lt for merely possessing obscene material—in this case some old stag films—in the privacy of his home.  The ruling was a combination of 4th Amendment (the right of privacy in one’s home) and 1st Amendment principles and was somewhat unclear about its reach, because it went out of its way to reaffirm the holding in Roth that obscenity was not protected by the First Amendment.  

I decided to try to use the Stanley case as a battering ram against the very idea that government has the power to tell adults what films they could watch in a theater.  The mechanism I chose for this attack was to challenge the constitutionality of the Massachusetts obscenity statute under which the owner of an art theater located across the street from the famous Boston Symphony Hall was being prosecuted for showing I Am Curious Yellow.  

In those days, a challenge to the constitutionality of a state statute could be brought in front of a three judge district court with the right to appeal its ruling directly to the Supreme Court.  The criteria for bringing such a challenge, particularly if one were seeking an injunction against a state prosecution, were quite narrow.  Nevertheless, we decided to try it.  We asked the three judges to enjoin the Boston prosecutor, a man named Garrett Byrne, from prosecuting the theater owner.  

The three judges we drew were not a promising crew.  

When I learned that Judge Aldrich would preside over the panel selected to hear the I Am Curious Yellow case, I was concerned that he would remember the incident we had when I turned down his invitation to speak at his restricted club, and hold it against me.  I didn’t know the other two judges, both of whom were Italian American and Catholic.  One of them, Judge _____ Julian, had anglicanized his original Italian name, but his strict Catholic upbringing and world views became evident throughout the hearing.  The third judge, Raymond Pettine, was from Providence, Rhode Island and he surprised me with his apparent liberalism.  I argued the case for several hours over three separate days.  

I began by presenting my broad challenge to the power of the state to regulate the content of films shown in adult-only theaters:  

     If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.  Our constitutional heritage rebels at the thought of giving government the power to control mens’ minds.

I argued that the ruling in the Stanley case was analogous to what was occurring in our case:

     There is no distinction in law, in logic, in common sense between the individual [watching a film at home or] deciding to go to a movie theater [and] pay his $2.50 or $3.  

I could see skepticism in the faces of the judges—they did not seem to see any connection between the Stanley case and this one—as I continued with my argument: 

     I submit that it’s indistinguishable whether a person makes a private, individual decision to go to a movie theater and there to satisfy his intellectual and emotional needs in the company exclusively of voluntary people, people who have sought out and decided to see this film (with the possible exception of a few policemen and officials who see this film because of business reasons and who may indeed be offended by what they see, but with respect, it’s part of their job.)

I acknowledged that “the Supreme Court ruled only on [home] possession in the Stanley case,” but I argued that there was no real difference between possession and exhibition:  

     Surely Stanley could not have been prosecuted under Justice Marshall’s decision if he were caught putting the film in the 8mm projector and showing the film to himself or his friends in the privacy of his basement.  

Judge Aldrich immediately expressed skepticism about the reach of my argument, suggesting that the Stanley decision wasn’t relevant to a movie theater.  He told me about his grandmother who “once went to a movie entitled Sur Les Troits de Paris.  She thought it was a travelogue.  She didn’t after she got there of course…I heard about it.”  I assured him that we had dealt with that problem by providing a “prologue” that advises the audience who are admitted only before the film begins what they are about to see:

     “the story of a young girl who is trying to work out her relationships.  There are a number of scenes which show the young girl and her lover nude.  Several scenes depict sexual intercourse under various circumstances, some of them quite unusual.  If you believe that you would be offended or embarrassed by the showing of such scenes, you are invited at this time to obtain a refund of your admission at the box office.”

As Judge Aldrich continued to press me about his grandmother’s sensibilities, I was reminded of the old Jewish joke about the man with the broken watch who goes into a storefront window and asks the man behind the counter to fix his watch.  “I don’t fix watches.  I perform circumcisions,” the man replied.  “Then why do you have clocks and watches in your window,” the customer wondered.  “What do you think I should put in my window?” the store owner responded.

I had that joke in my head when I offered the following argument to Judge Aldrich:  

     If a store were to open in Boston which was simply marked “Pornography Shop,” it had nothing in the window, it had no advertising, it was a place where people like Stanley could come and quietly and discreetly purchase their 8mm films, [I submit] that Stanley vs. Georgia would proscribe prosecution of that seller.  I submit that necessarily if there is this right to exercise one’s freedom to read and see a film, there is necessarily the concomitant right to purchase it. But the state has a great interest in making sure that the purchasing is not done in a way that intrudes on sensibilities or intrudes on other legitimate interests.

The judges pressed me on whether obscene films, even when viewed in a restricted theater, could cause viewers to go out and commit crimes such as rape.  I responded that if that were true, it would be just as likely—perhaps even more so—that a person watching such films alone in his basement would be influenced in that manner.  I argued that Stanley had implicitly rejected that theory.  

The questioning persisted, with Judge Julian wondering whether Judge Aldrich’s aunt was typical:

     As a matter of common sense though, unless we are to be so gullible as to be incredibly gullible, don’t the great vast majority of the people who go to a theater to see a film like this know what they’re going to see?  

     MR. DERSHOWITZ:  Precisely.

     JUDGE JULIAN:  So this prologue is a lot of nonsense, just a gesture to try to wipe out-----

     JUDGE ALDRICH:  He’s looking after my grandmother who went to see Sur Les Toits De Paris.  

     MR. DERSHOWITZ:  The only valid basis for punishing obscenity …is to protect people [like Judge Aldrich’s grandmother] from being offended, from having something thrust on them in an unwilling manner and also to protect youngsters.

When I then advised the court that under my theory, the judges would not have to view the film.   Judge Aldrich immediately interjected:  “Are you trying to bribe us to decide the case so we don’t have to see the film?...I will admit that’s the best bribe I have ever been offered.”


Judge Julian did not seem to understand my argument.  He kept asking me whether I wanted the court to assume that I Am Curious Yellow was not “pornographic.”

I tried to explain:

     “It’s exactly the opposite.  We do not ask you to decide whether or not the film is pornographic.  We are asking you to decide that the film shown in a nonobtrusive way, advertised in the way that it’s been advertised right from the beginning, with no hint, no suggestion of obscenity or prurience, played, if you wish, with the warning being given, although there have been no complaints by a single viewer of the film that he’s been offended—because your Honor is of course right:  everybody knows what they’re going to see—exhibited in that manner, the film is protected by the First Amendment without regard to its contents.”  

Judge Julian then questioned me about whether this case was really about money, rather than freedom of speech, because Grove Press was a commercial distributor of films for profit:  



          JUDGE JULIAN.    These people are exhibiting this film for the box office receipts, are they not as a fact?
          Mr. DERSHOWITZ.  The New York Times is selling its papers for the box office receipts as well.
          JUDGE JULIAN.  Let’s talk about this film not the New York Times.  Isn’t this film being exhibited for the primary purpose and perhaps…for the only purpose of getting money at the box office? Isn’t that the actual fact?
          Mr. DERSHOWITZ.  Your Honors, that fact is utterly irrelevant, I would submit.
          JUDGE JULIAN.  But is it the fact though?
          Mr. DERSHOWITZ.  I don’t know.  I can’t probe Mr. Rosset’s mind, who is the president of Grove Press…I think he probably has very mixed motives.  
                              …
          JUDGE JULIAN.   That’s what troubled me immensely, to see the First Amendment used for the sole and obvious purpose of making a profit and for no other purpose.
          Mr. DERSHOWITZ.  Well, I would submit that most politicians that get up and make political speeches are doing it for a motive which is not unrelated to that.  Yet we don’t probe the motives of Presidents and Vice-presidents and Senators in speaking.  Nor should we probe the motives of newspaper publishers and film producers. 

          JUDGE JULIAN.   Perhaps they should be probed.

          Mr. DERSHOWITZ.  I think the First Amendment would be virtually a dead letter; [if] we would only permit people to speak who spoke simply for art for art’s sake or politics for politics’ sake…
          Here we’re talking about something where money is being paid in order to show the film and nobody can suggest that the film should be shown in this country for free or at cost.  There would simply be no films being manufactured in this country and that aspect of the First Amendment will have substantially suffered.

I then returned to my distinction between an enclosed theater and an open display.

          If Grove Press were to put up a billboard…above a large area where people congregate and there were to be an alleged obscene picture on the billboard, and the state were to try to enjoin that, I would have to [concede that there might be some harm to people who didn’t want to be exposed to obscenity.]

     JUDGE JULIAN.   That’s a very generous concession.

          Mr. DERSHOWIZ.  But in this case I do submit nobody is being exposed to anything that he doesn’t want to be exposed to at all.  The only thing that people are being exposed to is the fact that they know that a film is being played in Boston or in Springfield, and that fact, if it offends people, is not entitled to constitutional protection so long as they can avoid being exposed directly to the contents of the film.

Judge Aldrich was intrigued by this last point and said that he wished to pursue it further.  I knew I was in for some tough questioning:
          JUDGE ALDRICH.  I wish to pursue that point.  I happen to be very straight laced.  Every time I walk down through Harvard Square and I see there is a movie going on there that I know is obscene, of course, I don’t have to go in.  I can protect myself.  But I’m offended by the fact that I see all these students who are age 21 and a half going in and that we are maintaining in my home town, in which I have such great pride, we are maintaining this house—I use the word “house” advisedly—filthy pictures are being shown.  Do I have any interests or rights?

     Judge Aldrich had put his finger directly on the vicarious offensiveness rationale for censorship.  I needed to come up with an answer that didn’t devalue his concerns (and his grandmother’s).  

          Mr. DERSHOWITZ.  It seems to me you have an interest but no right…I can understand how you would be offended by that.  But one of the prices of living in a complex society, with freedom, is for you to have to simply tolerate the fact that you know that certain people are engaging in conduct that you don’t approve of.  That was precisely the argument made by the State of Connecticut in the birth control [clinic] case. 35   They said that people of the State of Connecticut are offended by knowing that this kind of immoral conduct is being engaged in by people, married people, all over the State.  And the Supreme Court did say that this is something that members of the society must tolerate in a pluralistic society.  There are a great many things which offend me, to know that they’re going on in peoples’ homes—I have an interest in that, but I don’t think I have a protected constitutional right [to be] disturbed about what’s going on.

Judge Julian asked whether “that interest [should] be legally protected?”

Mr. DERSHOWITZ.   Now, there may be ways of protecting it, perhaps through zoning regulations…  

     But if the issue is total banning on the one hand as against your interests being protected against knowing people are doing this kind of thing, I would submit that the Constitution has a clear answer to that.  It must permit the film to be shown in a way to minimize your exposure to it and to permit you both fully to see and to avoid being exposed to the contents of the film.
     So I do submit that your Honor does have an interest and I can understand it.  But I think you will realize that on balance this interest could be used to upset almost every kind of freedom that Americans ought to be at liberty to engage in.”

Judge Aldrich seemed intrigued by our argument, while continuing to press me hard on its implications.  At one point Judge Aldrich asked me what I would do if the Supreme Court ruled against my theory.  “Will that be the end of the road…?”

I responded:  “Well, I, as an attorney, will continue to urge the Court to accept this principle because I think it’s the correct approach to the regulation of obscenity.”

Following three days of intensive argument and questioning, the three judges issued a decision written by Judge Aldrich.  He bought my argument totally.  He began by accepting my assumption about the nature of the film:  

     For purposes of this case we assume that the film is obscene by standards currently applied by the Massachusetts courts.  

He then went on to discuss the implications of the Stanley decision, which the prosecutor had argued was “irrelevant” to this case and which, at the beginning of my argument, thought was not relevant to movie theaters:

     In Stanley [the] Court held that in certain circumstances possession of a moving picture film is constitutionally protected even though by contemporary standards the film is obscene.  We do not consider this irrelevant.

The Court then went on to consider the state’s argument that an obscene film, even viewed in a restricted theater, can induce the viewer to commit rape.

     The question is, how far does Stanley go.  Is the decision to be limited to the precise problem of “mere private possession of obscene material,” is it the high water mark of a past flood, or is it the precursor of a new one?  Defendant points to the fact that the court in Stanley stated that Roth v. United States, was “not impaired by today’s holding, and in the course of its opinion recognized the state’s interest there upheld in prohibiting public distribution of obscenity.  Yet, with due respect, Roth cannot remain intact, for the Court there had announced that “obscenity is not within the area of constitutionally protected speech or press,” whereas it held that Stanley’s interest was protected by the First Amendment, and that the fact that the film was “devoid of any ideological content” was irrelevant.  

     Of necessity the Stanley court held that obscenity presented no clear and present danger to the adult viewer, or to the public as a result of his exposure.  Obscenity may be offensive; it is not per se harmful.  Had the Court considered obscenity harmful as such, the fact that the defendant possessed it privately in his home would have been of no consequence.

The Court then rendered its conclusion:

     We confess that no oracle speaks to Karalexis unambiguously.  Nonetheless, we think it probable that Roth remains intact only with respect to public distribution in the full sense, and that restricted distribution, adequately controlled, is no longer to be condemned.  

                         …

     If a rich Stanley can view a film, or read a book, in his home, a poorer Stanley should be free to visit a protected theater or library.  We see no reason for saying he must go alone.  


It was the first time in history that a court—any court—had ruled that the government had no power to ban or prosecute an “obscene” film that was shown to the public in a theater.  I had achieved a total victory not only for my client, but for my novel approach to offensiveness under the First Amendment.  It was a heck of a way to begin my career as a lawyer.  The victory would, however, be short lived, at least in theory, if not in practice.

Not surprisingly, the District Attorney appealed our victory to the Supreme Court, which accepted the case.  I was asked to argue for Grove Press.  And so, at the age of 31, I argued my first case before the High Court.  

I had prepared extensively for my oral argument.  I expected to be questioned aggressively by the recently appointed Chief Justice Warren Burger, who I had known when I clerked for Judge Bazelon.  Burger and Bazelon were arch enemies, both ideologically and personally.  Burger knew I was close to Bazelon, and so I expected some tension, but I could not anticipate what awaited me.  I had hardly reached the lectern to begin my argument, when Chief Justice Warren Burger asked if he could “interrupt” to inquire whether I thought a state had the power to prohibit a “bear-baiting contest.”  I didn’t know exactly what a bear-baiting contest was, but I guessed that it must involve considerable cruelty to bears.  I responded that the act of bear-baiting was not protected by the Constitution, since the states have the power to protect animals from suffering.

I tried to get the argument back on the film in question:  “I think the example would be better if it were a film of bear-baiting.”  But the Chief Justice interrupted me once again:  “Let’s stay on the live.”  I drew a distinction between an act that harmed another creature and a film of consensual lovemaking that did not intrude upon the sensibilities of those who chose to view it.  The Chief Justice shot back:

     [Y]our are saying that it’s all right to kill one bear and five dogs in the filming process, but it isn’t right to kill many more of them in live showings, is that a distinction….

I had no idea what he was getting at with his scripted questions, so I tried again:

     No I would say a state would have the right to prohibit the actual killing of dogs and bears whether for film or other purposes.

The Chief Justice persisted in his obsession with bears!

     Let’s say 14 states didn’t have any statutes against bear-baiting, and 4.5 million had watched bear baiting or the filming of bear baiting.  Would that have the slightest relevance in your judgment on whether the showing of bear baiting in Boston, Massachusetts, could or could not be stopped…?

I tried to direct my answer away from bear-baiting and to the issue of whether the Constitution permitted a consenting adult to view an obscene film in the privacy of a restricted movie theater:

     No, the First Amendment protects the individual’s right to receive information necessary to satisfy his emotional and intellectual needs.  The thrust of our [position would take prosecutors] from [inside] the theater—that is only attended by people who want to go—and would put them outside the theater to protect you and me from the intrusion on our sensibilities that would occur if movies…thrust advertisements or pictures on unwilling viewers.

But the Chief Justice would still not be diverted from his bears.  Though I had never mentioned a bear in my answer, he challenged me:

     Are you suggesting that it is a universal rule that everybody is offended by bear-baiting, for example?

That, of course, was precisely my point:  those who were not offended should be free to watch a film in which no one was hurt.

Finally, the Chief Justice asked me about theaters:

     [H]ow about moving the bear-baiting into a theater and charging $5 admission for it?  I don’t want to overwork you on the bear-baiting, but in order to have a film of bear-baiting, you’ve got to go through unlawful process in the first instance.

With less than a minute before my time had expired, the Chief Justice asked whether I thought the analogy to the bear-baiting contest was “valid.”  I politely told him what I thought:

     I think the analogy of bear-baiting is not valid [because it] is an illegal act which hurts animals.  It is different from [lovemaking] presented on a screen to a public which has chosen to view it.

By this point my time was nearly up.  I quickly summarized my argument that under a functional definition of privacy

     A theater with its curtains drawn deserves [at least as much constitutional protection as] a home with its shades drawn up.

The Chief Justice had monopolized the entire argument with his bear-baiting analogy.  He 9or his law clerks0 had apparently prepared a series of questions for me about bear baiting and Burger had simply gone down the list ignoring my answers.  The other eight justices were unable to ask questions, though several of them seemed anxious to probe certain points.  Some of them seemed embarrassed by their Chief’s performance.  By the end of the argument, I finally understood what a bear-baiting contest must feel like—at least to the bear.  It was not only the dumbest series of questions I have ever been asked during an oral argument—with at the possible exception of those put to me by a senile judge about the facts of the next case scheduled for argument.  It was probably the stupidest conversation I’ve ever had with anyone about the First Amendment.  But no one ever said that intelligence was a criterion for being a judge, or even a Chief Justice.  What mattered to Warren Burger was that he looked like what a Chief Justice is supposed to look like!  

A few months later the Supreme Court rendered a 5 to 3 decision in the I Am Curious Yellow case that did not reach the broad issue decided by the district court (nor did it mention bear-baiting); instead, it decided the case on a narrow procedural ground.  We eventually settled the case to the advantage of the defendants.  The film was shown throughout the country and no one went to prison.  Judge Aldrich’s opinion, suggesting that all censorship of the content of movies exhibited to adults in discreet settings was unconstitutional, remained the only court decision on that issue until June of 1973, when the Supreme Court changed the definition of obscenity in a case called Miller v. California and a series of companion decisions.

In these cases Chief Justice Burger, writing for the majority, expressly and emphatically rejected the approach I had argued in the I Am Curious Yellow case.  

     We categorically disapprove the theory…that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only…The States have a long-recognized legitimate interest in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.  

But as I promised Judge Aldrich, I continued to press my principle in the court of public opinion and in a series of other obscenity cases over the next several decades.  Ultimately my view would prevail, if not in law then certainly in practice, as we shall see.  Chief Justice Burger may have won in the courthouse, but we won in theaters and on television sets throughout the nation, as sexually explicit films—far more explicit than I Am Curious Yellow—became pervasive and “legal” in fact if not in law.  This disparity between the law, as set down in theory by the Supreme Court, and the law, as implemented in practice throughout the country, is an interesting story in itself.  




                    Deep Throat:  Why I Chose Not to Watch It

My initial victory in the I Am Curious Yellow case—getting a three judge court to declare unconstitutional all obscenity laws that applied to adults-only theaters—made me something of a hero in the “adult film” industry—and something of a pariah in the radical feminist community.  (More about the latter soon.)  Many “obscenity” clients came my way, including the musical play Hair which was “banned in Boston” and several “soft core” films such as the very forgettable “Belinda” 36  and the unforgettable hard core film, Deep Throat. 37 

I’m told that Deep Throat is a very hard core and very bad movie.  I can’t personally attest to these claims because, to this day, I have not seen it. 38   I avoided seeing the film not because I’m a prude—I enjoy a good erotic movie as much as the next guy—but rather because I wanted to make a point about the law of obscenity:  the decision to watch or not to watch a particular film should be a matter of choice for every adult citizen.  Just as I told the judges in the I Am Curious Yellow case that they didn’t have to view the film in order to rule that an adult had the constitutional right to view it in an adults-only theater, so too I had the right to argue that position without myself viewing Deep Throat.  To paraphrase my earlier case, I was “curious” about Deep Throat, but cared more about the principle of choice.  I also believed that my not viewing the film was a good tactic that helped to dramatize my point.  

I decided to use that tactic in two separate cases involving the Deep Throat case.  The first was the prosecution of porno-actor Harry Reems for his role as an actor in the film.  Reems was the first actor in history ever to be prosecuted for the crime of obscenity.  He was charged with participating in a nation-wide conspiracy to transport an obscene film in interstate commerce.  

The United States government charged him with conspiracy because Reems himself had nothing to do with distributing the film in interstate commerce.  As the prosecutor acknowledged:  

     “[Reems] made the film, got his money and got out back in 1972, that is, he didn’t do anything else as a part of the conspiracy, he didn’t do any more overt acts, he didn’t participate any further, and the question arises why in the thunder does he wind up being charged [with acts that took place] four years later?”

His answer was that “once a person joins a conspiracy, he is liable for everything that happens in that conspiracy until it is ended.”  (Reems once asked me whether he could have been charged with murder under the prosecutor’s theory, if some strong-arm methods used by the distributors had resulted in a death years after the film had been completed.  I told him that—under the prosecution theory—he could charged with that crime.)

In order to get out of the conspiracy, according to the government, Reems was obliged “to take up affirmative actions to defeat and destroy the conspiracy.”  But what could Reems have done?  He could not have “exposed” the crime, as one might expose a secret conspiracy, since everyone knew that Deep Throat was being distributed throughout the world.  He could not have prevented the distribution and exhibition of the film, since he retained no legal rights to it.  The prosecutor apparently expected him to physically destroy the thousands of prints of Deep Throat that were then in theaters and on video.  

The jury, selected from residents of Memphis, a city proud of being called “the buckle of the Bible Belt,” convicted Reems and his co-conspirators and Harry went off in search of an appellate lawyer.  Because of my involvement in the I Am Curious Yellow case, he called me.  

When we first met, Reems described himself to me as “a nice Jewish boy earning his livelihood by doing what lots of people would pay to do.”  He was born in Scarsdale, New York, with the name Herbert Streicker, attended the University of Pittsburgh, dropped out, joined the Marines, and later set out to become a stage actor.  He had performed with the La Mama troupe, the New York Theater Ensemble, and the National Shakespeare Company in New York City.  He had even done a Wheaties commercial.  During Christmas of 1969, “when things got rough and there was no work around…,a fellow said he knew where I could make $75 doing a stag film.”  He nervously accepted and reported for work.  His two female costars, both doctoral students in sociology at NYU, put him at ease, and he completed several “loops.” Streicher was successful, not so much because of his looks or size, but rather because of his extraordinary ability to perform repeatedly on cue.  In a business where time is money and the major cause of delay is male incapacity, a porno actor capable of filming several sequences in one day’s shooting is in demand.  

Streicker told me how he ended up as the male star of Deep Throat.  He had been hired—at $150 per day—as a sound and lighting technician for a sex film being shot near Miami, Florida, in January 1972.  When the original male lead failed to appear, the director, Gerard Damiano, asked Streicker to fill in—at a $50 cut in salary.  Since it took only one day to shoot the film’s sex shots, he earned only $100 for his performance.  His contract did not call for royalties.  When the filming was completed, Streicker’s role in the enterprise was over:  he did not participate in the editing or distribution of the film—not to mention its enormous profits.  Even his stage name “Harry Reems”—with some vague sexual allusion in mind—was picked by the director, without even consulting Streicker.  He was pleased, of course, that the film was well-received and widely shown.  He retained “Harry Reems” as his professional name, and performed in several other sex films.  But his role in Deep Throat was over, or so he thought, until he was arrested two years later in his Greenwich Village apartment.  An FBI agent handed him a warrant requiring his presence in Memphis, Tennessee, a city that Streicker had never even visited.  

The prosecuting attorney was a young Bible Belt fundamentalist named Larry Parrish.  (The names of all the participants sounded like puns:  Reems, Streicker, Lovelace, Parrish.)  Parrish was dubbed by the press as “Mr. Clean,” “The Memphis Heat,” and “the Memphis Smut Raker.”  A born-again Christian, and an elder in the First Evangelical Church, Parrish believed that pornography was the bane of modern America.  He once told a reporter, “I’d rather see dope on the streets than these movies,” explaining that drugs could be cleansed from the body, but pornography’s damage was “permanent.”  When asked why be became a prosecutor, Parrish cited the warning to evildoers in Romans 13:4, that God had appointed ministers on earth to carry out his wrath against them.  He believed it was his mission to conduct “search and destroy” operations against the porno industry.  As a prosecutor of pornography, he had already secured more than forty convictions.  

Many observers saw the decision to bring Reems to trial as evidence of Parrish’s creativity.  As a Memphis lawyer, familiar with Parrish, put it:  “Parrish figured that putting an actor on trial was the way to get publicity [and] a man is less likely to pick up public sympathy than a woman.”  Parrish acknowledged that his purpose in prosecuting Reems was to made it clear that no one involved with a porno film was immune from criminal liability.

Reems came to see me after he had been convicted and was facing years in prison.  He wanted me to argue his appeal.  He told me he had no money and asked me to take his case on a pro bono basis.  I agreed.  I told him I preferred not to watch the film and explained to him my theory of “choice” and “externalities,” but assured him that I would make every argument that had any chance of freeing him.  

There’s an old saying that goes this way:  “If you have the law on your side, bang on the law.  If you have the facts on your side, bang on the facts.  If you have neither the law nor the facts on your side, bang on the table.”  I have never believed that, but I do believe in a variation on that theme:  If you don’t have the law or legal facts on your side, argue your case in the court of public opinion.  In the Reems case, the Memphis jury had rejected Reems’ factual defense, and the judge had rejected his legal defense.  The Supreme Court had rejected my “choice” and “externality” approach.  I continued to believe, however, that the broader general public, or at least the most influential segment of the public, would be sympathetic to my libertarian approach to obscenity and free speech, especially in the context of an actor who was being prosecuted.  Reems, to be sure, was not Helen Hayes or Marlin Brando, but to make the point that the principle was the same, we adopted the following slogan: “Harry Reems today, Helen Hayes tomorrow.”  We made a determined effort to elicit support from the mainstream entertainment industry and from the media.

We succeeded in getting The New York Times to cover the case.  Its initial story told how the Reems prosecution was first seen “as a joke,” but is now being understood “as a very serious issue”:

     With Mr. Dershowitz as the lead lawyer and the American Civil Liberties Union and other prominent groups and individual prepared to help, Mr. Reems has some of the country’s most impressive legal talent working on his appeal.

     He also has the support of some of the country’s best known entertainers:  Colleen Dewhurst, Ben Gazzaza, Mike Nichols, Stephen Soundheim…Warren Beatty, Jack Nicholson and Gregory Peck.  

     As Mr. Dershowitz interprets the Deep Throat case, “Any person who participates in any way in the creation, production, editing or distribution of a sexually explicit film, newspaper, book, painting or magazine can be hauled into a Federal court anywhere in the United States and charged with participating in a national conspiracy.”

Shortly thereafter, Nat Hentoff wrote a long front-page analysis of the Village Voice.  Hentoff warned his readers of the consequences of a government victory in the Reems case.  

     Alan Dershowitz, a Harvard Law School professor and one of the nation’s preeminent constitutional lawyers, has never been known as an apocalyptic civil libertarian.  Accordingly, when Professor Dershowitz speaks of the recent criminal convictions in a porno-film case as being so chilling as to ultimately also freeze the printed word, the warning is a weightier than if it had come from those who habitually clamor that the constitutional sky is falling…

     Should the verdict against Harry Reems be sustained, obscenity indictments throughout the country will pyramid.

Hentoff explained that the implications of the Reems prosecution go well beyond obscenity.  If a conspiracy charge like this one was to be upheld on appeal, the government could make dangerous use of that precedent in political cases involving, for example, antiwar activists.  
Hentoff then quoted my legal argument:

      “[H]ere was an actor who, on the one day he worked on Deep Throat, had no idea what the ultimate film was going to look like.  He knew it was a sex film, but he had not seen any script in advance.  There was no way he could know whether it was going to be soft core or hard core.  And, in fact, Harry never even saw the film before it was released.  Yet he’s convicted of a conspiracy to move the film, in the form it finally took, across state lines.” 

Following the publication of the Hentoff article had, hundreds of readers came forward and volunteered their assistance.  It also generated numerous other stories—presenting our side of the case.
                         KING OF THE PORNO ACTORS FINDS HIMSELF IN DEEP THROES
                         IN TROUBLE UP TO HIS THROAT
                         HOW HARRY GOT REAMED
                         DEEP THREAT
                         PORN’S DEEP GOAT
                         REEMS SHAFTED IN BIBLE BELT

Reems and I crisscrossed the country, speaking at universities, town halls and other venues.  Our appearances were widely covered by the media.  The New York Times described a joint appearance at the Harvard Law Forum:

     Harry stood with a portrait of Supreme Court Justice Felix Frankfurter beaming down on him.  Besides him sat Alan Dershowitz, looking like a tweedy Marx Brother with his wild nimbus of ash-blond hair, saying that he felt Harry Reems’ trial was the most significant First Amendment conspiracy case since Dr. Spock.

     Dershowitz acted as a sort of kibitzer for Harry.  He noted that the crew of the Glomar Explorer, [which] had been shown a videotape of Deep Throat, had more to do with transporting obscene material in interstate commerce than Harry Reems did.  Would Larry Parrish prosecute them?  When I asked Parrish, he said:  “They’re not insulated against prosecution.”  

Not all the stories were flattering.  Mike Royko complained in a syndicated article how depressing it was that after two hundred years of men like Jefferson, Paine, Debs, and Darrow, “we are now asked to fight for the right of Harry Reems to be a public creep…Anybody who contributes to his defense fund,” Royko concluded, “is a mental moonbeam.”

But people contributed and Reems and I persisted in making our case in the court of public opinion.  In time, the publicity had its intended effect on the public, on the Justice Department, and on the courts.  We began to get the message that the Reems conviction was an embarrassment.  This was exactly what we had hoped would happen.  

In the end, the Justice Department decided to drop the case.  Reems’ conviction was vacated and his indictment was dismissed, over the strong objections of the Memphis prosecutor and judge.  We did not have the law on our side, but we did have public opinion.  We might have lost our case in the court of law (or won it on grounds other than my “choice”, “externality approach,”) but we had clearly won in the court of public opinion. 39   Harry Reems went free, retired from the porn business, became a born-again Christian and moved to Utah, where he sold real estate.  As my legal “fee” for winning his freedom, he sent me a photograph of him with the following inscription:  “To Alan Dershowitz who me everything I know.”  The First Amendment was safe from the likes of Larry Parrish—at least for a time.

My second encounter with Deep Throat presented a more daunting challenge to my theory.  It took place on my home turf of Harvard, and the people urging criminal prosecution were Harvard students.  The people who these students wanted to see prosecuted were other students, one of whom eventually became a founder of Microsoft.    

It all began with some drunken Harvard College students viewing the film Animal House and throwing beer cans at the screen and damaging it.  The Quincy House Film Society was responsible for the screen.  In order to raise the several hundred dollars needed for repair, they decided to show Deep Throat.

Some women students who lived in Quincy House protested.  “This is our home,” one complained.  “We shouldn’t have to be subjected to abuse and degradation right in our own living room.”

The uproar had caught the film society by surprise.  The showing of Deep Throat had become a pre exam tradition at many colleges.  My own nephew sponsored a showing at MIT.  It was seen as a lark, an escape from the tensions of the tests.  But feminists were beginning to take pornographic movies, especially Deep Throat, quite seriously.

Several weeks prior to the scheduled showing, Gloria Steinem had written an article in Ms. magazine about Deep Throat and the exploitation of its female lead, Linda Lovelace.  Pointing to the $60 million allegedly made on the film, Steinem characterized Deep Throat as “a national and international profit center and dirty joke.”  At the heart of the joke was Linda Lovelace “whose innocent face offered movie-goers the titillating thought that even the girl-next-door might be the object of porn-style sex.”  But, according to Steinem, it was a joke with widely felt consequences:  “Literally millions seem to have been taken to Deep Throat by their boyfriends or husbands (not to mention prostitutes by pimps) so that each one might learn what a woman could do to please a man if she really wanted to.”
Moreover, Linda Lovelace was now claiming that her innocent face had been a mask covering up a battered wife who had been imprisoned by her husband-pimp.  Several years after the completion of Deep Throat was completed, Lovelace wrote an autobiography entitled Ordeal, in which she told a sordid story of how she had been compelled to perform her “sexual sword-swallower trick” at gunpoint.  

After reading Ordeal I called Reems and asked him whether his recollections of the filming of Deep Throat corroborated her claim that she had been forced into performing.  Harry, who was then working off-Broadway in a stage play, laughed and said, “Are you kidding?  Sure her husband, Chuck, was an asshole, but he was hardly around during the filming.  Damiano sent him away because he would get jealous of how much she was enjoying the sex.  She was really into it.  We had a good relationship before and during the filming.”  

I told Harry that Lovelace had written that when “she saw how upset Chuck was, [she] decided [she] would pretend to enjoy it with Harry.”  I asked whether it was possible that she was only acting.

“Linda Lovelace acting?” Harry exclaimed.  “Have you seen her in a film?  She couldn’t even pretend to be acting.”  

Whether true or false, Lovelace’s account struck a responsive chord among many feminists.  Gloria Steinem’s article presented a sympathetic portrait of Lovelace as the victim of everything the “sleazy pornocrats” had come to represent.  Using Lovelace’s Ordeal as a symbol of sexist repression, many feminists declared all-out war against pornography.  The movie Deep Throat came to symbolize the anti-women evils of the sex industry.  And I became the symbol of the “pornocrat lawyer,” getting rich off the suffering of exploited women (even though I charged nothing for these cases).

The organization through which Gloria Steinem spoke—Women Against Pornography—advocated boycotts as its primary weapons in the war on porn.  The boycotts were directed not only against theaters and bookstores, but against lawyers who represented them on First Amendment grounds.  When I and several friends opened a Kosher deli in Harvard Square, it was picketed with signs of saying “How can a porn pig serve Kosher food?”  

Although boycotts are themselves protected by the constitutional right of free expression, civil libertarians are appropriately concerned about the effect of overly broad boycotts, such as those directed against general bookstores.  We remember that boycotts had been employed widely during the McCarthy period.  The threat to boycott motion-picture studios and television stations that employed “red,” “pink,” or “suspect” actors, directors, or technicians, led to the notorious “black lists” and “red channels.”  In an interview with Playboy magazine, I had expressed some of those concerns:

     “Take what [some of these] women are now doing and ask yourself the question.  Would you favor it if their objection were to books about atheism or communism instead of pornography?  If you would say no, then it seems to me that you can’t be in favor of a boycott against stores that sell Playboy and Penthouse, because they’re equally protected.

The dispute between civil libertarians and feminists had split the ranks of some liberals, and the issue was achieving some notoriety in the media.  I had, perhaps, added some fuel to the fire by my criticism of the “new feminist censors” in several articles and speeches.  I did not deny that some pornography could be degrading to women, but I argued that it is precisely the function of the First Amendment to protect those whose speech offends and degrades.

I pointed out that some of the most vocal opponents of pornography inadvertently provided the most compelling arguments for its constitutional protection by characterizing it as “Fascist propaganda.”  (The Fascists, not surprisingly, used to call it “Communist propaganda.”)  All propaganda is within the central core of the First Amendment.  Nor did I dispute the claim that some pornography may contribute to an atmosphere of violence against women.  But speech often causes undesirable consequences—political violence, riots, even revolutions.  That should not, I argued, be a reason for suppressing speech itself.


Some radical feminists went beyond boycotts, shooting bullets through a bookstore window in Harvard Square to protest its sale of Playboy Magazine.  Some theaters showing Deep Throat received threats of violence, and at least one was firebombed after the patrons left.  

Some of the women of Quincy House who were opposed to Deep Throat were not content to protest.  First they tried to cancel the showing by calling for a vote of the students who lived in the dormitory.  They lost by a margin of three to one.  Forty-nine percent of the women who voted opposed the showing; and forty-eight percent favored showing Deep Throat.  Next they tried to get the Harvard University administration to forbid the scheduled showing.  The Dean of Students wrote a letter to the Quincy House Film Society urging it not to show Deep Throat, but he would not ban it.  The members of the film society, caught up in the adversary challenge by the feminists, voted to go forward with the event.  

The Quincy House women, with the assistance of other feminists, decided to picket the performances and to use the occasion to sensitize students to the evils of pornography.  I supported their protest.  Pamphlets were prepared presenting the feminist perspective on pornography.  A slide show, graphically depicting the exploitive and sexist nature of pornography, was scheduled for presentation in an adjoining room an hour before the first showing of Deep Throat.  Several prominent local feminist speakers had been asked to address the hundreds of protesters expected in front of Quincy House on the evening of the first scheduled performance.

The First Amendment seemed to be in full bloom at Harvard.  No one was being prevented from expressing his or her views.  The Quincy House Film Society was going to show Deep Throat; the Harvard administration was expressing but not imposing its views; the feminists were preparing pamphlets, slide shows, and speakers to present theirs; and everyone was free to see and listen to all or none of these expressions.

The feminists seemed to be making their point quite effectively: more students were expected on the picket lines and at the slide show than at the movie itself.  Many in the Harvard community, while supporting the right of the Quincy House Film Society to show Deep Throat, now believed that the society had been insensitive to the feelings of their feminist housemates by exhibiting an offensive film in the dormitory that was home to them all.  I shared that view.

Then everything changed.  Days before the scheduled showing, two women residents of Quincy House, not satisfied to protest and picket, called the local District Attorney’s office and asked the police to prevent the showing of Deep Throat and to arrest the students who were planning to show it.    

The local District Attorney was an elderly political hack named John Droney, who had repeatedly won reelection on an uncompromising law-and-order platform.  When he learned that the twin evils of obscenity and Harvard might merge on that fateful night, he dispatched an assistant to court in an effort to secure an injunction against the scheduled showing.

If there is anything more obnoxious to a civil libertarian than the punishment of speech after it has taken place, it is the issuance of a prior injunction to prevent speech in the first place.  Prior restraint—as an injunction against speech has come to be known—is the purest form of censorship.  It seeks to prevent the speech from ever reaching the public.  Now, almost ten years after the Supreme Court had rebuffed efforts to enjoin publication of the Pentagon Papers, the District Attorney of Middlesex County was seeking to enjoin the showing of a dirty movie to a small group of students in a college dormitory at Harvard.

Only hours before the scheduled performance, Carl Stork and Nathan J. Hagen—the co-presidents of the Quincy House Film Society—received telephone calls from the D.A.’s office directing them to be in Judge Charles R. Alberti’s courtroom at two o’clock for a hearing.  Stork and Hagen tried to call me in my office.  But I was at lunch, and my secretary couldn’t locate me.  Stork and Hagen told her the story and requested that I come to the court to assist them as soon as possible.  I returned from lunch at two-fifteen, to learn that I was expected in court—fifteen minutes earlier!

I quickly borrowed a colleague’s ill-fitting jacket, dug an old brown tie out of my desk drawer, and drove to the courthouse in downtown Cambridge.

Within minutes, I found myself before Judge Alberti, arguing against the injunction.  With no books, cases, or statutes in my possession, I had to wing it.  The judge was most understanding, asking the Assistant District Attorney to let me look over his shoulder at the relevant statute and cases.


After some legal argument, Judge Alberti declared that he was ready to see Deep Throat to decide whether it was obscene.  I argued that the judge need not view the film: no matter what its content, I said, it would be unconstitutional for him to enjoin the showing of any film.  If the D.A. thought the film was obscene, he could wait until it was exhibited and then arrest those responsible for its being shown.  Judge Alberti insisted, however, on having Deep Throat screened for him.  As the equipment was being wheeled in the courtroom, I informed the judge that I had no intention of watching the film.

 I was preserving an important point for any jury trial that the students might have in the future.  I would tell the jurors that I had never seen Deep Throat because I had chosen not to, and that they had never seen Deep Throat because they had chosen not to.  I would argue that the right to choose not to see a film is just as important as the right to choose to see a film.  Indeed, most countries that prevent their citizens from seeing certain films also require their citizens to see other films.  I would remind the jurors that it was the District Attorney who was making them see a film they had chosen not to see, in order to have them decide whether other people, who have also chosen not to see would be offended if they were to see it.  I hoped, by this argument, to point out the absurd nature of the jurors’ task in an obscenity prosecution, and to get them to focus on the important issue –namely, whether the outside of the movie theater, the only thing that the unwilling public may have to endure, is offensive to those who cannot avoid it.  

Judge Alberti excused me from watching Deep Throat, and Stork, Hagen and I left the courtroom while the judge, half a dozen assistant D.A.’s, and a few court house personnel watched Linda Lovelace and Harry Reems on a small video machine.  

After about forty minutes Judge Alberti abruptly stopped the videotape and summoned us back into court.  “I’ve seen enough,” he declared with a disgusted look on his face.  Then, turning to me, he said, “You’re the lucky one.  I had to sit through that trash.”  The judge then declined to issue an injunction against the scheduled showing of Deep Throat, because although he regarded it as degrading both to men and women, he found that it was not obscene under the relevant Massachusetts standards.   The film would be shown that night. 

When I arrived at Quincy House shortly before eight o’clock, a circus atmosphere prevailed.  Hundreds of pickets marched outside urging potential viewers to stay away.  There was some pushing and shoving.  Slogans were shouted:  “Freedom of the Press is not Freedom to Molest.”  “Pornography is an incitement to violence.”

I walked past the pickets and spoke to the assembled viewers and protesters:

     Whether you folks like it or not, you are part of a rather important political event…I am not here to either encourage or discourage the students who decided to see this film…Were I not involved in this lawsuit, I would be out there defending the rights of those picketers to…persuade you not to see this film.  


Notwithstanding the judge’s ruling that the film was not obscene, the District Attorney decided to arrest Stork and Hagen.  The Deep Throat case was so important to Droney that he pulled one state detective off a murder investigation to watch the film and make the arrest. 

I tried to secure a federal injunction against the arrest of my clients, by telephoning the emergency judge.  But in the midst of our conference the first show ended and the officers arrested Stork and Hagen, confiscated the film, and seized the money the society had collected for the tickets.  

Amidst shouts of “Free the Quincy House Two,” Stork and Hagen were taken to Cambridge Police Headquarters and booked on charges of disseminating matter they knew to be obscene, despite the reality that they knew it not to be obscene, because the judge had so ruled.  A band of students marched behind them and protested the arrest on the steps of the police station.  Among the protesting students were some of the same women who earlier had organized the feminist demonstration.  They were furious at the feminist students who were trying to put two of their fellow students in prison for exercising their freedom of expression.  As I later described this irony:

     …the minute the kids were arrested, the minute the law was invoked, everything changed—the women [who called the cops] became the goats, the kids [who were arrested] became the heroes. One lesson that we all learned was that the least effective way of delegitimizing this kind of speech is to invoke the law; it has the opposite effect.  You get all the good people on the side of the bad acts.  

Several days after the arrest, we filed a civil rights action in Boston Federal Court charging District Attorney Droney with violating the rights of Stork and Hagen, as well as those of the audience members who were denied the right to attend the three scheduled showings that had to be canceled after the film was seized.  

Eventually all the charges against Stork and Hagen were dismissed, after the lawsuit forced the District Attorney to admit, under oath, that he had willfully defied the judicial determination that Deep Throat was not obscene under Massachusetts Law and that his goal was to serve as a “censor,” regardless of the law.  The “Quincy House Two” were free and life returned to normal at Harvard.  


My encounters with fundamentalists, feminists and pornographers made clear to me the important, and often underestimated, relationship between the court of law and the court of public opinion.  If a visitor from Mars, our even from Europe, were to read only the Supreme Court decisions on obscenity, he would come away with a totally false picture of the law of obscenity in action—or inaction.

I once had a European student who wanted to study why there is so much censorship of erotic material in the United States.  He had come to his erroneous conclusion from reading United States Supreme Court decisions.  I told him that before he undertook his study, he should visit some video stores (this was several years ago) and adult-only movie theaters.  He did and came back to me in shock.  “They don’t follow the Supreme Court in the United States,” he exclaimed.  “Now that’s a subject worthy of study,” I replied.  

It is important to remember that in a democracy, even a democracy in which the Supreme Court plays so central a role, that in the end the people decide.  This is especially true in an area, like obscenity, where “community values” help define the law.  Such values are ever-shifting and subject to influence.  While the Supreme Court has insisted that the government has the power to punish (and otherwise regulate) the showing and viewing of “obscene” films in adult-only theaters (and on cable and “on demand” television), the people have voted the other way with their feet (and their remotes).  The law in action today bears little resemblance to Chief Justice Berger’s “categorical…disapprov[al] of [my] theory that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only…”  The law in action more closely resembles the approach I advocated in my first encounter with the law of obscenity back in 1969.  I promised Judge Aldrich that if we lost in the Supreme Court, I would continue, as a lawyer, to continue to urge acceptance of the argument that the government has no business telling a consenting adult what he may or may not watch in a theater (or video or TV) from which children are excluded, so long as the “externalities”—that which appears in public view outside the theater—is not obscene.  

I have kept my promise, and despite the Supreme Court’s continued insistence—most recently in the violent video games case—that “obscenity” is not protected by the First Amendment, porn is widely available to consenting adults who choose to watch it without thrusting it upon unwilling viewers.  That’s the law in action.  Inevitably, the law, as articulated by the courts, will follow the law in action, lest it become irrelevantly anachronistic or patently hypocritical.  Hypocrisy, it has been said, is the homage paid by vice to virtue.  In the area of obscenity, hypocrisy functions to allow the courts to maintain a pretense of Puritanism in a world of prurience.  A puritan, H.L. Menkin once remarked, is a person who spends his days worrying that somewhere, somehow, someone is having fun.  T. B. Macaulay once observed that “The Puritan hated bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators.”  Perhaps that’s why our “Puritan” former Chief Justice insisted on comparing adult films to bear-baiting.  Some adults enjoy watching obscene films.  Although some puritans and feminists hate this, there is no evidence that this activity causes the type of harm that government should be empowered to prevent by censorship. 40 

Most Americans seem to understand that pornography, while offensive to some, is not provably harmful to others.  That’s why obscenity prosecutions have a relatively low rate of success.  I have been involved in dozens of obscenity cases over the years and do not recall ever losing one.  
In addition to litigating many obscenity cases, I have written extensively on the subject.  My article “Why Pornography?” set out to determine whether there is any actual relationship between “hard-core pornography” and violence against women.  It began by disputing Justice Potter Stewart’s famous line that although he could never “define” hard core pornography, “I know it when I see it.”  That may have been true before radical feminists targeted pornography as a major cause of rape and other violence against women.  Now the radical feminist definition of hard-core pornography would be unrecognizable to Justice Stewart, as well as to social scientist who seek to establish a causal connection between porn and rape.  Here is the definition as set out in a model statute introduced in several state legislatures by radical feminists:

     Pornography is the graphic sexually explicit subordination of women, whether in pictures or in words, that also include one or more of the following: (i) women are presented dehumanized as sexual objects, things or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation; or (iii) women are presented as sexual objects who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (v) women are presented in postures of sexual submission, servility or display; or (vi) women’s body parts—including but not limited to vaginas, breast and buttocks—are exhibited, such that women are reduced to those parts; or (vii) women are presented as whores by nature; or (viii) women are presented as, or penetrated by, objects or animals; or (ix) women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual.  (emphasis added).  

The italicized words—“subordination,” “dehumanized,” “objects,” “scenarios of degradation”—are so vague and subjective that they could apply to the writings of Shakespeare, Checkov, Roth, Hemingway, Mailer, DeSade, Miller and many others.  The only element this new definition of pornography has in common with what Justice Stewart “knew” when he “saw” it is the requirement that the material be “sexually explicit.”  Without this element, the government would have no historical basis for banning speech.  I then went on to show that there was no correlation (to say nothing of causation) between the sexual explicitness of a film and the likelihood that it will induce violence by its viewer.  Indeed the available evidence suggests that there may well be a negative correlation, since rape has gone down considerably in those societies in which sexually explicit films are pervasive, while rape has certainly not gone down in those societies that persist in censoring films with explicit sex.  

I argued therefore that “pornography is a red herring” and that in the absence of compelling evidence—of which there is none—that it causes actual harm beyond offending those who can choose not to see it, the government should get out of the business of censoring films and other media.  

There are, however, other types of speech that pose far greater potential dangers.  These communications include the divulgence of state secrets, the dissemination of classified information and the publication of news stories that compromise the national interest and endanger citizens.  The problem is that the censorship of such expression may also pose far greater risks to democracy and liberty than the censorship of obscenity.  Put another way, democracy could survive the censorship of hard-core pornography, despite the “slippery slope” from “porn” to politics (or from Harry Reems to Helen Hayes.)  A society that banned pornography would, perhaps, be less vibrant, less tolerant, less pluralistic, less committed to choice, than one that did not.  It might also be more subject to sliding down the slope toward other forms of artistic censorship at the margins.  But so long as core political discourse remained free and open—as long as political dissent continued to thrive—democracy could survive.  The same could not confidently be said about the widespread censorship of expression regarded by the government as state secrets, classified information and “dangerous” news stories.  These go to the very heart of our democratic system of checks and balances in which the ultimate check is an informed public.  As James Madison cautioned nearly two centuries ago: “A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.”




Chapter 7  Disclosure of Secrets:  From Pentagon Papers to Wikileaks

The conflict between national security and free expression is a real one.  It must be confronted and resolved by every society committed to civil liberties yet concerned for its safety.  In this respect, the situation is different from the alleged conflicts that motivate the censorship of supposedly obscene material:  in most obscenity cases, the “conflict” is contrived and need not exist at all.  There is ample room in a diverse and free society for accommodating the desires of those who get pleasure from porn and those who feel the need to be protected from the intrusion of offensive material.  The guiding principle that “your right to swing your fist ends at the tip of my nose” suggests a workable approach to the regulation of merely offensive material.  But there is no simple rule for the accommodation of free expression and national security, where the expression may expose our security to real danger.

No reasonable person can dispute the reality that there are “necessary secrets,” like the names of spies, the movement of troops, the contents of codes and ciphers, the location of satellites and the nature of secret weapons. Nor can any student of history doubt that there are unnecessary secrets, like old and useless information that remains classified by bureaucratic inertia. There is also information kept secret under the pretext of national security but really in order to protect the reputation or electability of government officials. And then there is the most interesting category of secrets — those that are genuinely designed to protect national security in the short run, but whose disclosure may well serve the national interest in the long run. (An example of this last category, at least with the benefit of hindsight, was the decision by The New York Times to withhold publication of the Kennedy administration’s imminent intention to invade the Bay of Pigs in Cuba. Had it disclosed this information, the fiasco might have been called off, many lives saved and America’s reputation less tarnished.) 
The most controversial genre are secrets whose disclosure would, in the reasonable views of the government, endanger national security, but whose disclosure, in the equally reasonable view of the press, might ultimately serve the national interest. The real issue is not whether such secrets should be published, since that question will often be a close one about which well-intentioned people will disagree. The real issue, as it often is in a democracy, is who should be entrusted to make this real-time decision. 


The other difficult issue is not whether, but when to publish. In a democracy, there should be no permanent secrets, since history and accountability are paramount. The public must ultimately know everything its government has done in its name, but sometimes it is necessary to postpone publication until an immediate danger has passed, since in the modern world, there is no way of disclosing secrets to friends without also disclosing them to enemies. 



There is no “one size fits all” solution to this daunting conflict, but there are some useful guidelines in striking the proper balance.  In the first place, the vast majority of claims that national security will be endangered by free expression are simply not true; most such claims are probably not even believed by the government officials who assert them.  The talismanic phrase “national security” is often invoked as a transparent cover for convenience, for political advantage, and for protection from personal or political embarrassment.  Every claim of national “security”—or “corporate security” or “university security” or the security of any institution—should be subject to rigorous challenge, in an effort to separate the contrived from the authentic.  But this will not eliminate all conflict.  There will be some cases of real and intractable conflict between security and freedom.  Our Constitution purports to resolve doubts in favor of freedom, but there are cases where even that presumption will not resolve the problem: where the authentic claims of national security will seem to outweigh the powerful presumption in favor of free expression.

In those cases we need to develop adequate mechanisms for resolving the dispute.  Resolution cannot be left entirely in the hands of those responsible for security, such as the executive or the military.  Our experience in delegating decision-making authority to these institutions in times of crisis is discouraging.

It has been indeed fortunate for the survival of our liberties that there have always been some Americans—often only a small group and sometimes not those directly affected—willing to challenge governmental high-handedness, even during periods of crisis.  Under our constitutional system, it takes only a single person challenging the government to create a case or controversy suitable for judicial resolution.

This is not to suggest that justice should remain blind to the existence of a real emergency endangering the survival of the nation.  As Justice Arthur Goldberg once wrote:  “While the Constitution protects against the invasion of individual rights, it is not a suicide pact.”  But it is precisely during times of crisis—when the balance between momentary expediency and enduring safeguards often goes askew—that courts can perform their most critical function:  to preserve or restore a sense of perspective.

In the eternal struggle between liberty and security we have come to expect the executive and legislative branches to champion the latter.  The judiciary—with its lifetime tenure, its tradition of independence, and its unique stewardship over our irrepealable rights—is the institution most able to resist the passing fears and passions of a dangerous moment.

But liberty is not a commodity that can be obtained once and for all, and then passively held on to.  The battle for civil liberties, as Roger Baldwin, the late founder of the ACLU, liked to say, “never stays won.”  (A variation on the Biblical admonition that justice must be actively pursued, because it too “never stays won.”)  The struggle must be endured by every new generation and in each new crisis.  What Thomas Paine taught us on the eve of our own Revolution remains true today:  “Those who expect to reap the blessings of freedom must. . . undergo the fatigue of supporting it.”

The stakes on both sides are much higher when the government seeks to censor dangerous “leaks” than when it seeks to censor obscenity or other merely offensive or disturbing speech.  The danger of publication is greater and the danger of repression is also greater.  There are serious risks in not censoring, and there are serious risks in censoring.  Striking the proper constitutional balance between these risks is a daunting challenge that every democracy must confront.  Unfortunately it is a challenge that too few democracies—including our own—have confronted wisely and correctly. 41 

I was asked to help confront this challenge early in my career in several important cases pitting national security against the First Amendment.

These early cases grew out of our disastrous experience in Vietnam, and I observed at close range the ravages of war on our freedoms at home.

The first major Vietnam case was the conspiracy prosecution against Dr. Benjamin Spock, the Reverend William Sloan Coffin, and several other antiwar leaders.  I played a consulting role in the defense of Dr. Spock and eventually wrote an article for the New York Times about the case after the convictions were reversed on appeal.

The most publicized and notorious of the Vietnam protest cases was the conspiracy prosecution against the “Chicago 7” growing out of demonstrations during the 1968 Democratic Convention.  After the trial of that case, the lead defense lawyer—William Kunstler—was held in contempt of court and sentenced to four years imprisonment.  I was part of the legal team assembled to prepare the appeal of that contempt order.  We won.  

Another major prosecution was against the Berrigan brothers and other radical leaders of the draft resistance movement.  I was asked to work on the defense of that case, but was “fired” by one of the more militant defendants when he learned that I was a Zionist.


The bitterness of the Vietnam War spread rapidly over college and university campuses.  What began as peaceful teach-ins and protests soon turned to confrontations and violence.  In 1969, there was an anti-war protest at Harvard that led to violence and several years of continuous turmoil on that venerable campus.  These events led the university to attempt to suspend or dismiss numerous students.  I represented several of these students against the university.  One was accused of “giving the finger” to a speaker.  Another was accused of shouting “no silence in the face of death,” when the speaker requested a moment of silence for soldiers killed in combat.  We won both cases.  

At Stanford University the leader of the antiwar group was a professor of English literature named Bruce Franklin.  He was a Maoist, a Stalinist, and an advocate and practitioner of direct action, including violence.  As a result of several speeches he gave and activities in which he participated, the Stanford administration decided to strip him of tenure and fire him.  It was the first political firing of a tenured professor by a major university since the terrible days of McCarthyism.  I took his case on behalf of the American Civil Liberties Union.

As the war was winding down and the United States was deciding to withdraw from Vietnam, the CIA was given a major role in overseeing the American evacuation.  One of the highest ranking CIA agents in charge of the operation was Frank Snepp.  Snepp wrote an uncensored account of his experiences—taking care, however, not to disclose any classified material.  He refused to submit his manuscript for prior “approval” by the CIA, as required in his employment contract.  When his book entitled Decent Interval was published the CIA sued him, and the case eventually was decided against him by the Supreme Court.  I was one of his lawyers throughout the litigation.

The release and publication of the Pentagon Papers in 1971 was perhaps the single most important event in turning American public opinion against the Vietnam War.  While the New York Times and the Washington Post were fighting in court to continue publishing portions of the Papers, Senator Mike Gravel of Alaska was taking more direct action:  he convened an emergency night-time meeting of his subcommittee on Buildings and Grounds—hard to imagine a committee less relevant to the Pentagon Papers—and placed the Papers in the public record.  The “Gravel Edition” of the Pentagon Papers was then published by Beacon Press of Boston.  I represented Beacon Press and, subsequently, Senator Gravel in litigation that eventually went to the United States Supreme Court.

I also conferred with my teacher and dear friend Alexander Bickel, who was lead counsel for the Times in the Pentagon Papers case.  Our cases shared a common constitutional approach and so we exchanged ideas and drafts.  

The difficulty of defending an absolutist view was well illustrated by an exchange between Justice Potter Stewart and Professor Bickel.  Stewart asked Bickel about “a hypothetical case:”

     “Let us assume that when the members of the Court go back and open up this sealed record we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers.  What should we do?”

Bickel fumbled: 

     “I wish there were a statute that covered it.” (p. 46)  

Justice Stewart persisted:  

     “You would say the Constitution requires that it be published, and that these men die, is that it?

Finally, Bickel answered his hypothetical directly.

     “No, I’m afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort.”

The lawyer for the government, Solicitor General Erwin Griswold (former Dean of the Harvard Law School) did not regard Justice Stewart’s case as hypothetical.  

     “I haven’t the slightest doubt myself that the material which has already been published and the publication of the other materials affects American lives and is a thoroughly serious matter.”

Several years after the argument, Griswold expressed a rather different view:

     “I have never seen any trace of a threat to national security from the publication.  Indeed, I have never seen it even suggested that there was such an actual threat.  [He, of course, had suggested just that in his oral argument]…It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.  There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past.  This is the lesson of the Pentagon Papers experience, and it may be relevant now.” 42   

The First Amendment emerged victorious in the Pentagon Papers case, as it did in most of the anti-war cases of the 1970s.  But this was before the age of the internet.  Everything would soon be different as technology changed the sounds and sights of expression—as well as the stakes involved in the debate over disseminating massive amounts of classified material throughout the world in the blink of an eye.    

                    Julian Assange and Wikileaks

Important as it was as a First Amendment precedent, the Pentagon Papers case was First Amendment “child play” compared with the Wikileaks case and other current threats to national security posed by modern computer technology.  The Pentagon Papers, after all, were to be published by “mainstream,” “responsible” 43  and “patriotic” media, such as The New York Times, The Washington Post and the Beacon Press, which would be “sensible” in what they exposed to public view.  They would never publish the names of spies, informers or other people whose lives might be endangered by disclosure.  (After all, they don’t even publish the names of alleged rape victims, though there are good arguments for doing so, at least in some cases.) 44 

Moreover, these “established” media have permanent “addresses.”  They can be found and held legally accountable if they violate the law.  Moreover, they are “businesses” that need public support, and are therefore unlikely to take any actions that would alienate their paying readership and advertisers.  These constraints provide some assurance that such established members of “the Fourth Estate” will not pose the worst kind of dangers to our national security.  They serve as an informal “check and balance” on the excesses of journalistic freedom. 45 

None of these assurances or checks are in place when it comes to the “hackers,” “cyber-thieves,” “anarchist” and other “outsiders”—many of whom are “anonymous”—who currently threaten to expose our deepest, most dangerous and most valuable “secrets.”

There are, of course, some historical low tech antecedents to the current high-tech dangers.  During our pre-revolutionary, revolutionary and immediate post-revolutionary era, there were many “radical,” “irresponsible,” “anarchistic and “anonymous” “rabble-rousers” and even “whistle blowers,” “eavesdroppers” and “leakers” who were believed to be endangering the “security” of the government. 46   “Secret presses” published “anonymous” or pseudononymous screeds, some of which disclosed “secrets” or other “dangerous” information.

The language of the First Amendment would seem to protect these dissidents against any abridgement of their freedom of expression—at least from the United States Government.  But our history in this regard has been checkered at best, especially in the context of fear of war.  

Less than a decade after the ratification of the First Amendment, Congress (the very Congress that was directed to “make no law abridging the freedom of speech) “made” the Alien and Sedition law, which expressly abridged the freedom of speech of dissidents and critics of the Adams Administration.  The justification for this repressive legislation was the fear of war with France.  During every war or threatened war since, there have been efforts, many quite successful, to abridge the speech of “disloyal,” “unpatriotic,” and “irresponsible” dissenters.  

The “retail” dangers posed by individual trouble-makers (or even by groups) was, of course, rather meager compared to the “wholesale” dangers currently posed by cyber-“trouble-makers,” such as Julian Assange and Wikileaks.  Indeed, even Assange and Wikileaks are somewhat closer to established media than are some others who we know little or nothing about.  After all, Wikileaks worked closely with established media, such as the New York Times, The Guardian and other mainstream media.  There are generally several levels of vetting before anything is published.  It can be argued that Wikileaks has served as a “filter” for material that might otherwise have been published directly on the internet, without any names or other such material having been removed.  

There are hackers out there who regard Assange as a “sell out” for “tampering with the truth” by excising anything.  They would—and do if they can—publish everything they manage to hack.  That is why the first line of defense against the disclosure of secrets is to protect the most important secrets from hacking or other means of accessing them by preventive steps.  As Assange once told me, “the best way to keep a secret is not to know it.”  The United States does a terrible job of protecting its secrets, often giving access to some of the most unstable and irresponsible individuals, while denying security clearance to perfectly loyal and cautious people.  Inevitably some secrets will become known to those who have no stake in keeping them secret and an important stake in making them public.  That’s why the rule of law, rather than the whim of government officials, is needed to strike the appropriate balance.  

I may have an opportunity to help strike that balance, because Julian Assange has asked me to consult with him and his British legal team regarding a possible indictment by the United States against him and others.

I went to London in March of 2011 to meet with Assange and the lawyers who were then representing him.  He was facing the immediate prospect of extradition to Sweden on sexual assault charges, but he also faced the possibility of being extradited to the United States to face charges that carried far more serious consequences than those in Sweden.  It was the possible American prosecution that he wished to discuss with me.

I first spent several hours with Assange and his legal team over the phone and by email.  We worried about the security of our lawyer/client communications, which some might think ironic in light of Assange’s penchant for disclosure of secret communications, but he had little choice but to communicate about the legal issues.  We decided that a face-to-face meeting was required and we met in his lawyer’s office.

I found Assange to be an earnest person, deeply devoted to the principle of maximal transparency of governmental actions.  He was, however, sensitive to the need to keep some secrets—if not from him, at least from the general public, which inevitably includes some very bad people determined to do some very bad things to innocent and perhaps not so innocent people.  

Assange insisted to me 47  that he was a journalist, in every relevant sense of that term.  He published, and turned over to others to publish important and relevant material that others had provided to him anonymously.  He and his colleagues had devised a technology for allowing “whistle blowers” to “drop” material to Wikileaks anonymously and with no possibility of it being traced to its source.  This “dropbox” technology was the cyber manifestation that the best way to keep a secret is not to know it in the first place.  He and his colleagues had devised a foolproof system, he believed, to keep them from learning who had “dropped”  the material into “the box.”

His job as a journalist was to authenticate the raw material, vet it for names and other life-threatening information which in his journalistic judgment should not be published (for example, the location of safe houses and the names of vulnerable people), and arrange for it to receive maximal reach by having it published by mainstream media outlets around the world, which would do further vetting to meet their own journalistic standards.

When he finished explaining his journalistic modus operendi, two names immediately popped into my head:  Seymour Hirsh of the New Yorker, and Bob Woodward of the Washington Post.  Both are solid pillars of the journalistic establishment and both have made their reputations by publishing secrets the government—or at least some in the government—did not want to see in print.

Hirsh specializes in publishing classified information about national security that has been provided to him by whistle blowers inside the government who disagree with particular governmental policies and want to see them exposed by someone who is believed to be sympathetic to their dissenting views.  Some, if not most, of these whistleblowers are breaking the law by disclosing classified material to Hirsh.  Hirsh and his publishers knew that they were publishing classified information before they published it.  Yet neither he nor his publishers have been prosecuted.  

It is likely, moreover, that Hirsh has encouraged at least some of his more reluctant sources to become whistle blowers or, if they came to him without any prior encouragement, to continue to provide him with classified material.  I do not know this to be a fact, but I have been told by several experienced investigative reporters that this is how it is done—that without some encouragement and promises of confidentiality and positive portrayal of the source, the leaks “dry up.” When I read books by these authors, I can often surmise who at least some of the sources are:  they’re usually the ones who are portrayed positively in other parts of the book—quid pro quo!

In other words, authors like Seymour Hirsh not only report the classified information given to them by sources, they develop, encourage, and in other ways facilitate the continuing flow of information—information which they know is classified and hence being illegally turned over to them—from their “criminal” sources.  An important difference is that Hirsh has a political agenda:  he publishes only information that serves that agenda.  Assange, on the other hand, seems willing to publish material equally critical of all governments.  For engaging in such journalism, Hirsh wins Pulitzer Prizes, gets invited to White House dinners and to lecture at schools of journalism which teach these methods.

Woodward is different in some respects and similar in others.  Whereas Hirsh’s sources tend to be beauracratic dissidents, Woodward relies on high ranking members of the administration who want their “spin” on the story he is publishing to a very wide audience.  Some of those politicians may be authorized to disclose the material, but certainly some are not, and much of the material is classified (though it probably shouldn’t be).

Both authors recognize the reality that many, if not most “state” secrets are designed not to protect the security of the nation, but rather to protect (and enhance) the reputations of the incumbent officials.  In this regard, I recall a joke that made the rounds of the Soviet dissident community when I represented several of them in the 1970s.  It is set during the period of the Stalin Show trials, when a dissident is arrested for calling Stalin a “fool.”  He wanted to defend himself by showing that Stalin was indeed a fool, but he was cut off by the judge who said: “If you were being charged with defamation, truth might be a defense.  
But it is not a defense to what you are being charged with.”  The dissident was taken aback and asked the judge, “If I am not being charged with defaming Stalin for calling him a fool, what am I being charged with?”  

The judge responded solemnly:  “You are being charged with revealing a state secret!”

Many current state secrets are really secrets whose disclosure would embarrass—properly embarrass—office holders.  Even the Solicitor General who argued for the Nixon Administration to prevent publication of the Pentagon Papers later acknowledged this reality.  That’s why selective leaking and selective withholding of classified material is so damaging to truth, accountability and historical accuracy. And that’s also why it is so prevalent in every administration.

Wikileaks is different precisely because Assange is not publishing selectively in order to tell a story favorable to one group or another.  He has no political agenda.  His goal is transparency for the sake of accountability.  With the exception of some names and addresses, Wikileaks has let the leaked documents speak for themselves.  He allowed the chips to fall where they may and they often fall on the head of the current office holders around the world.  

Prosecuting Wikileaks or its founder for “the crime” of publishing classified information, while at the same time rewarding -- with prizes, access, interviews, and status – “reputable” journalists and newspapers for doing essentially the same thing, would constitute selective prosecution.  American law, as distinguished for example from German law, generally permits selective prosecution of criminals, on the ground that resources are limited and prosecutors must have some discretion in deciding how to expend their limited resources.  In order to “get the most bang for the buck”, prosecutors are generally free to pick and choose among the many who violate broad, open-ended and often vague criminal statutes, such as tax, regulatory and criminal negligence laws.  They are not free to exercise this discretion in a partisan manner:  going after members of the opposing political party.  Nor can they properly do so on the basis of race, religion or other protected categories.  But they may select for prosecution the most visible or notorious offenders, since such prosecutions are likely to have the greatest deterrent effect on other potential law violators.  For example, Leona Helmsley, one of the most famous women in America, was indicted for tax evasion on April 15th!  

One area in which it is dangerous and wrong to permit selective prosecution is the publication of classified information by the media.  If the government can pick and choose the few it decides to prosecute among the many who publish classified information, it will have far too much power over the content of what the media reports. 48   The First Amendment recognizes no distinction between the patriotic and unpatriotic, the responsible and irresponsible, the favorable or unfavorable, media.  It was precisely these improper distinctions that were employed by the John Adams administration when it selectively enforced the Alien and Sedition laws against “Jeffersonians”, “Jacobins”, and other perceived enemies of the Federalists.  It took more than a century and a half for the Supreme Court to declare that although “.. the Sedition Act was never tested in this court, the attack upon its validity has carried the day in the ‘court of history’, citing “a broad consensus that the act was inconsistent with the First Amendment”.  (I was a law clerk when that opinion was issued in 1964.)

Not only has the verdict of history condemned the words of the Sedition Act, it has also condemned the selective manner in which it was enforced against certain journalists and newspapers but not others.  If there are to be any restrictions of freedom in the press, they should be applied uniformly.  If the publication of classified material is to be prosecuted, then all who publish it should be prosecuted, not only the marginal, the powerless, the “irresponsible” and the unpatriotic --- in the eyes of the government .  If all are prosecuted, there is the possibility of the self-correcting mechanism of democracy operating to change the law, by narrowing it to criminalize only those categories of currently classified information that truly endanger national security.  If untrammeled prosecutorial discretion is permitted, then the law can be kept as broad and overinclusive as it currently is, without fear that the New York Times will be caught in its web.  But if only the weak and the unpopular are selected for prosecution, the pressures for change will diminish.

Moreover, selective prosecution of only certain journalists who violate broad statutes will encourage some in the media to curry favor with the government, and the government to curry favor with certain media.  This is an unhealthy and dangerous relationship in a democracy in which the press is supposed to check the government and be independent of its control.

The exercise of some discretion is necessary under the statutory scheme that currently criminalizes the publication of classified material.  If all journalists who publish any classified material were to be prosecuted, there would be few left.  The New York Times and its publishers, editors, and national security reporters would be convicted felons, since the current statutes are written in the broadest of terms that invite the exercise of discretion, which has always been employed to immunize the mainstream media.

In a definitive history of this problem, the author, Gabriel Schoenfeld, argues that an appropriate balance must be struck and that neither the press nor Congress can be relied on to strike that balance.  Surprisingly, and wrongly in my view, he places his greatest reliance on the exercise of prosecutorial discretion and in the common sense of juries.  History has not vindicated this trust, especially in times of national turmoil and fear.  For me, a better democratic answer is for the courts to demand that legislatures enact clear, precise and extremely limited prohibitions on the real-time disclosure of only the most necessary of secrets.  These statutes must neither be overinclusive or underinclusive (as are current laws).  They should be capable of uniform and universal application that constrain the power of the government to pick and choose. Precise codification is not a perfect solution to an intractable dilemma, but it would be a significant improvement over the unacceptable current situation.  

In vibrant democracies there will always be tensions between the government’s need to keep secrets and the news media’s need to reveal them.  There will never be a perfect solution or an agreed-upon balance.  This is as it should be.  Constant tension between the government and the press is an essential requisite of our system of checks and balances.



                    Speech Codes
It is the great danger of top-down discretion in the area of regulating speech that led me to express one of the most controversial views a free speech advocate can hold:  I favor precise and narrow “speech codes” on university campuses, for much the same reason I favor precise and narrow national security codification.  As I will now explain, I favor such codes not because I want to see campus speech curtailed, but rather because I want to see it freer than it is today. 

My general views on free speech are well-known:  I am as close to an absolutist against censorship as anyone can reasonably be.  In my book Finding Jefferson I describe my position as “a presumptive absolutist”.

          “All speech should be presumed to be protected by the Constitution, and a heavy burden should be placed on those who would censor to demonstrate with relative certainty that the speech at issue, if not censored, would lead to irremediable and immediate serious harm.  No one should be allowed – in the famous but often misused words of Justice Oliver Wendell Holmes Jr. – falsely to shout fire in a crowded theater, but anyone should be allowed to hand out leaflets in front of the theater urging people not to enter because of potential fire hazards.”

I am particularly critical of the censorship of speech on university campuses in the name of “political correctness”.  As I wrote in Shouting Fire:

          Though [students who seek to censor “offensive” speech] insist on being governed by the laws of the outside world when it comes to their personal lives, railing against visitor rules and curfews, they want their universities to adopt rules that restrict their First Amendment rights of free speech in order to shield them from the ugly realities of prejudice.

Yet despite my strong opposition to censorship, I have surprised both my supporters and detractors by calling for precise and narrow “speech codes” on campuses.  My reasoning is simple: censorship is inevitable on all university campuses in extreme situations; if a professor used the “N” word to call on an African-American student in class – or comparable taboo words to call on a woman, a Jew, a gay or lesbian, a Latino, or an Asian-American – that teacher  would be fired (or at the very least disciplined).  There are other forms of expression as well that would simply not be tolerated in a university, public or private.  Precisely what those are we don’t know (recall Carlin’s 7 dirty words) but we will probably know it when we see it.  (Recall Justice Stewart on hard core pornography.)    Accordingly, there already exists a speech common-law (or more precisely a censorship common-law) at every university.  The issue, therefore, is not whether there is or should be any censorship of expression by universities.  We already know the answer to that question:  there is and there should be in those kinds of extreme cases.  I know of no responsible person or organization that would defend the right of a teacher to use the “N” word in calling on or routinely discussing African-American students.  The remaining question is whether it is better to leave the decision as to which words in which contexts are prohibited to the after-the-fact discretion of an administrator, or to decide in advance on a list or category of prohibited expressions.  In other words, is it more protective of freedom of expression to have a “censorship common-