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.  

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 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 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…learned 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' 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.”
“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, 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.  



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.” 20  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 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, 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 750th 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 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 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 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 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 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 “meturnished.”  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.  

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. 

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 Your 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   

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.  

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:  internet 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 21st Century.  

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.  



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

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 Amendment 25 —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, internet 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 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 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 no 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 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 any 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 14th 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.  

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.)

Several general categories of speech that may result in harms purport to flow from the “shouting fire” paradigm.  They include the following:

       1.  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, 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 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.  29   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.


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.”
1
2
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 Jerry 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 Larry 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.” 30 


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 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.”

1
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. 




Chapter 6  Offensiveness- Pornography:  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 cry, 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 citizens 32  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 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 





                    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 adu