her outrageous political views. She declined because she was on the Central Committee of the Revolutionary Workers Party — a British Stalinist group — and the Party had to approve in advance everything she said in public. I then explained the hypocrisy of her complaints about being "blacklisted" for her political views and activities, while she herself, and her Party, advocated the blacklisting of others. In 1978, Redgrave had offered a resolution demanding that the British Actors Union blacklist Israeli artists and boycott Israeli audiences. The resolution included a "demand" that "all members working in Israel terminate their contacts and refuse all work in Israel." Several years later, she justified as "entirely correct" the blacklisting of Zionist speakers at British universities. And she has praised the ultimate form of censorship: the political assassination of Israeli artists, because they "may well have been enlisted ... to do the work" of the Zionists. Redgrave herself has used her art "to do the work" of terrorists. In 1977, she made a film calling for the destruction of the Jewish state by armed struggle. She has personally received training in terrorism at camps from which terrorist raids were staged. She advocated the assassination of Nobel Peace Prize winner Anwar Sadat. After playing her controversial role as concentration camp survivor in Arthur Miller's 1980 teledrama "Playing for Time" she traveled around the world arguing that her selection for the role constituted a propaganda victory against Israel. In 1982, the Boston Symphony Orchestra hired Redgrave to narrate several performances of Stravinsky's opera-oratorio "Oedipus Rex". There is some dispute over whether she was hired entirely because of her unquestionable acting ability or also because of her political "courage." As soon as the decision was announced, there was outrage among some of the orchestra's musicians, subscribers and board members. Some musicians suggested that they would exercise their own freedom of association by refusing to perform with a terrorist collaborator who justified assassination of artists. At the end, the orchestra decided — wrongly, in my view — to cancel the performances of "Oedipus Rex". They offered to pay Redgrave the money she would have received if the show had gone on. Redgrave declined the offer and sued the orchestra for breach of contract, seeking 146 EFTA01091118 4.2.12 WC: 191694 $5 million in damages. She claimed that the effect of the cancellation was that she was "blacklisted" by the Boston Symphony Orchestra and could no longer find appropriate work. The orchestra board responded that Redgrave has earned more money since the cancellation than before it, and that if anyone has refused to hire her, it is because she has used her art to serve the political ends of terrorism. The board has also proved that Redgrave has turned down roles such as that of Andrei Sakharov's wife in an HBO production because she believed the film might be seen as "anti-Communist propaganda". Redgrave's supporters threw a fundraiser for her. I prepared and distributed a leaflet that provided the facts to those attending and urged them to ask Redgrave "to explain her hypocrisy". Several members of the audience were surprised to learn of her views on blacklisting Israeli artists. Others said they knew of Redgrave's selective condemnation of blacklisting but didn't care, because — as one woman put it — "anything is fair in the war against Zionism."51 In the end, the case was settled and Redgrave persisted in her hypocrisy. I was comfortable in my role defending her rights while exposing her wrongs. Not everyone understands this distinction. My own mother insisted that I was "helping" Nazis and terrorists when I supported their right to speak, even while condemning what they were saying. Far better educated people than my mother also claimed not to understand. In a debate in Canada on laws criminalizing Holocaust denial, I took my usual position in favor of freedom of speech: I regret to say this, but I think that Holocaust denial speech is not even a close question. There is no persuasive argument that I can think of in logic, in law, in constitutionality, in policy, or in education, which should deny [anyone] who chooses to the right to take whatever position he wants on the Holocaust. The existence of the Holocaust, its extent, its fault, its ramifications, its political use are fair subjects for debate. I think it is despicable for anybody to deny the existence of the Holocaust. But I cannot sit in judgment over the level of despicability of anybody's exercise of freedom of speech. Of course I agree that sticks and stones can break your bones, and words can harm you and maim you. That's the price we pay for living in a democracy. It's not that speech doesn't matter. If speech didn't matter, I wouldn't devote my life to defending it. Speech matters. Speech can hurt. That's not why those of us who defend free speech, particularly free speech of this kind, do it. We do it because we don't trust government. In response, Judge Maxwell Cohen said that anyone who holds such views "ought not to be a law teacher." I disagree. Professors must defend the right of those they disagree with to express wrongheaded views, while insisting on their own right—indeed obligation—to express disagreement with such views. When Yasser Arafat died in 2004, I was asked by Palestinian students at Harvard to represent them in the failed efforts to fly the Palestinian flag from a flagpole in the Harvard Yard. They knew my negative views of their hero—I had called Arafat's death "untimely," because if he had Si Kevin P. Convey, Actress Redgrave defends her views, but lawyer Dershowitz steals the show. Boston Herald. Dershowitz: Redgrave Views on Censorship Hypocritical. 147 EFTA01091119 4.2.12 WC: 191694 only died five years earlier, the Palestinian Authority might well have accepted the Clinton- Barak peace offer—but they also knew my views on freedom of speech. I agreed to represent them, as long as they understood that I would continue to criticize both Arafat and those who considered him a martyr. They agreed and we got Harvard to allow them to fly their flag. Not everyone—even university professors-seem to understand this important distinction. I encountered this intellectual muddle-headedness in 2010 when I received an honorary doctorate from Tel Aviv University and was asked to deliver a talk on behalf of the honorees. In my talk, I defended the right of professors at the University of Tel Aviv to call for boycotts against Israeli universities. This is part of what I said: Israeli academics are free to challenge not only the legitimacy of the Jewish state but even, as one professor at this university has done, the authenticity of the Jewish people. Israeli academics are free to distort the truth, construct false analogies and teach their students theories akin to the earth being flat—and they do so with relish and with the shield of academic freedom. So long as these professors do not violate the rules of the academy, they have the precious right to be wrong, because we have learned the lesson of history that no one has a monopoly on truth and that the never-ending search for truth requires, to quote the title of one of Israel's founders' autobiographies, "trial and error." The answer to falsehood is not censorship; it is truth. The answer to bad ideas is not firing the teacher, but articulating better ideas which prevail in the marketplace. The academic freedom of the faculty is central to the mission of the university. After defending their right to freedom of expression, I exercised my own right to express my own views about the merits and demerits of their ideas: But academic freedom is not the province of the hard left alone. Academic freedom includes the right to agree with the government, to defend the government and to work for the government. Some of the same hard leftists who demand academic freedom for themselves and their ideological colleagues were among the leaders of those seeking to deny academic freedom to a distinguished law professor who had worked for the military advocate general and whose views they disagreed with. To its credit, Tel Aviv University rejected this attempt to limit academic freedom to those who criticized the government. Rules of academic freedom for professors must be neutral, applicable equally to right and left. Free speech for me but not for thee is the beginning of the road to tyranny. Following my talk a group of Tel Aviv professors accused me of McCarthyism and of advocating censorship. The Chronicle of Higher Education "reported" that I was pressuring the University to take action against professors who support boycotts against Israeli Universities. I responded: I continue to oppose any efforts by any university to punish academics for expressing anti-government views. But I insist on my right to criticize those with whom I disagree. 148 EFTA01091120 4.2.12 WC: 191694 Surely that is the true meaning of academic freedom. I urge your readers to read the full text of my controversial talk at Tel Aviv University.52 Another example of the confusion between defending someone's right to speak and reporting that person's views on the merits of his speech arose in the context of efforts by Norman Finkelstein, a failed academic who had been fired from several universities, to obtain tenure at De Paul University. Finkelstein had never published any scholarship. Moreover, he had been dismissed by Brooklyn College for abusing students who disagreed with his extremist views and had engaged in sexist behavior at DePaul. Not exactly a strong record for tenure. But he had something going for him. He was so vitriolically anti-Israel, that he had many radical supporters who cared more about his politics than his scholarship. He also argued that most people who claim to be victims of the Holocaust—including Elie Wiesel—were "frauds" and "liars" and that the Holocaust itself was being exaggerated for political and financial reasons. By falsely claiming that those opposed to his tenure were motivated by his political views on Israel and the Holocaust, rather than his lack of scholarship, he hoped to bestow on himself the mantle of victimhood to a conspiracy of Zionist-McCarthyites. I exposed his tactic in the Wall Street Journal by comparing it to the ploy used by Mary McCarthy' fictionalized failed academic who, realizing he wouldn't get tenure, became a communist so that he could claim that he was being denied tenure because he was a Red rather than a lousy scholar: "Facing tenure denial, Mr. Finkelstein opted for a tactic that fit the times. He expressed views so ad hominem, unscholarly and extreme that he could claim the decision was being made not on the basis of his scholarship, but rather on his politics."53 52 http:/Avww.haaretzcom/full-text-of-alan-dershowitz-s-tel-aviv-specch-1.289841 53 Mr. Finkelstein is supported by hard-leftists like Noam Chomsky and Alexander Cockburn. They regard him as a scholar in a class with Ward Churchill. He's the Colorado professor who called the 9/11 victims "little Eichmanns" comparing Finkelstein to Churchill is a characterization with which I would not quarrel. Mr. Finkelstein does not do "scholarship" in any meaningful sense. Although his writings center on Israel (which he compares to Nazi Germany) and the Holocaust, he has never visited Israel and cannot read or speak German — precluding the possibility of original scholarship. Prof. Bartov characterized his work as an irrational Jewish "conspiracy theory." The conspirators include Steven Spielberg, NBC and Leon Uris. The film "Schindler's List," Mr. Finkelstein argues, was designed to divert attention from our Mideast policy. "Give me a better reason! . . . Who profits? Basically, there are two beneficiaries from the dogmas [of Schindler's List]: American Jews and American administration." NBC, he says, broadcast "Holocaust" to strengthen Israel's position: "In 1978, NBC produced the series Holocaust. Do you believe, it was a coincidence, 1978? Just at this time, when peace negotiations between Israel and Egypt took place in Camp David?" He argues that Leon Uris, the author of "Exodus," named his character "Ari" in order to promote Israel's "Nazi" ideology: "[B]ecause Ari is the diminutive for Aryan. It is the whole admiration 149 EFTA01091121 4.2.12 WC: 191694 The final part of Mr. Finkelstein's quest for tenure is to blame his tenure problems on "outsiders." He claims that I intruded myself into the DePaul review process, neglecting to mention that I was specifically asked by the former chairman of DePaul's political science department to "point [him] to the clearest and most egregious instances of dishonesty on Finkelstein's part." I responded by providing hard evidence of made-up quotes and facts — a pattern that should alone disqualify him from tenure... Like the character in the "Groves of Academe," Mr. Finkelstein generated protests by students and outsiders. He has encouraged radical goons to email threatening messages; "Look forward to a visit from me," reads one. "Nazis like [you] need to be confronted directly." He has threatened to sue if he loses — while complaining about outside interference. No university should be afraid of truth — regardless of its source — especially when truth consists of Mr. Finkelstein's own words. He did not receive tenure. I'm proud of the small role I played in helping to maintain academic standards at DePaul University by exposing Finkelstein's lack of scholarship and the sordid tactic he tried to use to capitalize on that failing. My actions in exposing Finkelstein were completely consistent with my commitment to free speech and academic freedom. Finkelstein continues to lecture at universities around the world—including some that have refused to invite me—but he no longer has the academically undeserved imprimatur of DePaul University. for this blond haired, blue eyed type." (Ari is a traditional Hebrew name dating back to the Bible.) He has blamed Sept. II on the U.S., claiming that we "deserve the problem on our hands because some things Bin Laden says are true.") He says that most alleged Holocaust survivors — including Elie Wiesel — have fabricated their past. Like other anti-Semites, Mr. Finkelstein generalizes about "the Jews"; for example: "Just as Israelis ... courageously put unruly Palestinians in their place, so American Jews courageously put unruly Blacks in their place." He says "the main fomenters of anti- Semitism "are `American Jewish elites' who need to be stopped." Normally, no one would take such claims seriously, but he boasts that he "can get away with things which nobody else can" because his parents were Holocaust survivors. And then, of course, there is me. In a recent article, "Should Alan Dershowitz Target Himself for Assassination?" Mr. Finkelstein commissioned a cartoon by a man who placed second in the Iranian Holocaust-denial cartoon contest. The Hustler-type cartoon portrayed me as masturbating in joy while viewing images of dead Lebanese on a TV set labeled "Israel peep show," with a Star of David prominently featured. Mr. Finkelstein has accused me of not having written "The Case For Israel" but when I sent his publisher my handwritten draft, they made him remove that claim. He has accused virtually every pro-Israel writer, including me, of "plagiarism." I asked Harvard to conduct an investigation of this absurd charge. Harvard rejected it, yet he persists. 150 EFTA01091122 4.2.12 WC: 191694 Academic freedom is not limited to faculty. It extends to students as well, and no professor has the right to propagandize his captive classroom audience or to grade them down if they disagree with his political opinions. But it is sometimes difficult to distinguish between acceptable teaching and unacceptable prostheletizing. This too is an area where rights may be in conflict and a delicate balance, always skewed in favor of speech, is required. 151 EFTA01091123 4.2.12 WC: 191694 Chapter 10: Speech that Conflicts with Reputational and Privacy Rights Defamation: "He that filches from me my good name:" Whenever a Holocaust denier or defamer of the Jews spews out his poison, I get calls and emails demanding that I sue them for defaming the Jewish people or committing a "blood libel." But under our First Amendment only an individual can be defamed. There is no such thing as group libel. In other words you can say all you want about "the Jews," "the Democratic Party," "the Blacks," "the Gays," and "the women"—obnoxious as these generalizations might be. An anti- Semite is constitutionally free to spread the blood libel against the Jewish people or the Jewish religion, so long as he is careful not to accuse a specific individual of killing Christian children for their blood. This is not true in other countries that do have group libel laws and other rules prohibiting racist statements. Not so under our First Amendment. In addition to the defamatory statement being directed against a specific individual, it must also cast him in a negative light. That used to be easier to define than it is today. For example, when a newspaper in the segregated Deep South made a typographical error and described a white man as a "colored gentleman," instead of a "cultured gentleman," that error was defamatory, since describing a white person as colored clearly could damage his career and hurt his position. Today, no court would consider it defamatory to mistakenly report on someone's race. It's a little more complicated when it comes to sexual preference. If a newspaper were to characterize a heterosexual politician as gay, that might well hurt his electoral chances, but courts would be reluctant today to rule that being called "gay" is an insult. The same is true of other former words of opprobrium that have lost or decreased their negative connotations over the years. In addition to being damaging, a defamation must also be untrue. This wasn't always the case, and Thomas Jefferson successfully fought to limit defamations to untruthful statements about an individual.54 If the individual defamed is a public figure, such as a politician, celebrity or anyone else who has sought the limelight, yet another hurdle must now be overcome. Since the Supreme Court's 1964 decision in New York Times v. Sullivan, a defamation action can be brought by a public figure only if the false statement was made with "actual malice—that is knowledge that it was false or with reckless disregard of whether it was false or not." I was Justice Goldberg's law clerk when the Supreme Court rendered that precedent-shattering decision. Goldberg told me that he was concerned that the daunting requirements of the case would make it open season on public figures and would lower the standards of journalistic ethics. He himself, as a public figure, had been defamed on several occasions and it had stung him. Nonetheless, he concurred in the decision and wrote the following stirring words about the freedom to criticize: "The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from s° See Finding Jefferson 152 EFTA01091124 4.2.12 WC: 191694 speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel." Since I am a public figure under the law, I have been defamed on numerous occasions, especially on the Internet. The libels and slanders have been both personal and political. Although these defamations were published with actual malice, I have not sued, though I have often been tempted. (I once threatened to sue when a journalist made up a false racist and sexist quotation and attributed it to me; the newspaper investigated, agreed with me and made a contribution to my favorite charity). Many years after New York Times v. Sullivan I myself was charged with defamation—indeed criminal defamation—for exercising my own freedom of speech to criticize a judge for an opinion she wrote. This certainly made me appreciate our First Amendment. Here is the story: One day in my office I opened an envelope and saw a notice that an Italian prosecutor in the city of Turin had initiated a criminal investigation against me. I had no idea what she could be referring to. The letter stated that I had committed the alleged act in the city of Turin on January 27'h, 2005. I checked my calendar and discovered that I was teaching students at Harvard Law School on that day and then attending a lecture by a prominent federal judge. I could not possibly have been in Turin or engaged in any criminal act there. Yet I soon discovered that I was being charged with criminal libel for statements I had made in an interview with an Italian journalist over the telephone. The journalist was in New York. I was sitting at my desk in Cambridge. But the interview was published by the newspaper La Stampa in Turin on January 25th, 2005. Accordingly, the alleged criminal act had taken place in Turin, even though I had never set foot in that city. Nor had I engaged in any act other than responding to questions and expressing my heartfelt views about a judge who had written a foolish and dangerous judicial opinion that ruled that three men suspected of recruiting suicide bombers were "guerrillas" and therefore not terrorists, and not guilty. I characterized her opinion as a "Magna Carta for terrorism," and instead of answering (or ignoring) me, she filed criminal charges with the prosecutor who decided to open an investigation. As far as I know, the charges against me are still pending in Italy. I have every intention to fight them if it comes to that. A variation on the theme of defamation is ridicule. Cartoons and drawings have long been used to ridicule the high and mighty. More recently photo-shopped pictures have superimposed the heads of public figures on the bodies of others to demean or insult them. In 1988, the Supreme Court ruled that the Reverend Jerry Falwell could not sue Hustler Magazine for publishing a parody of the well known Campari Liqueur ads in which a celebrity described "his first time." The ad relies on the obvious double-entendre on the first sexual and drinking experience. In the 153 EFTA01091125 4.2.12 WC: 191694 parody, Falwell is shown drinking and having sex with his mother—pretty disgusting! But as the Supreme Court rightly observed: "Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them." It ruled that parodies and caricatures, even revolting ones, were protected by the First Amendment. Several years after this decision, a young man named David Heller called me. He had been sued by a 60 year old fellow employee, Sylvia Smith Bowman, who was running for the presidency of their local union. Here is how the court described what Heller did: "Millie the plaintiff was on an approved leave to campaign in the union election, the defendant, David Heller, an employee in the plaintiffs office who supported the incumbent president, created two distinct photocopied representations of the plaintiff by superimposing a photograph of her face and name on two different photographs of women striking lewd or masturbatory poses. The photograph of the plaintiffs face was taken from a campaign card she had distributed to union members. The photographs on which the defendant superimposed the plaintiffs face were taken by the defendant from pornographic magazines. In one of the photographs, the model is nude from the waist down, except for garters, and is posed toward the camera with her legs wide apart as she holds a banana next to her exposed breast. In the other photograph, the model is entirely naked, and appears to be engaged in masturbation. The representations were crafted by the defendant during regular office hours and reproduced on photocopiers owned by the department. The defendant then distributed his handiwork to five coworkers in the Worcester office. Subsequently, the representations were reproduced by employees other than the defendant and distributed to a wider office audience." Heller said that he had decided to create these parodies after Bowman had made what he regarded as crude and sexist statements against men, including calling them "dickheads." The Supreme Judicial Court of Massachusetts eventually ruled, over a strong dissent, that Bowman was not a "public figure" because the union election was not "a public controversy." 154 EFTA01091126 4.2.12 WC: 191694 The dissenting judges disagreed, arguing that "an election is the absolute paradigm of a public controversy." My own view is that the majority, especially the woman who wrote the decision, was so deeply offended by the image at issue that it blinded them to the obvious public nature of a union election. It was a hard case that made bad law. Fortunately the bad law it made has not been followed in other cases involving less disturbing images. I understand how Bowman must have felt when several years later I was victimized by a cartoon that was similar to the one at issue in her case. It was commissioned by Norman Finkelstein and used to illustrate an article he wrote calling for my assassination. It was a full-color cartoon by a South American neo-Nazi portraying me as watching the Israeli Army kill Lebanese civilians. It had me sitting in front of the television and masturbating in ecstasy over the civilian bodies strewn on the ground. Since I am clearly a public figure, and since this was plainly a parody, it was protected speech under the First Amendment. To be a First Amendment lawyer requires developing thick skin. Privacy- The right to be left alone The right of the media to publish purely private though truthful information was the subject, more than 100 years ago, of a classic law review article co-authored by Louis Brandeis, who eventually became one of the "founding fathers" of the 20th Century rebirth of the First Amendment. As a young lawyer, Brandeis was concerned about how local tabloids were publishing gossip about prominent people, including members of his own partner's family. He and his partner wrote "The Right to Privacy" in the Harvard Law Review (1890) in which they set out this new right to "be let alone," which they analogized , at least superficially, to the law of defamation. Remarkably, especially in light of subsequent developments, Brandeis did not seem particularly sensitive to how his new right of privacy might conflict with the old right of the press to publish scandalous material. The conflict between privacy and publication becomes particularly sensitive when they privacy at issue relates to minors. I have been involved in several such cases. One of them pitted the right of Brook Shields to prevent the publication of nude photographs taken of her when she was 10 years old against the right of the man who "owned" the photos to publish them. When Brooke Shields was 10, her ambitious mother Teri signed a contract with an equally ambitious photographer to photograph Brooke naked, taking a bath. Brooke was paid $450 for the photo sessions by Playboy Press, and her mother signed a release giving the photographer the unlimited right to publish the photographs anywhere and at any time. Seven years later, as Brooke was about the enter Princeton as a freshman, the photographer decided to exploit her fame by producing a calendar featuring naked pictures of the 10 year old. Brooke was upset that any such calendar would circulate among her fellow students at Princeton and would cause her great embarrassment. She hired a former student of mine to try to negotiate with the photographer to buy back the rights, and if that failed, to try to prevent publication of the photographs. My former student sought my advice on the matter. I told him it would be an uphill fight to try to enjoin the 155 EFTA01091127 4.2.12 WC: 191694 publication of the pictures, because they were not obscene and because prior restraint is always disfavored by the law. The only theory on which I thought she could possibly succeed was that Brooke's mother had no right to surrender her daughter's privacy and that Brooke, now approaching adulthood, should have control over her own image. Ultimately the court ruled, in a bizarre opinion, that Brooke had essentially waived her right to privacy by allowing the photographs to be published earlier, and by pursuing a career in which she has relied on her sexuality for her success. The court put it this way: "Much of plaintiffs recent commercial activity upon which her fame is based has been far more sexually suggestive than the photographs which have been shown to the court. These photographs are not sexually suggestive, provocative or pornographic; they do not suggest promiscuity. They are photos of a prepubescent girl in innocent poses at her bath. In contrast, defense counsel have submitted numerous samples of sex-oriented publicity concerning plaintiff. Particularly notable is her widely televised sexually suggestive advertisement for blue jeans. Recent film appearances have been sexually provocative (e.g., "The Blue Lagoon", "Endless Love".). Plaintiffs claim of harm is thus undermined to a substantial extent by the development of her career projecting a sexually provocative image. This reasoning fails to distinguish between a 17 year old and a 10 year old. The earlier photographs were taken of a 10 year old kid, whose mother controlled what she would do. Her later appearances were made by a near-adult and were far more within her own control. The court simply ignored the argument by the 10 year old should not be bound by foolish decisions made by an ambitious mother when Brooke was too young to say no. I believe that if this case were to come before a court today, in light of the new sensitivity toward child exploitation, the case would have been cited in favor of Brooke Shields. I had mixed feelings about the result because it was a victory for the First Amendment, but at a heavy cost to a young woman about to enter college. Eventually the case was settled and the calendar wasn't distributed to Brooke's Princeton classmates. Brooke Shields went on to a successful career as a multi-dimensional performer. Mother conflict arose when a blogger posted a naked photograph of a famous athlete's two year old son, and in the caption focused the viewer's attention on the size of the boy's penis. The issue I was asked to address was whether the blog met the criteria for child pornography, which is not protected by the First Amendment. This was an unusual request, since in most of my prior cases invoking charges of child pornography, I defended the person charged. In one such case, a medical student who had worked as a camp counselor had taken thousands of photographs of his campers, including several of them "skinny dipping." The focus of the photographs was not on the genitals and we argued that they were no different, as a matter of law, from nude photographs 156 EFTA01091128 4.2.12 WC: 191694 taken by recognized artists such as Robert Mapplethorpe, Sally Mann and David Hamilton that were exhibited in museums. I won that case and several others like it. This situation was different; because the only purpose of publishing the child's photograph was to call attention to his penis. Moreover, his parents had not consented their child to being photographed by a paparazzi on an isolated beach, and so the family's privacy rights had been violated. Eventually, the matter was resolved by "the court of public opinion" and the "marketplace of ideas." Viewers of the blog were so outraged and the person who posted it so roundly condemned, that the post was removed. Another area of conflict between the First Amendment and other provisions of the Bill of Rights arises in the context of criminal trials, when the media seeks to publish information—such as an excluded confession—that may prejudice a defendant's right to a fair trial. A variation on this theme is the media's refusal to publish the names of alleged rape victims, while publishing the names and mug shots of the defendant. This practice does not directly impinge on the First Amendment because the decision not to publish is made by the media, rather than the government. Indeed, the Supreme Court has struck down a statute that precluded the media from publishing the names of alleged crime victims. I have been involved in several cases that pitted the rights of the media under the free speech rights of the First Amendment, against the fair trial rights of criminal defendants under the Sixth Amendment. I have generally been on the side of the First Amendment, while sympathizing with the situation faced by defendants who would prefer to see the press muzzled when it came to their cases. One case in which I sided with the privacy rights of a public figure over the publication rights of the media was Chappaquiddick. I was part of the defense team organized by Senator Kennedy's staff. Part of my job was to assure the confidentiality of the testimony given at the inquest concerning the death of Mary Jo Kopenche. The witnesses who were subpoenaed to testify at this secret inquest-especially the young women who shared the house for the weekend—were not offered the right to counsel or other rights available at an open proceeding. We argued with some success, that because the inquest was secret and lacked the usual legal safeguards of public hearings, the right of the witnesses to confidentiality trumped the right of the media to immediate disclosure. The First Amendment requires that the media and dissenters need breathing room and presumption should always be in favor of a maximalist view of free speech. But this presumption is not without significant risks to deservedly good reputations which can be damaged by defamatory or ridiculing speech. As with other potentially harmful types of expression, defamation and ridicule come with a heavy price—one we must be prepared to pay to keep the First Amendment vibrant. Not everyone is prepared to pay that price. 157 EFTA01091129 4.2.12 WC: 191694 Conclusion: The Future of Freedom of Speech Although most Americans support freedom of speech in the abstract, far fewer support speech that hurts them. Free speech for me but not for thee is a common limitation. Let me propose a test for my own readers to see whether you qualify to join "the First Amendment Club." Do you really believe in the freedom of speech guaranteed by our First Amendment? Or do you just support the speech of those with whom you agree? Nearly two hundred years ago, the French philosopher Voltaire articulated the fundamental premise underlying true support for freedom of speech: "I disapprove of what you say, but I will defend to the death your right to say it." Defending "to the death" may be a bit strong and "disapprove" a bit weak, but the core of Voltaire's point is crucial. It is easy, and rather self-serving, to rally `round the flag of the First Amendment on behalf of those whose speech you admire or enjoy. But unless you are prepared to defend the freedom to speak of those whom you despise—those who make your blood boil— you cannot count yourself as a member of that rather select club of true believers in freedom of expression. I call it a select club because most people, even most who claim adherence to the First Amendment, favor some censorship. Deep down, clearly everyone wants to censor something. I have Jewish friends who support freedom of expression for everyone—except for Nazis who want to march through Jewish neighborhoods like Skokie, Illinois. I have African-American friends who support freedom of speech for everyone—except those who would try to justify racism. I have women friends who support freedom of speech for everyone—except those who are in the business of selling sexist pornography. And the list goes on. When I spoke at a rally of artists, museum curators, and gallery owners protesting the prosecution of the Cincinnati museum curator who had exhibited the Mappelthorpe photographs of naked children and homosexual adults, it was a very self-serving rally. Of course, artists, museum curators, and gallery owners would protest the censorship of art! Art is their business, after all. When I represented the musical Hair, which had been "banned in Boston" back in the sixties, of course we got the support of the theater crowd. No one should be surprised that the leader of the rock band 2 Live Crew has become a First Amendment maven, since his rap lyrics have been censored. When the Palestine Liberation Organization (PLO) was prevented from opening an information office in Washington, it was predictable that Arab-American supporters of the PLO would cry "First Amendment foul." It was not as predictable that many Jewish supporters of Israel followed my lead in opposing such censorship. And what about the classic of self-serving promotion of the Bill of Rights: The Philip Morris sponsorship of TV ads praising the First Amendment at a time when Congress was considering further limitations on cigarette advertising, or corporate support for the First Amendment right to make unlimited contributions to political campaigns. You do not have to be a supporter of 158 EFTA01091130 4.2.12 WC: 191694 freedom of speech to protest when the government tries to censor the speech of those who are goring your ox. Some examples from my personal Hall of Fame of true First Amendment believers: Women against Pornography and Censorship is an organization that tries to educate the public about what they perceive to be the sexist evils of pornography. But at the same time, they try to educate about the evils of censorship, reminding their listeners that if the government is given the power to censor pornography today, then tomorrow it may demand the power to prohibit the publication of information about birth control and abortion. Action for Children's Television strongly opposed much of the daily fare to which our children are exposed on the boob tube, but they also oppose censorship of television by the Federal Communications Commission. Those Jews, including some Holocaust survivors, who defended the rights of the Nazis to march through Skokie and who now defend the rights of hateful Holocaust deniers to publish their garbage. Those pro-choice activists who refuse to call the cops when right-to-lifers picket in front of abortion clinics. One group that is in danger of being drummed out of the First Amendment Hall of Fame is the American Civil Liberties Union (ACLU). Until recently, it was a charter member. But in recent years some of its branches have gotten soft on the First Amendment when it comes to racist, sexist and homophobic speech on college campuses. The ACLU has refused to defend the rights of the CIA to recruit on campus. It was nowhere to be seen when Dartmouth University disciplined members of the right-wing Dartmouth Review for engaging in "vexatious," "aggressive," and "confrontational" speech against an African-American professor and as mentioned earlier, some of its leaders defended the right of pro-Palestinian students to shut down a pro-Israel speaker. As of now, the ACLU is still a member, but it is getting close to being placed on probation. If you want to join the First Amendment Club, you must attend at least one free speech rally in support of views that you thoroughly despise. I mean really hate! It is not enough to say, as some do about the Mappelthorpe photographs, "Well, that's really not my taste, but I don't see why others who enjoy that kind of thing shouldn't be free to see it." That's cheating. You must find something that really disgusts, angers, or offends you to the core. Condemn the content, but go out and defend its right to be expressed. Then come and claim your First Amendment membership card. Too few Americans qualify for the card. Until more do, the First Amendment will always be at risk, because it is always being confronted with new and unanticipated challenges. 159 EFTA01091131 4.2.12 WC: 191694 The First Amendment has undergone more change in the past fifty years than it had in the first 170 years of its existence. Most of the changes have been for the better, such as the virtual elimination of offensiveness as a justification for censorship, and the severe limitations placed on defamation actions against public figures. I'm proud of the role I have played in helping bring about these positive changes. There are several areas, however, where the First Amendment remains in grave danger. One of them is the use of threatened violence to impose self-censorship, if not governmental censorship. Although the "fighting words" doctrine has always imposed a limitation on freedom of speech, it had been considerably weakened both in theory and in practice until the recent advent of radical [truncated]