Taking the Stand

by Alan Dershowitz

  Yet the ACLU letter never once criticizes the censoring Muslim Union students, while it condemns those who simply wanted to hear the speaker.

  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.10

  After being criticized for supporting censorship, the executive director of the ACLU 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.11

  The opposite is true. If these students had been let off with a slap on the wrist from the university, that would have encouraged other students around the nation and the world to continue with the efforts to prevent pro-Israel and other “politically incorrect” speakers from delivering their speeches. Indeed, even after these students were disciplined, other students tried to shut down several invited visiting students who had served in the Israeli army and were recounting their experiences.12

  The prosecutors in the case 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.13

  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. Moreover, these students must be made to understand that their conduct is not only morally indefensible; it is criminal.14

  The same would be true if Jewish students were to try to prevent an anti-Israel speaker from presenting the case against Israel.

  The successful prosecution of the Irvine Ten did not “chill” the free speech rights of hecklers. No one should be prosecuted for simply booing the content of a speech, leafleting a speaker, holding up signs in the back of the auditorium, conducting a counterevent or demonstration. These young criminals 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, and especially not by officials of the ACLU.

  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 when the jury appropriately convicted them. Sometimes it takes tough measures to enforce the First Amendment against those who believe that only they own the “truth” and who seek to silence opposing views by shouting and shutting them down.

  9

  THE RIGHT TO FALSIFY HISTORY AND SCIENCE

  Holocaust Denial, Space Aliens, and Academic Freedom

  The American First Amendment is not emulated by all freedom-loving nations. In some European countries (particularly Germany,1 Austria,2 and France3), it is a crime to deny the Holocaust. In France, legislation was proposed to make it a crime to deny the Armenian Genocide. In Turkey it is a crime to claim that the Turks engaged in genocide against the Armenians,4 even though it is a historical fact recognized by scholars around the world.

  Under our First Amendment, no one can be punished either for denying a historical event or for proclaiming that it 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 traffic 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”—and 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.”5

  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 took the time to check 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.6 Faurisson’s writing was not based on “extensive historical research.” It was not research at all. It was the fraudulent manufacturing of false antihistory. It was 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. I exposed Faurisson’s deceptions in my own writings, while continuing to defend his right to rewrite history.

  Chomsky wrote an essay in defense of Faurisson that he allowed to be used as a foreword to Faurisson’s next book, about his career as a Holocaust denier!7 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, this time going even further and defending Faurisson against the charge that his writings and speeches were anti-Semitic:

  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.8

  When this statement was quoted in a Boston Globe article praising Chomsky for his defense of “underdogs” like Faurisson, I wrote a 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 Faurisson’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.9

  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 is an anti-Semitic connotation to the denial of the Holocaust” (emphasis added).

  Well, I believe there is, and so do most other reasonable people who understand the meaning of words in context. I also believe that civil libertarians who defend the free speech rights of neo-Nazis should 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 foreword 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 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 encounters 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 meant blacks and Jews—were destroying the “white race” and how he was going to change all that if he was admitted to the bar.

  Couric then asked me why I believed a man with Hale’s views should be allowed to become a lawyer.

  ALAN DERSHOWITZ: 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.

  KATIE COURIC: 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: Do you see the irony that you hate Jews and yet you are calling on Mr. Dershowitz to help you?

  MATTHEW HALE: Having a “Dershowitz” in this equation has brought our church an incredible amount of publicity.

  AD: 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. 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.10

  Ultimately, I did not represent Hale, because he refused to allow me to donate his legal fee to the ADL, the NAACP, and other organizations that seek to combat his racist views in the marketplace of ideas. He lost his case11 and is now in prison for trying to arrange a “hit” on the judge who ruled against him.12

  Following Hale’s imprisonment, I received a call from the FBI advising me that Hale might 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. Unlike Chomsky, I have always taken this obligation seriously. 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 in 1982 when the Boston Symphony Orchestra hired Vanessa 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.

  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 Workers Revolutionary Party—a British Communist 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, demanded that the British Actors Union blacklist Israeli artists and boycott Israeli audiences. 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.

  In 1977, Redgrave 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 television drama Playing for Time, she traveled around the world arguing that her selection for the role constituted a propaganda victory against Israel.

  In the end, the BSO 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 $5 million in damages.

  When Redgrave’s supporters threw a fund-raiser for her, I distributed a leaflet that provided the facts regarding her own support for blacklisting Israeli artists. Several of her erstwhile supporters, who had not been aware of her hypocrisy, refused to support her lawsuit.

  In the end, the case was settled. I was comfortable in my role defending Redgrave’s rights while exposing her wrongs.

  Not everyone, of course, understands this distinction. Chomsky certainly doesn’t. Neither did my mother, who 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.13

 
; But a group of Harvard Palestinian students did understand.

  When Yasser Arafat died in 2004, I was asked by Palestinian students to represent them in their 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 only died five years earlier, the Palestinian Authority might well have accepted the Clinton-Barak peace offer14—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.15 It was a great day for freedom of speech at Harvard, as all sides were able to express their very different views.

  Academic freedom is an important aspect of the First Amendment. It applies to students and faculty alike, outside and inside the classroom. But inside the classroom, no professor has the right to propagandize his captive classroom audience or to grade them down if they disagree with his political opinions. It is sometimes difficult to distinguish between acceptable teaching and unacceptable proselytizing. This too is an area where rights may be in conflict, and a delicate balance, always skewed in favor of speech, is required.

  DOES ACADEMIC FREEDOM INCLUDE A PROFESSOR’S RIGHT TO PUBLISH A BOOK ABOUT THE POSSIBILITY THAT “ALIEN ABDUCTIONS” MAY BE REAL?

  Over the years several Holocaust deniers have challenged me to debate them on whether the Holocaust occurred. I have a standard answer:

  I will debate whether the Holocaust occurred but only as a part of a series of debates on the following subjects: Elvis Presley is alive and well; the space shuttle never landed on the moon; the earth is flat; and space aliens have made contact with lots of Americans.