5 Erwin Chemerinsky, “Criminal Charges Against Hecklers Go Too Far,” Orange County Register, February 8, 2011.
6 Available online at http://www.youtube.com/watch?v=7w96UR79TBw.
7 “In Defense of UCI Muslim Student Union,” open letter to O.C. district attorney Tony Rackauckas from the Council on American-Islamic Relations, Greater Los Angeles Area, available at http://www.baitcal.com/UCIMuslimStudentUnion.html. The letter was also signed by Chuck Anderson, president of the ACLU chapter, Orange County, and Hector Villagra, the incoming executive director of the ACLU of Southern California.
8 Ibid.
9 For a more detailed discussion, see my letter to the editor, “Lawyer Alan Dershowitz Decries ACLU Support of UCI Muslim Students,” Orange County Register, May 12, 2011.
10 Erwin Chemerinsky, “Criminal Charges Against Hecklers Go Too Far,” Orange County Register, February 8, 2011.
11 Hamed Aleaziz, “Should Heckling Be Illegal?” Mother Jones, September 26, 2011, available at http://www.motherjones.com/mojo/2011/09/should-heckling-be-illegal.
12 Had the school administered appropriate discipline, I could understand an argument against piling on with a misdemeanor prosecution, but “the red badge of courage”—the minor discipline—given to them by the college only served to encourage repetition of their censorial conduct.
13 Vik Jolly and Larry Welborn, “UC Muslim Students Get Probation, Fines,” Orange County Register, September 23, 2011.
14 Alan M. Dershowitz, “ ‘Irvine 10’ Conviction Constitutionally Sound,” Orange County Register, September 27, 2011.
Chapter 9
The Right to Falsify History and Science
1 StGB§ 130 Public Incitement (1985, Revised 1992, 2002, 2005). (“(4) Whoever publicly or in a meeting disturbs the public peace in a manner that assaults the human dignity of the victims by approving of, denying or rendering harmless the violent and arbitrary National Socialist rule shall be punished with imprisonment for not more than three years or a fine.”)
2 National Socialism Prohibition Law (1947, amendments of 1992). (“§ 3g. He who operates in a manner characterized other than that in § § 3a–3f will be punished (revitalizing of the NSDAP or identification with), with imprisonment from one to up to ten years, and in cases of particularly dangerous suspects or activity, be punished with up to twenty years imprisonment. § 3h. As an amendment to § 3 g., whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media.”)
3 Law No 90-615 of July 13, 1990, Journal Officiel de la République Française [J.O.] [Official Gazette of France]. (“… to repress acts of racism, anti-semitism and xenophobia (1990) Art 9. (’Art. 24 (a): those who have disputed the existence of one or more crimes against humanity such as they are defined by Article 6 of the statute of the international tribunal military annexed in the agreement of London of August 8, 1945 and which were a carried out either by the members of an organization declared criminal pursuant to Article 9 of the aforementioned statute, or by a person found guilty such crimes by a French or international jurisdiction shall be punished by one month to one years imprisonment or a fine.”)
4 Turkish Penal Code, Article 301, which makes it a crime “to publicly denigrate Turkishness.” In January 2012, France enacted a law that makes it a crime to deny the Armenian genocide.
5 For examples of Faurisson’s stances, see Robert Faurisson, “The Leaders of the Arab States Should Quit Their Silence on the Importance of the Holocaust,” Institute for Historical Review Beirut Conference, March 22, 2001, accessible at http://www.ihr.org/conference/beirutconf/010331faurisson.html; and Robert Faurisson, “The Diary of Anne Frank: Is it Genuine?” Journal of Historical Review 19, no. 6, http://www.ihr.org/jhr/v19/v19n6p-2_Faurisson.html.
6 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 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 (1) 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”; and (3) that “among the condemned were three women who had come in a convoy since the women were shot and not gassed.”
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].
This type of pseudo-history 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.”
7 Robert Faurisson, Mémoire en Défense (1980), préface de Noam Chomsky.
8 Scot Lehigh, “Men of Letters,” Boston Phoenix, June 16–22, 1989, 30.
9 Alan M. Dershowitz, “Chomsky Defends Vicious Lie as Free Speech,” Boston Globe, June 13, 1989.
10 Today Show with Katie Couric, NBC Universal, February 10, 1999.
11 In re Hale, Comm. of Character & Fitness (Ill. App. Ct. 1998) reprinted in Geoffrey C. Hazard et al., The Law and Ethics of Lawyering 875 (1999).
12 Jodi Wilgoren, “40-Year Term for Supremacist in Plot on Judge,” New York Times, April 7, 2005.
13 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. (International Human Rights Conference, Panel IV: “Words That Maim—Freedom of Expression, Freedom from Expression,” McGill University, Montreal, November 3–4, 1987.)
My remarks can be found in Nuremberg Forty Years Later: The Struggle Against Injustice in Our Times (Erwin Cutler, ed.) 131 (1995).
In response, a prominent Canadian 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.
14 Alan Dershowitz, The Case for Peace 29 (2005).
15 Even university professors seem to misunderstand this important distinction. I encountered this intellectual muddleheadedness 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. 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.” (May 12, 2010. The full text of the speech is available at http://www.haaretz.com/full-text-of-alan-dershowitz-s-tel-aviv-speech-1.289841).
16 John E. Mack, Abduction: Human Encounters with Aliens (1994).
17 Ibid. at 417.
18 Alan M. Dershowitz, “Defining Academic Freedom,” Harvard Crimson, June 30, 1995.
19 Ibid.
20 Christopher B. Daly, “Harvard Clears Abduction Researcher John Mack,” Washington Post, August 4, 1995, 1.
Chapter 10
Defamation and Privacy
1 William Shakespeare, Othello, Act 3, Scene 3.
2 Although some scholars have advocated group libel laws. See, e.g., Dan Kahan, “A Communitarian Defense of Group Libel Laws,” 101 Harvard Law Review 682 (1988); Jeremy Waldron, The Harm in Hate Speech (2012).
3 In fact, a midlevel appeals court recently decided that it is no longer slander per se in New York to falsely say that someone is gay. The New York court overturned decades of previous cases, which were “based on a false premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual.” “Label of Gay Is No Longer Defamatory, Court Rules,” New York Times, May 31, 2012.
4 See Alan Dershowitz, Finding Jefferson 104 (2007).
5 New York Times v. Sullivan, 376 U.S. 254, 280 (1964).
6 Ibid. 298–99.
7 In a 1990 column, Mike Barnicle wrote that in 1983, I had said to him: “I love Asian women, don’t you? They’re … they’re so submissive.” Barnicle simply fabricated this quote, as well as the meeting during which the statement was allegedly made. Alan M. Dershowitz, “There Was No Discussion of Asian Women,” Boston Globe, December 13, 1990.
8 I discuss this story in Alan Dershowitz, Finding Jefferson 135 (2007).
9 Maurizio Molinarí, “È la Magna Charta del terrorismo,” La Stampa, January 27, 2005.
10 Ibid.
11 Hustler Magazine v. Falwell, 485 U.S. 46, 54–55 (1988).
12 Bowman v. Heller, 420 Mass. 517, 520 (1995).
13 Ibid. 525.
14 When my book The Case for Israel hit the New York Times bestseller list, Noam Chomsky asked Finkelstein to savage it. Finkelstein then accused me of plagiarism for quoting a frequently used paragraph by Mark Twain and citing it to Twain, rather than to the secondary source in which he erroneously claimed I had originally found it. His charge was preposterous on its face and so found after I asked Harvard to investigate it. I recount this episode in The Case for Peace, chapter 16 (2005). Shortly after Finkelstein falsely accused me of plagiarism, he came up for tenure at DePaul University, and the former chairman of his department invited me to catalogue “the most egregious instances of [his] dishonesty.” I did so. I also wrote an op-ed for the Wall Street Journal (Alan M. Dershowitz, “Finkelstein’s Bigotry,” Wall Street Journal, May 4, 2007). He was denied tenure.
15 Norman Finkelstein, “Should Alan Dershowitz Target Himself for Assassination?” Counterpunch, August 12–14, 2006.
16 The cartoon is still widely available on the Internet, for instance on the flickr-website of the cartoon “artist.” http://www.flickr.com/photos/96755483@N00/222216939/.
17 Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” 4 Harvard Law Review 193 (1890).
18 Ibid. 193.
19 Shields by Shields v. Gross, 563 F. Supp. 1253, 1256–1257 (S.D.N.Y. 1983).
20 Florida Star v. B.J. F., 491 U.S. 524 (1989).
Chapter 11
Speech That “Supports” Terrorist Groups
1 18 U. S. C. §2339B.
2 My talk continued:
Fulfillment of contractual obligation was deemed so important by the framers of our Constitution that they prohibited the states from “impairing the obligation of contracts,” and required the government to satisfy all debts “contracted and engagements entered into” even before our Constitution. These provisions were referring to contracts involving money and property. How much more sacred is a contract involving life. Our Constitution places life before property in ordering our rights.
Our Constitution empowers Congress “to make all laws which shall be necessary and proper for carrying into execution” the power vested in the government or its officers. You have the power to make our go
vernment keep its promise—satisfy its contractual obligations—to the residents.
The President must enforce the laws and obligations of the United States.
And the judiciary is the ultimate guarantor that the government complies with the due process of law and other constitutional provisions.
As you may know, there is now a case pending before the courts of this district mandamusing the government, particularly the secretary of state, to delist the organization with which the residents of Ashraf are associated.
I have the high honor of representing a group of distinguished Americans who have asked me to file a friend of the court brief supporting delisting. This group includes the former attorney general of the United States, the former head of the FBI, the former secretary of Homeland Security, and numerous generals, admirals, and others who have not only served our country with distinction, but at the risk of their lives.
We place our sacred honor at risk by supporting this humanitarian cause—the saving of innocent lives, and the obligation of our government to keep its commitments. But we have little choice because we love our country, we love liberty (not Camp Liberty but real liberty), and we believe that promises made by our government must be kept.
As a constitutional lawyer, I am confident that we are on the right side of this lawsuit, even though some of my dear friends are on the other side. We hope and expect that the courts will demand that our government provide due process and apply the law, which demand quick action in responding to a petition to delist.
As soon as delisting occurs, the free nations of the world—which do not include Iran or, tragically, Iraq, which is now under the sway of Iran—will be willing to accept the residents of Ashraf as refugees. (Alan Dershowitz, Washington, D.C., April 6, 2012)
“Senate Briefing: Iran’s Nuclear Threat: Impact of Sanctions & Policy Options,” May 15, 2012, 10–12, available at http://www.iaca-mo.org/senate.pdf.
Taking the Stand Page 64
