I regard the debatability of the Holocaust as akin to the debatability of these other absurd fantasies. But in 1995, I actually became involved in a case that tested the limits of academic freedom in the context of claims that space aliens may actually have visited the patients of a well-known Harvard medical researcher.
The case centered on a book written by a distinguished Harvard Medical School professor named Dr. John Mack, a psychiatrist and Pulitzer Prize–winning author. The book that became the subject of the case was called Abduction: Human Encounters with Aliens.16 It recounted Dr. Mack’s treatment of numerous psychiatric patients who had been referred to him after claiming that they had been abducted by space aliens. After examining them, he concluded that many of them exhibited none of the classic symptoms of the kind of mental illness that would produce delusions of abduction. Instead, they exhibited symptoms similar to those of classic trauma victims who had actually been abducted. These findings left open several possible explanations, including that the diagnostic categories were flawed or incomplete. Nothing controversial there! But it also did not preclude the possibility, according to Dr. Mack, that these patients were not delusional—that they had actually experienced alien abductions! Although Dr. Mack was careful to hedge his own conclusion by acknowledging that “we do not know if any of [these] phenomena exist literally on the purely material plane of reality,”17 he refused to dismiss the possibility that his patients were accurately reporting what had happened to them.
Dr. Mack’s book became an instant bestseller and he became a talk show celebrity. Harvard was not amused. The dean of Harvard Medical School called Dr. Mack on the carpet and appointed a faculty committee to investigate his “astounding” claims about the possible reality of alien abductions.
Dr. Mack called and asked, “Would you like to represent a modern day Galileo?” I told him that he needed a lawyer outside of Harvard and recommended Eric MacLeish, a superb lawyer with whom I had worked on other cases involving academic discipline. I decided to limit my role to advocating academic freedom at Harvard and critiquing the appointment of an investigatory committee.
Because it is a private university, Harvard is not legally bound by the First Amendment, but over the years—and through many cases involving students and faculty—I have helped persuade Harvard to accept the principles of the First Amendment and to impose its restrictions on Harvard’s actions.
Harvard took the position that it was investigating only Dr. Mack’s “methods of study” and the “quality of his scholarship,” rather than his “astounding” conclusions. But the reality was that they never would have considered questioning a tenured professor’s methodology or scholarship if he had concluded that his patients were hallucinating about space aliens. It was his astounding conclusions that had motivated the investigation.
I posed the following questions in the Harvard Crimson:
Should a distinguished Harvard professor of psychiatry be subject to formal investigation and potential discipline for doing research on the possibility that people who claim that they were abducted by space aliens may not all be crazy after all?
… Will the next professor who is thinking about an unconventional research project be deterred by the prospect of having to hire a lawyer to defend his ideas?18
These questions bitterly divided the academic community, not only at Harvard but throughout the world. Some academics argued that a Harvard Medical School professor should not be lending his credibility to stories of space alien abductions. Others believed that great universities should not second-guess the research or publications of their tenured faculty, except for allegations of fraud, plagiarism, or violations of patients’ or students’ rights—none of which were alleged against Dr. Mack.
I pointed out that New York City College had never investigated the “research” of Professor Leonard Jeffries, who claimed that melanin had an influence on racial characteristics and made blacks better than whites, or of a white professor who argued that blacks had lower IQs than whites.
If Dr. Mack had taught at the divinity school, it is unlikely that any investigation would have been tolerated, since divinity schools are not governed by the laws of science. Indeed, it is at least as likely that space aliens exist as it is that God exists. The former is, however, a scientifically testable hypothesis (at least in theory); whereas the latter—for at least most theologians—is not. It is a matter of faith, not proof, and faith is not subject to the scientific method. But the paradigm of the scientific method—testable propositions subjected to double-blind and replicable experimentation—is not the only criterion for evaluating academic undertakings. This is certainly true in the formative, exploratory phases in the development of an idea. If Sigmund Freud, Karl Marx, or Martin Buber had been required to satisfy a committee before he could continue his research, the world might have been deprived of significant insights.
What was troubling was the principle behind a dean convening an investigative committee, at least in the absence of clear guidelines or criteria. Unless challenged, the precedent-setting effect of the appointment of an investigatory committee would act as a sword of Damocles hanging over the head of every professor who drifted outside the mainstream, especially in politically sensitive areas. It is noteworthy that the issue of space aliens is not a politically, racially, or sexually divisive one. Imagine if a committee were to be convened to examine controversial research that touched on any of these hot-button issues. There would be student demonstrations, alumni threatening to withhold contributions, and perhaps even governmental pressure. I urged the dean to reverse his decision to appoint an investigating committee and to undo the damage before it established a dangerous precedent. No great university should be in the business of investigating the ideas of its tenured faculty.
I then responded to those who argued that Harvard was interested only in Dr. Mack’s “methodology”:
To be sure, it is legitimate for a university to be concerned about the integrity of its faculty’s research. There are widely accepted criteria by which such integrity is judged: research must be reported honestly; sources must be attributed properly; informed consent must be obtained; biases must be disclosed. But these are not the criticisms directed against Dr. Mack’s research. What is on trial in his case are his ideas—his willingness to consider the possibility that the numerous accounts of alien abductions may not all be products of insane delusions. He has certainly not convinced me, but surely that cannot be the criteria.19
Finally, I issued a challenge to those who disagreed with Dr. Mack’s research: Respond to it on the merits—by reviews, rebuttals, debates, and books of their own. The marketplace of academic ideas is wide open. Dr. Mack’s idea “shop” in the marketplace should not be shut down; nor should it be subjected to extraordinary “inspections.” Critics should open their own idea “shops” and try to compete. Eventually the truth will out. That is what a university is all about.
After more than a year of “investigation” and thirty closed-door meetings and hearings, costing Dr. Mack close to $100,000 in legal expenses, the Harvard Committee decided to do nothing.20
Dr. Mack called me to thank me for my involvement in his case, saying that until my article appeared, no one had seen this as an issue of academic freedom, and that my support had changed the dynamics. “When it was Harvard against just me, I had no chance, but when you came in, everything changed.” I told him that I became involved to defend academic freedom, but that I was utterly unpersuaded by his book or by the possibility that actual “alien abductions” explained his patients’ symptoms. He replied, “That’s the safe approach.”
10
DEFAMATION AND PRIVACY
“He That Filches from Me My Good Name”1
Whenever a Holocaust denier or defamer of the Jews—whether it be Chomsky, Hale, Redgrave, or Faurisson—spews out his poison, I get calls and e-mails demanding that I sue him for defaming the Jewish people or committing “a blood libel.” But under
the First Amendment only an individual can be defamed. There is no such thing as group libel.2 In other words you can say all you want about “the Jews,” “the Democratic Party,” “the blacks,” “the gays,” and “the women”—obnoxious as such generalizations might be. An anti-Semite is constitutionally free to spread libels against the Jewish people or the Jewish religion, so long as he is careful not to accuse a specific individual of, say, killing Christian children for their blood. This is not true in other countries that do have group libel laws.
Under our laws, defamatory statements must be directed against a specific individual, casting 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 deemed 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.3 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. Thomas Jefferson fought to limit defamations to untruthful statements about an individual.4
If the individual defamed is a public figure, such as a politician, celebrity, or anyone else who 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.”5
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 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.6
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.)7
Many years after New York Times v. Sullivan, I was charged with criminal defamation for exercising my freedom of speech to criticize a judge for an opinion she wrote.8
One day in my office I opened an envelope and saw a notice that an Italian prosecutor 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, 2005. I checked my calendar and discovered that I had been teaching students at Harvard Law School on that day and then attended a lecture by a prominent federal judge. Pretty good alibi (which literally means “somewhere else” in Latin!). 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 in Cambridge. But the interview was published by the newspaper La Stampa in Turin on January 27, 2005.9 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 not terrorists, and therefore not guilty.
I characterized her opinion as a “Magna Carta for terrorism,”10 and instead of answering (or ignoring) me, she filed criminal charges with the Turin 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 of fighting them if it comes to that. The Turin prosecution made me appreciate our First Amendment all the more.
One age-old form of defamation is ridicule. Cartoons and drawings have long been used to ridicule the high and mighty. More recently, Photoshopped 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 aperitif ads in which a celebrity described his “first time.” The ad relies on the obvious double-entendre between one’s first sexual and first drinking experience. In the 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.11
The court ruled that parodies and caricatures, even revolting ones, were protected by the First Amendment, especially if the person being parodied is a public figure.
Several years after the Falwell decision, a young man named David Heller called me. He had been sued by a sixty-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 had done:
While the plaintiff was on an approved leave to campaign in the union election, the defendant, David Heller, an employee in the plaintiff’s 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 plaintiff’s face was taken from a campaign card she had distributed to union members. The photographs on which the defendant superimposed the plaintiff’s 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 def
endant 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.12
Heller claimed 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.” The dissenting judges disagreed, arguing that “an election is the absolute paradigm of a public controversy.”13 I believe 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 contentious union election in which both sides sling dirt in the tradition of American elections. 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 or more public personalities.
I understood 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 the notorious Israel-basher Norman Finkelstein14 and used to illustrate an article he wrote calling for my assassination.15 It was a full-color cartoon by a South American neo-Nazi Holocaust denier 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.16 Since I am clearly a public figure, and since this was plainly a parody, it was protected speech under the First Amendment. Sometimes being a First Amendment lawyer requires thick skin.
Taking the Stand Page 23
