18 Ibid. 776.
19 Jay Katz, Joseph Goldstein, and Alan M. Dershowitz, Psychoanalysis, Psychiatry, and the Law (1967).
20 Ibid. 771 (quoting Wigmore on Evidence 173 [1940]).
21 Ibid. 772 (quoting Sigmund Freud, “Psychoanalysis and the Ascertaining of Truth in Courts of Law” [1906]), in Collected Papers (1959), vol. 2, p. 13.
22 Ibid. 772 n.10. Centuries earlier, the Jewish scholar Maimonides had provided an even more nuanced psychological insight. “The Sanhedrin … is not empowered to inflict the penalty of death or of flagellation on the admission of the accused. For it is possible that he was confused in mind when he made the confession. Perhaps he was one of those who are in misery, bitter in soul, who long for death, thrust the sword in their bellies, or cast themselves down from the roofs. Perhaps this was the reason that prompted him to confess to a crime he had not committed, in order that he might be put to death.” Maimonides, The Book of Judges 53 (1949).
23 Ibid. 775.
24 See Alan M. Dershowitz, Reasonable Doubts 58 (1997); Alan M. Dershowitz, The Best Defense 51 (1983).
25 Mapp v. Ohio, 367 U.S. 643 (1961).
26 Alan M. Dershowitz, The Best Defense xxi–xxii (1983).
27 Alan Dershowitz, “A Judicial Hero Retires,” Gainesville Sun, May 31, 1985.
28 A popular column in the New York Post, The Lyons Den, made my family heroes in the Jewish community by reporting that Justice Goldberg and I
met when Dershowitz came to be interviewed for the coveted job of law clerk to Goldberg, then on the Supreme Court. All went well, and Dershowitz said he felt compelled to add one vital fact, that he’s Orthodox.
This meant he couldn’t work on Saturdays, not even answer a phone. Goldberg had him meet the young man who’d be the other law clerk, Lee McTiernan. The Justice told them: “Lee can work on Saturdays, Alan on Sundays, giving me a functioning staff seven days a week.” (Leonard Lyons, The Lyons Den, New York Post, September 5, 1969, p. 47.)
29 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
30 See, e.g., David Stebenne, Arthur Goldberg: New Deal Liberal 277, 354 (1996).
31 Quoted in Potter Stewart, Reflections on the Supreme Court, Litigation 8, 9 (1981–1982).
32 See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 57 (2008).
33 Alexander M. Bickel, The Least Dangerous Branch 111 (1986, 2d ed.)
34 S.C. Res. 242, U.N. SCOR, 22d Sess., 1382d mtg. at 8, U.N. Doc. S/INF/22/Rev.2 (1967).
35 The French movie Les Amants (The Lovers) was the matter of dispute in Jacobellis v. Ohio, 378 U.S. 184 (1964).
36 John Cleland, The Life and Adventures of Miss Fanny Hill (1748). The Supreme Court discussed the redeeming social value of this book a few years later in Memoirs v. Massachusetts, 383 U.S. 413 (1966).
37 For a detailed account, see Laura Kalman, Abe Fortas: A Biography 322 (1990).
38 Cert. granted on January 7, 1963, 371 U.S. 946 (1963).
39 Hats are still not permitted in the courtroom. Supreme Court of the United States, Guide for Counsel in Cases to Be Argued Before the United States Supreme Court, October Term 2011 19, available at http://www.supremecourt.gov/oral_arguments/guideforcounsel.pdf.
40 Numbers 5:18. For a discussion of the Talmudic codification of this rule, see Rabbi Mayer Schiller, “The Obligation of Married Women to Cover Their Hair” 30 Journal of Halacha 81 (1995).
41 Today, the Supreme Court will not hear any oral arguments on Yom Kippur, even if it coincides with the first Monday of October, the legally mandated beginning of the new term. For a history of this recent tradition, see Tony Mauro, “Glasnost at the Supreme Court,” in A Year at the Supreme Court (Neil Devins and Davison M. Douglas, eds.) 204–5 (2004).
42 This principle is known in Jewish law as Pikuach nefesh. See Alan M. Dershowitz, The Genesis of Justice ii (2000).
43 See, e.g., Paul C. Bartholomew, “The Supreme Court of the United States, 1963–1964,” 17 Western Political Quarterly 595 (December 1964) (“With a consistency that seems to know no bounds, the Supreme Court during the recent term continued the history-making course it has been following for some time. Seldom has the Court caused as much controversy as in recent years, and perhaps never have the matters in controversy covered such a broad field of legal issues.”); Philip B. Kurland, “The Supreme Court, 1963 Term,” 78 Harvard Law Review 143, 160 (1964) (“In his sophomore year on the Court he [Goldberg] gave ample evidence that he would run second to none in effectuating reforms in our body politic”).
44 Escobedo v. Illinois, 378 U.S. 478 (1964).
45 Miranda v. Arizona, 384 U.S. 436 (1966).
46 Escobedo v. Illinois 490.
47 See Alan Dershowitz, “Visibility, Accountability and Discourse as Essential to Democracy,” 71 Albany Law Review 731 (2008).
48 This story has been corroborated by Goldberg’s biographer. David Stebenne, Arthur J. Goldberg: New Deal Liberal 108.
49 That was later confirmed by the CBS News producer Fred Friendly. When he asked President Eisenhower whether appointing Warren was one of the mistakes he had made during his tenure, Eisenhower reportedly put up two fingers and said, “Two. They’re both sitting on the Supreme Court: Earl Warren and William Brennan. Brennan is just as bad. Those two were very important jobs and I didn’t do a good job with them.” Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion 139.
Chapter 4
Beginning My Life as an Academic
1 Thomas S. Johnson, “The Psyche and the Law: The Twain Do Meet,” Harvard Law Record, October 22, 1964, 3.
2 In addition to first-year students, there were graduate students, Neiman Fellows, and other auditors.
3 Joseph Goldstein, Alan M. Dershowitz, and Richard D. Schwartz, Criminal Law: Theory and Process (1974).
4 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, 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.
5 Annie Hall (United Artists 1977) in Woody Allen, Four Films of Woody Allen 16 (2003).
6 For a picture of the lithograph, see Alan Dershowitz, Finding Jefferson 10 (2007).
7 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 right, calling me the “Profresser” (in Yiddish, fresser means “overeater”).
8 Thomas S. Johnson, “The Psyche and the Law: The Twain Do Meet,” Harvard Law Record, October 22, 1964, 3–4.
9 Ibid. 3.
10 Ibid.
11 Ibid.
12 Ibid. 4.
13 Arthur Auslander, “Course Termed ‘Unreal,’ ” Harvard Law Record, November 5, 1964, 16.
14 Arthur J. Goldberg, “Dershowitz Defended,” Harvard Law Record, November 19, 1964, 15.
15 Victor S. Navasky, “The Yales vs. The Harvards,” New York Times Magazine, September 11, 1966.
16 Malcolm X: Speeches at Harvard (Archie Epps, ed.) (1968).
17 See infra at pp. 195–197, 296–302.
18 Women were first admitted in 1950, as members of the class of 1953. See Paul Massari, “HLS Fetes 50 Years of Women Graduates,” Harvard Gazette, May 8, 2003.
19 Alan M. Dershowitz, “Psychiatry and the Law: A Knife That Cuts Both Wa
ys,” 51 Judicature 370 (1968).
20 Thomas Paine, Dissertation on the First Principles of Government (1795).
21 Among my early articles on prevention were the following: “Psychiatry and the Legal Process: A Knife That Cuts Both Ways,” 51 Judicature 370 (1968); “The Law of Dangerousness,” 23 Journal of Legal Education (1970); “Pretrial Preventive Detention, Legal Thought in the United States of America Under Contemporary Pressures: Reports,” for Am. Assn. for the Comp. Study of L (1970); “The Law of Dangerousness: Some Fictions About Predictions,” 23 Journal of Legal Education 24 (1971); “Imprisonment by Judicial Hunch,” ABAJ (1970); “Preventive Detention of Citizens During a National Emergency: A Comparison Between Israel and the United States,” 1 Israel Yearbook of Human Rights 295 (1971); “Preventive Disbarment: The Numbers Are Against It,” American Bar Association Journal, August 1972 815; “The Role of Law During Times of Crisis,” Civil Disorder and Violence (1972); “Could It Happen Here? Civil Liberties in a National Emergency,” in The Seventies (Howe, ed.) (1972); “Abolishing the Insanity Defense: The Most Significant Feature of the Administration’s Proposed Criminal Code—An Essay,” Criminal Law Bulletin, January 1973, 434; “Constitutional Dimensions of Civil Commitment,” 6 Drug Use in America: Problem in Perspective, Appendix (1973) (technical papers on the Second Report of the National Commission on Marijuana and Drug Abuse); “Preventive Confinement: A Suggested Framework for Constitutional Analysis,” 51 Texas Law Review 1277 (1973); “Towards a Jurisprudence of Harm Prevention,” in XV The Limits of Law, Nomos 135 (1974); “Dangerous as a Criterion for Confinement,” Bulletin of the American Academy of Psychiatry and the Law, September 1974; “Indeterminate Sentencing as a Mechanism of Preventive Confinement,” Report to the Ninth Congress of the International Academy of Comparative Law (1974); “The Origins of Preventive Confinement in Anglo-American Law,” 43 University of Cincinnati Law Review (1974) (parts I and II); “Indeterminate Confinement: Letting the Therapy Fit the Crime,” 123 University of Pennsylvania Law Review (1975); “Karyotype, Predictability and Culpability,” Genetics and Law 63 (1976); “Criminal Sentencing in the United States: An Historical and Conceptual Overview,” Annals, American Academy of Political and Social Science, January 1976, 117. For a complete list of my scholarly publications, see “Symposium: Conference Honoring the Scholarship and Work of Alan M. Dershowitz,” Albany Law Review 788–94, vol. 71, no. 3 (2008). (Hereinafter, “Symposium.”)
22 In 1960, 1,887,000 residents of the United States were classified as inmates of institutions. Of these, only 346,000 were incarcerated in correctional institutions, while fully 630,000 resided in mental hospitals. U.S. Bureau of the Census, Statistical Abstract of the United States: 1971, Table 52 (1971) 41.
23 Alan Dershowitz, “The Origins of Preventive Confinement in Anglo-American Law—Part I: The English Experience,” 43 University of Cincinnati Law Review 1 (1974); Alan Dershowitz, “The Origins of Preventive Confinement in Anglo-American Law—Part II: The American Experience,” 43 University of Cincinnati Law Review 781 (1974).
24 Ibid. 59.
25 Ibid.
26 Ibid. In recent years, thousands of alleged sexual recidivists have been held in a form of preventive detention following completion of their prison sentences. They are held until they can demonstrate they no longer pose a risk. This constitutes, in practice, indeterminate confinement based on questionable predictions. The Supreme Court upheld the constitutionality of these practices: see Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane 534 U.S. 407 (2002).
27 Ibid.
Part II
The Changing Sound of Freedom of Speech
Chapter 5
The Evolution of the First Amendment
1 Congress originally voted to submit twelve amendments to be ratified by the states. (I own an original copy of the Congressional Record containing the Bill of Rights as proposed by Congress.) 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. See, e.g., Akhil R. Amar, “The Bill of Rights as a Constitution,” 100 Yale Law Journal 1131, 1137 (1991).
2 Charlton Heston, “The Second Amendment: America’s First Freedom,” speech to the National Press Club, Washington, D.C., September 17, 1997, available at http://www.c-spanvideo.org/program/90857-1.
3 Quoted in Critical Essays on H. L. Mencken (Douglas C. Stenerson, ed.) 37 (1987).
4 See, e.g., Lauren A. E. Schuker, “Dershowitz Accused of Plagiarism,” September 29, 2003. For a rebuttal of these phony charges, see Alan Dershowitz, The Case for Peace 180–87 (2005).
5 Michele Steinberg, “Professor Francis Boyle: Israel Is Committing Genocide,” February 2, 2010, available at http://www.scoop.co.nz/stories/HL1002/S00026.htm. See also Alan Dershowitz, “The Brooklyn College BDS Debate and Me: The Critics’ Real Agenda,” Guardian, February 8, 2013.
6 For a full account, see Alan Dershowitz, Finding Jefferson 135 (2007).
7 For more on my views on the “marketplace of ideas” justification for freedom of speech, see Alan Dershowitz, Finding Jefferson 127 (2007).
8 Thomas Hobbes, Leviathan Book II (of Common Wealth) (1651), chapter 18.
9 See Alan Dershowitz, Rights from Wrongs 108 (2005).
10 The rarely invoked Tenth 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.” U.S. Constitution Amendment X. For a concise overview of the creation and ratification of the Constitution, see Erwin Chemerinsky, Constitutional Law: Principles and Policies 9 (2006).
11 Richard H. Fallon, Jr., The Dynamic Constitution 32 (2005).
12 Noah Feldman, Divided by God 31–32, 47 (2006).
13 See, e.g., Akhil R. Amar, “Did the Fourteenth Amendment Incorporate the Bill of Rights Against States?” 19 Harvard Journal of Law and Public Policy 443, 447 (1995–1996).
14 U.S. Constitution, Amendment XIV, section 1.
15 The Third Amendment is only incorporated in the Second Circuit, Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982). The Sixth Amendment’s right to a jury selected from residents of the state where the crime occurred, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s protections against excessive fines have all been held not to be incorporated by the Fourteenth Amendment. The Ninth Amendment has not been incorporated since it is not a separate source of individual rights. See Laurence H. Tribe, American Constitutional Law 776, n.14 (1998).
16 For a discussion on how the First Amendment has become applicable to the states through the Fourteenth Amendment, see Jerold H. Israel, “Selective Incorporation Revisited,” 71 Georgetown Law Journal 253, 305 (Dec. 1982).
17 403 U.S. 15 (1971).
18 Ibid. 27.
19 Bob Woodward and Scott Armstrong, The Brethren 156 (Simon & Schuster paperback 2005).
20 Ibid. 170
21 Ibid.
22 Theodore White, In Search of History: A Personal Adventure 119–20 (1978).
23 Miller v. California, 413 U.S. 15 (1973), affirming Roth v. United States, 354 U.S. 476 (1957).
24 Cohen v. California, 403 U.S. 15 (1971).
25 I wrote about originalism in Rights from Wrongs 224 and Is There a Right to Remain Silent? 129.
26 Schenck v. United States, 249 U. S. 47, 52 (1919).
27 An additional, quite controversial, mechanism involves the financing of political campaigns. See Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). Some critics argue that allowing unlimited corporate contributions to political campaigns drowns out the voices of those who cannot begin to match these contributions. See, e.g., “When Other Voices Are Drowned Out,” New York Times, March 25, 2012. Civil libertarians are divided over this issue. Compare Ronald Dworkin, “The Decision That Threatens Democracy,” New York Review of Books, May 13, 201
0, with Floyd Abrams, “Citizens United and Its Critics,” 120 Yale Law Journal Online 77 (2010), available at http://yalelawjournal.org/2010/9/29/abrams.html. I have not yet litigated cases in this area, though I have participated in several controversies growing out of it. After David Harris, the president of the National Jewish Democratic Council (NJDC), called on Jewish Democrats to sign a petition demanding that Mitt Romney stop taking campaign contributions from Sheldon Adelson on unfounded allegations that Adelson’s money was “tainted,” I yelled foul and wrote an op-ed in Adelson’s defense. Alan M. Dershowitz, “NJDC Doesn’t Speak for Me on Adelson,” Huffington Post, July 6, 2012. The NJDC subsequently removed the petition from its website. However, it would not apologize for deliberately spreading lies regarding Adelson’s business practices. Adelson brought a defamation lawsuit against the NJDC in the Southern District of New York, on which I have consulted. Nicholas Confessore, “Adelson Libel Lawsuit Seeks $60 Million,” New York Times, August 9, 2012.
28 Tom Stoppard, Rosencrantz and Guildenstern Are Dead 60 (1966).
29 Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech 213 (1987).
30 Thomas Healy, The Great Dissent 91, 97 (2013).
31 Schenck v. United States, 249 U.S. 47 (1919).
32 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-evident proposition that setting off an alarm bell is not free speech.
33 Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
34 See infra at pp. 184–187.
35 Lewis M. Steel, “Where Rocker’s Rights End,” New York Times, February 12, 2000.
36 See Alan M. Dershowitz, “Baseball’s Speech Police,” New York Times, February 2, 2000.
37 Smith v. Collin, 439 U.S. 916, 919 (1978) (J. Blackmun dissenting). 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 built 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.” Quoted in Alan M. Dershowitz, “Shouting ‘Fire!’ ” 263 Atlantic Monthly, January 1989.
Taking the Stand Page 62
