law” to be applied on an ad-hoc basis by a dean, or to have a “censorship code” debated and agreed upon in advance by the equivalent of the legislative branch of the university – a student or faculty senate or some other representative body.

I strongly favor a narrow code to a potentially broad common-law, because it provides advanced fair warning and an opportunity to challenge the provisions of the code before they are enforced.  (That’s why I also favor a narrow code criminalizing the publication of only the most dangerous state secrets).

In 2002, there was an ugly racial incident at Harvard Law School that led to a campaign by some student groups for censorship of offensive speech.  The dean appointed a committee to recommend an approach to this delicate problem.  He put me on the committee because of my vocal opposition to censorship and my support for a maximalist position on freedom of speech.  My fellow committee members were surprised when I proposed that we try to draft a speech code.

“I thought you favored freedom of speech”, one of the libertarian student members said in frustration.

“I do,” I replied.  “That’s why I want a code.  I don’t trust the dean – or anyone else – to decide which speech should be prohibited.”

“No speech should be prohibited,” the student replied.

I then gave my examples of the professor and the “N” word.

“That’s different,” the student insisted.

“Then let’s try to codify exactly what else may be ‘different’”, I responded.

The committee spent more than a year trying to come up with a code of prohibited expressions, but it could not come to any agreement.  The “N” word itself could not be prohibited because a black professor had written a brilliant book entitled “Nigger: The Strange Career of a Troublesome Word”.  We tried to define the circumstances under which the “N” word could and could not be used, but we could not come to any agreement.  (One person suggested that the “N” word could be used by Blacks but not Whites.  Another suggested it could be used in a book but not in oral discussion.)  Nor could we agree on other disputed forms of expression, such as opinions regarding negative characteristics associated with particular groups.  At the end, we reported back that we could not come up with a code.  It was a useful experiment in democracy and accountability.  I would have preferred us to adopt a code limited to those instances of expression – such as a teacher calling a minority student by a negative racial or other term – which everyone agrees is unacceptable in a classroom setting.  This would have sent a powerful message that no other type of speech, regardless of how offensive it might be to some, can be prohibited.  If a particularly inappropriate expression that had not been included in the codification were then to be used, the committee could consider including it for future discipline, but it could not be the basis for imposing discipline for speech that took place prior to its inclusion in the codification.

The virtue of a code is that it completely occupies the area of sanctions.  It leaves no room for “common law crimes” or broad decanal discretion.  The vice of a code is that it is often underinclusive—it excludes conduct (or, in this case, speech) that is novel, or that was not considered by the codifiers.  In the area of freedom of expression, the virtue of such a limitation trumps its vice, at least in my view.  It is far better to have rules regulating speech that are underinclusive than overinclusive.  

In 2007, I taught a university-wide course with Professor Steven Pinker on the issue of Taboo.  The question posed by the course was whether there are any issues that are so delicate, sensitive, controversial, or disgusting that they should be treated as “taboos,” even on a university campus dedicated to open dialogue and the free exchange of views.  Most Americans are brought up to believe in freedom of expression, but almost everyone has at least one type of speech that he/she would suppress.  In our course, we searched for a theory of taboo – a description or prescription of genres of expression that lay outside the presumption of discussability and are, or should be, subject to suppression, censorship or tabooization.  Professor Pinker presented some evolutionary and psychological arguments for the existence and utility of some taboos, while questioning many of the taboos that currently seem to exist on university campuses.  I discussed the legal and moral arguments for and against any exceptions to the general presumption of free expression.  In the end, there was little agreement, except that there is and should be a difference between societal taboos, enforceable only by social sanction, and official governmental censorship, enforceable by the power of the state through the law.

We also agreed that notwithstanding the clear words of the First Amendment, Congress must have the power to make some laws banning the disclosure of some secrets for some time.  Finally, we agreed that there will never be a perfect balance struck between the public’s need to know and the government’s need to keep our enemies from knowing certain information.  The struggle to strike this delicate balance never stays won.  What history seems to teach us is generally to err on the side of more disclosure rather than more censorship, even when it comes to national security. 


Chapter 8:  Expressions that incite violence and disrupt speakers

Pornography consumed in private does not require a balancing of rights—as explained in Chapter 6—because no one should have the right to tell an adult what to read, view or hear in his home or in an enclosed area, like a theater, where no one is forced to go.  Disclosure by the media of national security secrets requires an exquisite, if not impossible, balancing of rights and interests, as explained in Chapter 7.  Expressions that incite violence or disrupt speakers—the subject of this chapter—also require a difficult balance between the rights of the speaker, and the rights of the potential victims of the incited violence and those of the disrupted speaker.  

There are two basic types of expression that incite.  The first is reactive—that is, the speaker so deeply upsets or offends the person (or persons) to whom he is speaking that he reacts to the speech by attacking the speaker.  This comes under the legal rubric of “fighting words”—words that cause the listener to fight back.  The second is pro-active—that is, the speaker urges his listener (or listeners) to commit violence and the listener complies by committing violence against a third person (or persons or institutions).  This comes under the legal rubric of “clear and present danger.”  

Early in my career I was involved in both of those types of cases.  

In the famous neo-Nazi march through Skokie, Illinois, the Nazi thugs deliberately decided to march—with anti-Semitic chants, signs and uniforms—through a Jewish community with a large number of Holocaust survivors.  Their goal was to provoke a negative reaction from those they were trying to offend.  The city banned the march on the ground that it would provoke a violent reaction from some survivors and others.  The Nazis sued.  To the surprise of many, and to the dismay of my mother, I urged the ACLU, on whose board I sat, to defend the right of the Nazis to march through Skokie and I urged the Jews to ignore them, in order not to give the Nazis the publicity they craved.  I don’t believe in the “fighting words” exception to the First Amendment.  I believe that the answer to deeply offensive speech is not violence, and that the law should not legitimate or justify violence by recognizing this exception.  Experience demonstrates that when victims respond to such offensive provocations by violence or censorship, the provocateurs win in the court of public opinion.  That’s what happened in Skokie.  

A small rag-tag band of Nazi thugs became the focus of worldwide attention as a result of being censored by Skokie.  They were interviewed by the media, their numbers and influence grew and they received a degree of legitimacy they had never previously had.  

I fully understood why the Holocaust survivors would be deeply offended, even possibly traumatized, by being forced to re-experience the spectacle of brown shirted Nazi wearing Swastikas invading their neighborhood, but I worried about the implications of a judicial decision authorizing censorship.  It could be used to justify the censorship of a march by the likes of Martin Luther King through a segregated community in the south; whose residents would be deeply offended by an integrated group marching through their community.  It’s no answer to point out that King was good or right and the Nazis are bad and wrong, because the First Amendment must always be content-neutral and not prefer good and right speech over bad and wrong speech.  That’s for the public to decide only after being presented with both sides without government interference.  That’s how the marketplace of ideas is supposed to operate in a democracy.  The government must protect bad, wrong and offensive speakers from those who would react violently.  Speech, not violence, is protected by the First Amendment.  

Moreover, if a violent reaction to speech is deemed to justify the censoring of that speech, then the threat to commit violence empowers “the victims” of provocative speech to serve as censors.  This “violence veto” should not be encouraged by the law.  Hard as it may be to arrest these “victims” rather than the provokers, the First Amendment requires that the government side with the “bad” speakers, rather than the “good” violence-threateners.   

In the end, the Nazis “won” the encounter in Skokie because good and decent people in that community decided to try to censor, rather than ridicule or respond to them.  

My experience with “clear and present danger” incitement also took place in a small community—the beautiful campus of Stanford University.  Shortly after arriving at Stanford in the fall of 1970 for what I expected would be a year of scholarly research as a fellow of the Center for Advanced Studies in the Behavioral Sciences, I was asked to represent a tenured English professor named Bruce Franklin, who was being fired for inciting students.  He had spoken at an anti-war rally directed against the Stanford Computation Center, which was involved in war-related research.  His speech including the following:  “[W]hat we’re asking is for people to make that little tiny gesture to show that we’re willing to inconvenience ourselves a little bit and to begin to shut down the most obvious machinery of war, such as—and I think it is a good target—that Computation Center.”  Following shouts of “Right on,” a group of listeners marched on the Computation Center and physically shut it down, causing some damage.  Franklin did not join the demonstrators himself; he watched from a safe and discreet distance. The police eventually cleared the building and ordered the demonstrators to disperse.  At this point, Franklin joined the crowd and protested the order.  He walked up to the police, argued with them that the dispersal order was illegal, and urged the crowd to remain.  Many did, and the police used force to affect their order.  Minor injuries were sustained by some demonstrators.

Later that night a rally was held on the campus at which Franklin gave the closing speech.  In it he advocated “the methods of people’s war.”  There was some dispute about whether he explained what he meant by this term.  He claimed that he told the demonstrators that “people’s war meant that they should go back to the dormitories, organize people into small groups, and talk with them, or play football, or whatever, as late into the night as possible.”  Within a few hours of Franklin’s speech there was more violence and this time several people were seriously hurt.  

The next day President Lyman announced that Professor Franklin would be fired from his tenured position on grounds of “substantial and manifest neglect of duty and a substantial impairment of his appropriate functions within the University community.”

Franklin demanded a formal hearing, and a faculty advisory committee of seven full professors was convened to consider the charges and recommend an appropriate sanction.  It was difficult to find seven professors who did not despise Franklin—and with good cause.  

I persuaded the local ACLU chapter to become involved but I, and my research assistant Joel Klein, took the lead in defending Franklin.  

Word quickly spread around the Stanford campus that I had gotten the ACLU into the case.  I was criticized for my intrusion into the affairs of my host university.  President Lyman went on the radio to attack me:

     It is a myth that all speech is constitutionally protected.  No constitutional lawyer in the land—no, not even Mr. Dershowitz, the Harvard law professor come to Stanford to save us all from sin—not even Mr. Dershowitz could make such a sweeping claim.

I responded with my own statement in the Stanford Daily:  

     There are important civil liberties issues at stake in the Franklin firing.  If Dr. Lyman wants to challenge my view of the Constitution or civil liberties—and those of the ACLU—I invite that challenge, on its merits.

Lyman rejected my invitation to debate and continued to attack me—both personally and through his surrogates—in highly personal terms.  The hostility toward me and toward the ACLU spread quickly among the established faculty.  Not surprisingly, it soon reached the Faculty Committee that was considering the Franklin case.

We filed a brief on behalf of the ACLU urging Stanford, which is a private university, to apply the spirit of the First Amendment to Franklin’s case.  The committee agreed and said they were applying First Amendment standards, but it ruled, in a divided vote, that Franklin’s speeches violated those standards.  They found that he “did intentionally write and urge” students and other to “occupy the computation center illegally,” to “disobey the order to disperse” and to “engage in conduct which would disrupt activities of the university and threaten injury to individuals and property.”

Following the Franklin firing I gave a lecture on the implications of the case.  I predicted that Franklin himself would soon be forgotten because his message would be rejected in the free marketplace of ideas.  But the Committee’s decision would be long remembered as a leading precedent in the jurisprudence of universities.  

I concluded my lecture by pointing an accusing finger at some of the faculty who pretended that the Franklin case raised no important civil liberties issues:

     How often have I heard the absurd remark that Franklin is being fired for what he “did,” not for what he “said,” without a recognition that this quibble doesn’t’ hide the fact what he “did” was to make speeches.  How often I have heard the statement that this case does not involve “academic freedom,” it is simply an employer firing an employee for disloyalty—as if a requirement of loyalty and academic freedom were compatible.  [T]he true test of a genuine civil libertarian is how he responds to a crisis close at hand.  


Expressions that deliberately disrupt a speaker with whom one disagrees

The Bruce Franklin case also included this alleged exception to the First Amendment—namely, that although there is a constitutional right to heckle speakers (at least in some context), there is no such right to silence a speaker by shouting him down.  When Henry Cabot Lodge came to speak at Stanford in January 1971, he was shouted down with cries of “pig” and “war criminal,” and then drowned out by continuous chanting and clapping.  Eventually, the program had to be canceled (just as a similar program had been canceled several years earlier at Harvard.)  Franklin participated in the shouting but denied complicity in the chanting and clapping that brought the program to an untimely end.  

The ACLU brief that I filed vigorously disagreed with Franklin’s contention that there is a “right” to silence a speaker who is deemed to be a “war criminal”:
     “[I]f the Board concludes that Professor Franklin intentionally engaged in concerted activity designed to silence Ambassador Lodge—that is, to prevent him from speaking at all—then it is the Civil Liberties Union’s position that some discipline would be appropriate.”

It defended, however, Franklin’s right to heckle, boo, and express displeasure at the speaker of disagreement with his views.  If members of the audience may cheer and applaud approval, they must also have a coextensive right to demonstrate disapproval:

     “The rule of thumb [is] that the speaker’s entire address must be allowed to be heard, but it may be frequently interrupted, so long as he is permitted to continue a short time after each interruption.  This rule does not make for the most comfortable or effective oratory, but the American Civil Liberties Union believes it to be the constitutionally required balance…”

The Stanford Committee followed the ACLU guidelines and concluded that Franklin had not tried to prevent Lodge from speaking.  

Forty years later, I tried to get the Southern California branch of the ACLU to apply these same guidelines to another case involving the disruption of a speaker who had been invited by a university—this time the University of California at Irvine, a public university.  But its leaders refused to do so, because they disapproved of the speaker and favored the politics of those who were trying to silence him.  First, some background. 

There is a growing international campaign to prevent pro-Israel advocates, who have been invited to speak at universities, from delivering their speeches. The method used to silence these speakers and preclude their audiences from hearing their message is exemplified by what occurred at the University of California at Irvine. 

Michael Oren -- a distinguished scholar and writer, a moderate supporter of the two-state solution, and now Israel's Ambassador to the United States -- was invited to speak. The Muslim Student Union set out to prevent him from delivering his talk. Here is the way Erwin Chemerinksy, Dean of the law school, described what the students did:

     “The Muslim Student Union orchestrated a concerted effort to disrupt the speech. One student after another stood and shouted so that the ambassador could not be heard. Each student was taken away only to be replaced by another doing the same thing.”


Chemerinsky understates what happened, as anyone can see by watching a video of the event, available online (http://www.youtube.com/watch?v=7w96UR79TBw).  This was more than a "concerted effort to disrupt the speech." It was a concerted effort to stop it completely -- to censor Oren's right to speak and his audience's right to hear him. The efforts to disrupt succeeded; the effort to stop ultimately failed. Moreover, there is undisputed evidence that there was a well-planned conspiracy to censor Oren's talk.

The students were disciplined by the university for their actions, though the nature and degree of the discipline has been kept confidential. Campus sources have characterized it as a "slap on the wrist." Since the students had to be arrested to prevent the speech from being drowned out, the District Attorney, quite understandably, commenced a criminal investigation. After learning of the careful planning that went into the concerted effort to prevent Oren from speaking, the DA filed misdemeanor charges against those who were involved. 


This decision resulted in an outcry by radicals, many of whom favor censorship of pro-Israel speakers. In a letter to the DA signed by many well-known anti-Israel zealots, as well as by the two leaders of the local ACLU, the incident was described as merely a protest: 

     “the students non-violently and verbally protested a university-invited speaker.  The students left the event peacefully ….” 49   


Then, in an effort to blame the victims, the letter pointed the finger at pro-Israel students who wanted to listen to Oren speak claiming -- quite falsely -- that the Muslim Student Union censors "conducted themselves in less of a disruptive manner than some of the counter-protestors..." Sounds as if the Muslim Student Union deserved a civil liberties award, while the students who came to listen to the invited speaker—“the counter-protestors”—deserve to be condemned.  In a more recent letter the ACLU leaders claim that “the students’ intent was not to censor the speaker….”

The students themselves have been more honest about their intentions than the ACLU leaders.  .  For instance, one student leader refused to acknowledge that Mr. Oren had First Amendment rights of his own by interrupting him and shouting, “Propagating murder is not an expression of free speech!”  (Shades of Bruce Franklin!)  Another student was caught on video telling a crowd assembled outside the event that “we pretty much shut them down”.

The fact that radical anti-Israel zealots would support censorship of a pro-Israel speaker comes as no surprise. But the fact that the letter of support was signed by two ACLU leaders should shock all civil libertarians and supporters of the ACLU. I have been a supporter of the ACLU for half a century and was a national board member. In addition to supporting the right of Nazis to march through Skokie, I have defended the right of the most virulent anti-Israel speakers to participate in the marketplace of ideas. The ACLU policy has always been to oppose concerted efforts to prevent speakers from delivering their remarks, as evidenced by the brief filed in its name in the Franklin case.  While supporting sporadic heckling and jeering that merely demonstrates opposition to the content of the remarks, the ACLU has always condemned type set of concerted efforts to silence invited speakers that occurred at Irvine. 

Yet signatories of the letter -- which never once criticizes the censoring Muslim Union students while condemning those who wanted to hear the speaker -- include "Chuck Anderson," who identified himself as President ACLU Chapter, Orange County and Chair, The Peace and Freedom Party, Orange County;" (a hard left anti-Israel group), and "Hector Villagro," who identified himself as "Incoming Executive Director, ACLU of Southern California." 


Dean Chemerinsky, while opposing criminal prosecution, made a point to condemn the censoring students:

     “The students' behavior was wrong and deserves punishment. There is no basis for the claim that the disruptive students were just exercising their First Amendment rights. There is no constitutional right to disrupt an event and keep a speaker from being heard. Otherwise, any speaker could be silenced by a heckler's veto. The Muslim students could have expressed their message in many other ways: picketing or handing out leaflets outside the auditorium where Ambassador Oren was speaking, making statements during the question and answer period, holding their own events on campus.”


The ACLU leaders, on the other hand, seemed to justify the actions of the censoring students while limiting their condemnation to the pro-Israel students who wanted to hear the speaker. 

After being criticized for supporting censorship, Villagro sought to justify his signing the letter by the following "logic:" 

     “The district attorney's action will undoubtedly intimidate students in Orange County and across the state and discourage them from engaging in any controversial speech or protest for fear of criminal charges.”


The opposite is true. If these students had been let off with a slap on the wrist from the University, that would encourage other students around the nation and the world to continue with the efforts to prevent pro-Israel speakers from delivering their speeches.   Indeed, even after these students were disciplined, other students tried to shut down several Israeli students, who had served in the Israeli Army, from recounting their experiences.  Had the school administered appropriate discipline, I could understand an argument against piling on with a misdemeanor prosecution, but the red badge of courage given to them by the college only served to encourage repetition of their censorial conduct.  



The ACLU should be supporting a clear line between occasional heckling and outright censorship. The ACLU leaders who signed the letter are on the wrong side of that line and should not be speaking for the ACLU.
The prosecution of those who tried to censor Ambassador Oren proceeded.  The prosecutors asked me to testify on their behalf as an expert witness on the issues relating to freedom of expression in the campus context.  I was tempted but ultimately decided it would be better for them to use a witness with less personal involvement in the matter:  I too had been shouted down by anti-Israel groups—on that very campus and on others.  The jury convicted the students and they were sentenced to probation and a fine.  


There were some who criticized the prosecutor for bringing these charges, but I defended him on the ground that prosecuting these student censors was his duty in protecting the First Amendment:


     It was imperative…that a public prosecutor apply the law to these students, because to do otherwise would be to tolerate, if not encourage, conduct that would undercut the constitutional rights of an invited speaker.  This is especially true because the University of California is a state-run institution to which the First Amendment applies in full force.  A prosecutor has the obligation to protect the First Amendment, especially if the university has imposed discipline that is inadequate to assure that censorial conduct will be deterred.  Moreover, these students must be made to understand that their conduct is not only morally indefensible; it is criminal.  

     The same would be true if Jewish students were to try to prevent an anti-Israel speaker from presenting the case against Israel.  No student, no matter how strongly they feel that their view is the only correct one, has the right to prevent the open marketplace of ideas from operating on a university campus, as these ten students tried to do.  

     The successful prosecution of the Irvine Ten will not “chill” free speech rights of hecklers.  No one should or would be prosecuted for simply booing the content of a speech, leafleting a speaker, holding up signs in the back of the auditorium, conducting a counter event or demonstration.  It was these young criminals who were trying to chill, indeed freeze, the constitutional rights of the speaker and those who came to hear him.  They should not be treated as heroes by anyone who loves freedom and supports the First Amendment.

It was a good day for the First Amendment when the prosecutor decided to apply the law to their censorial conduct.  It was another good day for the First Amendment when the jury appropriately convicted them.  Sometimes it takes tough measures to enforce the First Amendment against extremists who believe they own the only “truth” and who seek to silence other views.  



Chapter 9:  The Right to Falsify History:  Holocaust Denial and Academic Freedom

In some European countries, (particularly Germany, Austria and France), it is a crime to deny the Holocaust.  In other countries, such as Turkey, it is a crime to claim that the Turks engaged in genocide against the Armenians, even though it is an historical fact recognized by scholars around the world.  

Under our First Amendment, no one can be punished either for denying or proclaiming that an historical event occurred.

Several years ago I became embroiled in a heated controversy with Professor Noam Chomsky over the issue of Holocaust denial and the proper role of a civil libertarian in defending the right of Holocaust deniers, without defending the substance of their claims.  


In the 1970s a Frenchman named Robert Faurisson, who was an obscure lecturer on French literature at the University of Lyon, began to dabble in Holocaust denial.  He wrote a book—and gave talks—in which he mocked Holocaust victims and survivors as perpetrators of a hoax.  The Holocaust, according to Faurisson, “never took place.”  The “Hitler gas chambers” never existed.  “The Jews” bear “responsibility” for World War II.  Hitler acted reasonably and in self-defense when he rounded up the Jews and put them in “labor camps,” not death camps.  The “massive lie” about genocide was a deliberate concoction begun by “American Zionists”—in context he obviously means Jews.  The principal beneficiary of this hoax is “Israel,” which has encouraged this “enormous political and financial fraud.”  The principal victims of this “fraud” have been “the German people” and the “Palestinian people.”  Faurisson also called the diary of Anne Frank a “forgery.”

Following the publication of Faurisson’s book, the lecturer received threats from irate survivors.  The University of Lyon, claiming that it could not guarantee his safety, suspended him for a semester.  

Chomsky sprang to Faurisson’s defense, not only on the issue of free speech, but on the merits of his “scholarship” and of his “character.”  Chomsky signed a petition that characterized Faurisson’s falsifications of history as “findings” and said that they were based on “extensive historical research.”

I too defended Faurisson’s right to express his views, but I also checked his “historical research” and found it to be entirely faked. He made up phony diary entries, omitted others that disproved his “research,” and distorted the historical record.  50    I exposed Faurisson’s deceptions in my own writings, while continuing to defend his right to rewrite history.    




Chomsky wrote an essay that he allowed to be used as a foreword to Faurisson’s next book, about his career as a Holocaust denier!  In this book, Faurisson again calls the gas chambers a lie and repeats his claims about the “hoax” of the Holocaust.  

A few years later, after it became unmistakably clear that Faurisson was consciously lending his name to all sorts of anti-Semitic and neo-Nazi groups, Chomsky repeated his character reference:

     “I see no anti-Semitic implications in denial of the existence of gas chambers, or even denial of the Holocaust.  Nor would there be anti-Semitic implications, per se, in the claim that the Holocaust (whether one believes it took place or not) is being exploited, viciously so, by apologists for Israeli repression and violence.  I see no hint of anti-Semitic implications in Faurisson’s work…”  (emphasis added)
     [Add Mearsheimer]

When this statement was quoted in the Boston Globe, I wrote the following letter to the editor:  

     “While some may regard Chomsky as an eminent linguist, he does not understand the most obvious meaning of words in context.  To fail to see any “hint of anti-Semitic implications” in Faurisson’s collective condemnation of the Jewish people as liars, is to be either a fool or a knave.  
                         …

     Chomsky’s actions in defending the substance of Faurisson’s bigoted remarks against valid charges of anti-Semitism—as distinguished from defending Fuarisson’s right to publish such pernicious drivel—disqualify Chomsky from being considered an honorable defender of the “underdog.”  The victims of the Holocaust, not its defenders or deniers, are the underdogs.”

Chomsky responded by arguing that Faurisson was an anti-Zionist rather than an anti-Semite, because he denounced “Zionist lies.”  

Following this exchange, I challenged Chomsky to a public debate on the issue of whether it is anti-Semitic or anti-Jewish to deny the Holocaust.  This was his answer:  “It is so obvious that there is no point in debating it because nobody believes there in an anti-Semitic connotation to the denial of the Holocaust” (emphasis added).  

One is left to speculate about Chomsky’s motives—political and psychological—for becoming so embroiled in the substantive defense of the writings of a neo-Nazi Holocaust denier.

The civil liberties-free speech rationale does not work for Chomsky:  civil libertarians who defend the free speech of neo-Nazis do not get into bed with them by legitimating their false “findings” as having been based on “extensive historical research,” and by defending them—on the merits—against well-documented charges of anti-Semitism.  Moreover, providing a forward for a book is joining with the author and publisher in an effort to sell the book.  It is intended not merely to leave the marketplace of ideas open.  It is intended to influence the marketplace substantively in favor of the author’s ideas.  This is not the defense of free speech.  It is the promotion of Holocaust denial.  

Several years after my encounter with Chomsky, I was asked to defend a neo-Nazi Holocaust denier named Matthew Hale, who was the head of an anti-Semitic group that called itself “The Church of the Creation”.  He had been denied admission to the Illinois Bar because of his neo-Nazi views.  

Hale was invited to appear on the Today Show to be interviewed by Katie Couric.  I was asked to explain why I would even consider representing such a horrible racist and anti-Semite.  Couric began by asking Hale to describe his views “in a nutshell.”  He went on about how non-Europeans—by which he means Blacks and Jews—were destroying the “white race” and how he was going to change that if he were admitted to the bar. 

Couric then asked me why I believed a man with Hale’s views should be allowed to become a lawyer.  

     KC:  Mr. Hale should be allowed to practice law…why?

     AD:  Well first of all I am not a supporter of Mr. Hale.  You asked about his views in a nutshell.  That’s where his views belong, in a nutshell.  They are despicable, revolting views.  But what I’m concerned about is the precedential effect of giving character committees the right to determine who shall and who shall not have the right to practice law on the basis of ideology and belief.  Remember character committees were invented to originally keep out Blacks, Jews, gays, women, leftists…I just don’t want to see a resurrection of character committees probing into the ideology of people like Mr. Hale.  If I take his case, and he’s asked me to represent him, I told him this and he knows this.  All the fees will be contributed to anti-racist organizations which will fight the ideology of bigots like him.  I hope the American public listening to him would reject his ideas in the marketplace but not through censorship of the kind that the character committee is trying to practice.


     KC:  But simply espousing these views, couldn’t that lead to violence, by other individuals?

     AD:  Well there is no question how our Constitution strikes that balance.  Reading the work of Marx can lead to incitement.  Reading the Bible can lead to incitement.  But we don’t draw the line at the espousal of views.  We draw it at incitement or violence itself and we don’t want to have a different standard for racists than we do for other people.  

Couric then turned back to Hale:

     KC:  Ok, you talk about your enemies, Mr. Hale, and among them are Jews.  Do you see the irony that you hate Jews and yet you are calling on Mr. Dershowitz to help you?

     MH:  Well the fact of the matter if having a “Dershowitz” in this equation has brought our church an incredible amount of publicity and as a minister in my church, it is my obligation to bring about as much publicity as possible.  

                         …

     KC:  But you are using a Jewish lawyer when it’s convenient and serves your purpose?

     MH:  Well certainly its serving his purposes too and the ends justify the means.

     AD:  My purposes are the purposes of the First Amendment. Mr. Hale, you will rue the day that you ever thought that I would give you publicity because I will not stop condemning your organization and you know that the only condition that I will accept your case is because you have given me the freedom to argue with you, to condemn you and to defeat you in the marketplace of ideas.

     MH:  That’s fine.

     AD:  The only publicity you will get from me is the most negative kind of publicity because I say, your ideas belong in a nutshell because they are nutty ideas, they are reprehensible ideas…

     MH:  So are those of the Jews.

     AD:  And I have faith in the American people that they will reject your ideas in the marketplace of ideas and you should not have the benefit of censorship so that you can stand up and proclaim your views. You know, if the character committee hadn’t kept him out, nobody would have heard of this despicable person.  It is the character committee who has given him publicity just like the march in Skokie…you know the Nazis would have been able to march through Skokie, it would have been a one-day story, but for the censorship.  Censorship creates publicity.  What we are doing is hoping to give you the worst and most negative kind of publicity so people will reject your ideas.  

     KC:  So do you still want Mr. Dershowitz to represent you?

     MH:  The fact of the matter is that we are confident that if people would consider our views, they will agree with them.


     AD:  Nobody is afraid of your views.  As long as you don’t violate the law your views will be defeated in the marketplace of ideas 

Ultimately, I did not represent Hale because he refused to allow me to donate his legal fee to the ADL, NAACP and other organizations that seek to combat his racist views in the marketplace of ideas.  He lost his case and is now in prison for trying to arrange a “hit” on the judge who ruled against him.  

Following Hale’s imprisonment, I received a call from the FBI advising me that Hale may have put out a hit on me as well.  For several weeks, FBI agents monitored and protected me.  So much for Matthew Hale merely believing in freedom of speech!  This was neither the first nor the last time I was physically threatened for what I believe.  Free speech is anything but free in the real world of high passions and violent tempers.  

It is imperative that those of us who defend the rights of bigots and others to express horrible views go out of our way to challenge these bad views in the marketplace of ideas.  It is a commonplace among civil Libertarians that the appropriate answer to bad speech is good speech, not censorship.  We must provide that good speech as we defend the bad speech.

I had the opportunity to do just that when the actress Vanessa Redgrave had a scheduled performance with the Boston Symphony Orchestra cancelled because of her controversial political views and activities.  I defended her right to perform but challenged her to a debate about her outrageous political views.  She declined because she was on the Central Committee of the Revolutionary Workers Party – a British Stalinist group – and the Party had to approve in advance everything she said in public.  I then explained the hypocrisy of her complaints about being “blacklisted” for her political views and activities, while she herself, and her Party, advocated the blacklisting of  others.

In 1978, Redgrave had offered a resolution demanding that the British Actors Union blacklist Israeli artists and boycott Israeli audiences.  The resolution included a “demand” that “all members working in Israel terminate their contacts and refuse all work in Israel.”  Several years later, she justified as “entirely correct” the blacklisting of Zionist speakers at British universities.  And she has praised the ultimate form of censorship:  the political assassination of Israeli artists, because they “may well have been enlisted ... to do the work” of the Zionists.

Redgrave herself has used her art “to do the work” of terrorists.  In 1977, she made a film calling for the destruction of the Jewish state by armed struggle.  She has personally received training in terrorism at camps from which terrorist raids were staged.  She advocated the assassination of Nobel Peace Prize winner Anwar Sadat.  After playing her controversial role as concentration camp survivor in Arthur Miller’s 1980 teledrama “Playing for Time” she traveled around the world arguing that her selection for the role constituted a propaganda victory against Israel.

In 1982, the Boston Symphony Orchestra hired Redgrave to narrate several performances of Stravinsky’s opera-oratorio “Oedipus Rex”.  There is some dispute over whether she was hired entirely because of her unquestionable acting ability or also because of her political “courage.”  As soon as the decision was announced, there was outrage among some of the orchestra’s musicians, subscribers and board members.  Some musicians suggested that they would exercise their own freedom of association by refusing to perform with a terrorist collaborator who justified assassination of artists.

At the end, the orchestra decided – wrongly, in my view – to cancel the performances of “Oedipus Rex”.  They offered to pay Redgrave the money she would have received if the show had gone on.  Redgrave declined the offer and sued the orchestra for breach of contract, seeking $5 million in damages.  She claimed that the effect of the cancellation was that she was “blacklisted” by the Boston Symphony Orchestra and could no longer find appropriate work.
The orchestra board responded that Redgrave has earned more money since the cancellation than before it, and that if anyone has refused to hire her, it is because she has used her art to serve the political ends of terrorism.  The board has also proved that Redgrave has turned down roles such as that of Andrei Sakharov’s wife in an HBO production because she believed the film might be seen as “anti-Communist propaganda”.

Redgrave’s supporters threw a fundraiser for her.  I prepared and distributed a leaflet that provided the facts to those attending and urged them to ask Redgrave “to explain her hypocrisy”.  Several members of the audience were surprised to learn of her views on blacklisting Israeli artists.  Others said they knew of Redgrave’s selective condemnation of blacklisting but didn’t care, because – as one woman put it – “anything is fair in the war against Zionism.” 51 

In the end, the case was settled and Redgrave persisted in her hypocrisy.  I was comfortable in my role defending her rights while exposing her wrongs.

Not everyone understands this distinction.  My own mother insisted that I was “helping” Nazis and terrorists when I supported their right to speak, even while condemning what they were saying.  Far better educated people than my mother also claimed not to understand.  In a debate in Canada on laws criminalizing Holocaust denial, I took my usual position in favor of freedom of speech:
     I regret to say this, but I think that Holocaust denial speech is not even a close question.  There is no persuasive argument that I can think of in logic, in law, in constitutionality, in policy, or in education, which should deny [anyone] who chooses to the right to take whatever position he wants on the Holocaust.  The existence of the Holocaust, its extent, its fault, its ramifications, its political use are fair subjects for debate.  I think it is despicable for anybody to deny the existence of the Holocaust.  But I cannot sit in judgment over the level of despicability of anybody’s exercise of freedom of speech.
     Of course I agree that sticks and stones can break your bones, and words can harm you and maim you.  That’s the price we pay for living in a democracy.  It’s not that speech doesn’t matter.  If speech didn’t matter, I wouldn’t devote my life to defending it.  Speech matters.  Speech can hurt.  That’s not why those of us who defend free speech, particularly free speech of this kind, do it.  We do it because we don’t trust government.  

In response, Judge Maxwell Cohen said that anyone who holds such views “ought not to be a law teacher.”  I disagree.  Professors must defend the right of those they disagree with to express wrongheaded views, while insisting on their own right—indeed obligation—to express disagreement with such views.  

When Yasser Arafat died in 2004, I was asked by Palestinian students at Harvard to represent them in the failed efforts to fly the Palestinian flag from a flagpole in the Harvard Yard.  They knew my negative views of their hero—I had called Arafat’s death “untimely,” because if he had only died five years earlier, the Palestinian Authority might well have accepted the Clinton-Barak peace offer—but they also knew my views on freedom of speech.  I agreed to represent them, as long as they understood that I would continue to criticize both Arafat and those who considered him a martyr.  They agreed and we got Harvard to allow them to fly their flag.  

Not everyone—even university professors—seem to understand this important distinction.  I encountered this intellectual muddle-headedness in 2010 when I received an honorary doctorate from Tel Aviv University and was asked to deliver a talk on behalf of the honorees.  In my talk, I defended the right of professors at the University of Tel Aviv to call for boycotts against Israeli universities.  This is part of what I said:   

     Israeli academics are free to challenge not only the legitimacy of the Jewish state but even, as one professor at this university has done, the authenticity of the Jewish people. Israeli academics are free to distort the truth, construct false analogies and teach their students theories akin to the earth being flat—and they do so with relish and with the shield of academic freedom. So long as these professors do not violate the rules of the academy, they have the precious right to be wrong, because we have learned the lesson of history that no one has a monopoly on truth and that the never-ending search for truth requires, to quote the title of one of Israel's founders' autobiographies, "trial and error." The answer to falsehood is not censorship; it is truth. The answer to bad ideas is not firing the teacher, but articulating better ideas which prevail in the marketplace. The academic freedom of the faculty is central to the mission of the university.


After defending their right to freedom of expression, I exercised my own right to express my own views about the merits and demerits of their ideas:

     But academic freedom is not the province of the hard left alone. Academic freedom includes the right to agree with the government, to defend the government and to work for the government. Some of the same hard leftists who demand academic freedom for themselves and their ideological colleagues were among the leaders of those seeking to deny academic freedom to a distinguished law professor who had worked for the military advocate general and whose views they disagreed with. To its credit, Tel Aviv University rejected this attempt to limit academic freedom to those who criticized the government.

     Rules of academic freedom for professors must be neutral, applicable equally to right and left. Free speech for me but not for thee is the beginning of the road to tyranny.


Following my talk a group of Tel Aviv professors accused me of McCarthyism and of advocating censorship.  The Chronicle of Higher Education “reported” that I was pressuring the University to take action against professors who support boycotts against Israeli Universities.  I responded:  

     I continue to oppose any efforts by any university to punish academics for expressing anti-government views. But I insist on my right to criticize those with whom I disagree. Surely that is the true meaning of academic freedom. I urge your readers to read the full text of my controversial talk at Tel Aviv University. 52 

Another example of the confusion between defending someone’s right to speak and reporting that person’s views on the merits of his speech arose in the context of efforts by Norman Finkelstein, a failed academic who had been fired from several universities, to obtain tenure at De Paul University.  Finkelstein had never published any scholarship.  Moreover, he had been dismissed by Brooklyn College for abusing students who disagreed with his extremist views and had engaged in sexist behavior at DePaul.  Not exactly a strong record for tenure.  But he had something going for him.  He was so vitriolically anti-Israel, that he had many radical supporters who cared more about his politics than his scholarship.  He also argued that most people who claim to be victims of the Holocaust—including Elie Wiesel—were “frauds” and “liars” and that the Holocaust itself was being exaggerated for political and financial reasons.  By falsely claiming that those opposed to his tenure were motivated by his political views on Israel and the Holocaust, rather than his lack of scholarship, he hoped to bestow on himself the mantle of victimhood to a conspiracy of Zionist-McCarthyites.  I exposed his tactic in the Wall Street Journal by comparing it to the ploy used by Mary McCarthy’ fictionalized failed academic who, realizing he wouldn’t get tenure, became a communist so that he could claim that he was being denied tenure because he was a Red rather than a lousy scholar:

     “Facing tenure denial, Mr. Finkelstein opted for a tactic that fit the times. He expressed views so ad hominem, unscholarly and extreme that he could claim the decision was being made not on the basis of his scholarship, but rather on his politics.” 53 

     The final part of Mr. Finkelstein’s quest for tenure is to blame his tenure problems on “outsiders.” He claims that I intruded myself into the DePaul review process, neglecting to mention that I was specifically asked by the former chairman of DePaul’s political science department to “point [him] to the clearest and most egregious instances of dishonesty on Finkelstein’s part.” I responded by providing hard evidence of made-up quotes and facts — a pattern that should alone disqualify him from tenure…


     Like the character in the “Groves of Academe,” Mr. Finkelstein generated protests by students and outsiders. He has encouraged radical goons to email threatening messages; “Look forward to a visit from me,” reads one. “Nazis like [you] need to be confronted directly.” He has threatened to sue if he loses — while complaining about outside interference. No university should be afraid of truth — regardless of its source — especially when truth consists of Mr. Finkelstein’s own words.


He did not receive tenure.  I’m proud of the small role I played in helping to maintain academic standards at DePaul University by exposing Finkelstein’s lack of scholarship and the sordid tactic he tried to use to capitalize on that failing.  My actions in exposing Finkelstein were completely consistent with my commitment to free speech and academic freedom.  Finkelstein continues to lecture at universities around the world—including some that have refused to invite me—but he no longer has the academically undeserved imprimatur of DePaul University.



Academic freedom is not limited to faculty.  It extends to students as well, and no professor has the right to propagandize his captive classroom audience or to grade them down if they disagree with his political opinions.  But it is sometimes difficult to distinguish between acceptable teaching and unacceptable prostheletizing.  This too is an area where rights may be in conflict and a delicate balance, always skewed in favor of speech, is required.  


Chapter 10:  Speech that Conflicts with Reputational and Privacy Rights  

Defamation:  “He that filches from me my good name:”

Whenever a Holocaust denier or defamer of the Jews spews out his poison, I get calls and emails demanding that I sue them for defaming the Jewish people or committing a “blood libel.”  But under our First Amendment only an individual can be defamed.  There is no such thing as group libel.  In other words you can say all you want about “the Jews,” “the Democratic Party,” “the Blacks,” “the Gays,” and “the women”—obnoxious as these generalizations might be.  An anti-Semite is constitutionally free to spread the blood libel against the Jewish people or the Jewish religion, so long as he is careful not to accuse a specific individual of killing Christian children for their blood.  This is not true in other countries that do have group libel laws and other rules prohibiting racist statements.   Not so under our First Amendment.  

In addition to the defamatory statement being directed against a specific individual, it must also cast him in a negative light.  That used to be easier to define than it is today.  For example, when a newspaper in the segregated Deep South made a typographical error and described a white man as a “colored gentleman,” instead of a “cultured gentleman,” that error was defamatory, since describing a white person as colored clearly could damage his career and hurt his position.  Today, no court would consider it defamatory to mistakenly report on someone’s race.  It’s a little more complicated when it comes to sexual preference.  If a newspaper were to characterize a heterosexual politician as gay, that might well hurt his electoral chances, but courts would be reluctant today to rule that being called “gay” is an insult.  The same is true of other former words of opprobrium that have lost or decreased their negative connotations over the years.  

In addition to being damaging, a defamation must also be untrue.  This wasn’t always the case, and Thomas Jefferson successfully fought to limit defamations to untruthful statements about an individual. 54 

If the individual defamed is a public figure, such as a politician, celebrity or anyone else who has sought the limelight, yet another hurdle must now be overcome.  Since the Supreme Court’s 1964 decision in New York Times v. Sullivan, a defamation action can be brought by a public figure only if the false statement was made with “actual malice—that is knowledge that it was false or with reckless disregard of whether it was false or not.”

I was Justice Goldberg’s law clerk when the Supreme Court rendered that precedent-shattering decision.  Goldberg told me that he was concerned that the daunting requirements of the case would make it open season on public figures and would lower the standards of journalistic ethics.  He himself, as a public figure, had been defamed on several occasions and it had stung him.  Nonetheless, he concurred in the decision and wrote the following stirring words about the freedom to criticize:

     “The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel.”

Since I am a public figure under the law, I have been defamed on numerous occasions, especially on the internet.  The libels and slanders have been both personal and political.  Although these defamations were published with actual malice, I have not sued, though I have often been tempted.  (I once threatened to sue when a journalist made up a false racist and sexist quotation and attributed it to me; the newspaper investigated, agreed with me and made a contribution to my favorite charity).  

Many years after New York Times v. Sullivan, I myself was charged with defamation—indeed criminal defamation—for exercising my own freedom of speech to criticize a judge for an opinion she wrote.  This certainly made me appreciate our First Amendment.  Here is the story:

One day in my office I opened an envelope and saw a notice that an Italian prosecutor in the city of Turin had initiated a criminal investigation against me. I had no idea what she could be referring to. The letter stated that I had committed the alleged act in the city of Turin on January 27th, 2005. I checked my calendar and discovered that I was teaching students at Harvard Law School on that day and then attending a lecture by a prominent federal judge. I could not possibly have been in Turin or engaged in any criminal act there. Yet I soon discovered that I was being charged with criminal libel for statements I had made in an interview with an Italian journalist over the telephone. The journalist was in New York. I was sitting at my desk in Cambridge. But the interview was published by the newspaper La Stampa in Turin on January 25th, 2005. Accordingly, the alleged criminal act had taken place in Turin, even though I had never set foot in that city. Nor had I engaged in any act other than responding to questions and expressing my heartfelt views about a judge who had written a foolish and dangerous judicial opinion that ruled that three men suspected of recruiting suicide bombers were “guerrillas” and therefore not terrorists, and not guilty. 

I characterized her opinion as a “Magna Carta for terrorism,” and instead of answering (or ignoring) me, she filed criminal charges with the prosecutor who decided to open an investigation.

As far as I know, the charges against me are still pending in Italy.  I have every intention to fight them if it comes to that.  

A variation on the theme of defamation is ridicule.  Cartoons and drawings have long been used to ridicule the high and mighty.  More recently photo-shopped pictures have superimposed the heads of public figures on the bodies of others to demean or insult them.  In 1988, the Supreme Court ruled that the Reverend Jerry Falwell could not sue Hustler Magazine for publishing a parody of the well known Campari Liqueur ads in which a celebrity described “his first time.”  The ad relies on the obvious double-entendre on the first sexual and drinking experience.  In the parody, Falwell is shown drinking and having sex with his mother—pretty disgusting!  But as the Supreme Court rightly observed:


     “Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.”

It ruled that parodies and caricatures, even revolting ones, were protected by the First Amendment.  


Several years after this decision, a young man named David Heller called me.  He had been sued by a 60 year old fellow employee, Sylvia Smith Bowman, who was running for the presidency of their local union.  Here is how the court described what Heller did:


     “[W]hile the plaintiff was on an approved leave to campaign in the union election, the defendant, David Heller, an employee in the plaintiff's office who supported the incumbent president, created two distinct photocopied representations of the plaintiff by superimposing a photograph of her face and name on two different photographs of women striking lewd or masturbatory poses. The photograph of the plaintiff's face was taken from a campaign card she had distributed to union members. The photographs on which the defendant superimposed the plaintiff's face were taken by the defendant from pornographic magazines. In one of the photographs, the model is nude from the waist down, except for garters, and is posed toward the camera with her legs wide apart as she holds a banana next to her exposed breast. In the other photograph, the model is entirely naked, and appears to be engaged in masturbation. The representations were crafted by the defendant during regular office hours and reproduced on photocopiers owned by the department. The defendant then distributed his handiwork to five coworkers in the Worcester office. Subsequently, the representations were reproduced by employees other than the defendant and distributed to a wider office audience.” 




Heller said that he had decided to create these parodies after Bowman had made what he regarded as crude and sexist statements against men, including calling them “dickheads.”  



The Supreme Judicial Court of Massachusetts eventually ruled, over a strong dissent, that Bowman was not a “public figure” because the union election was not “a public controversy.”  The dissenting judges disagreed, arguing that “an election is the absolute paradigm of a public controversy.”  My own view is that the majority, especially the woman who wrote the decision, was so deeply offended by the image at issue that it blinded them to the obvious public nature of a union election.  It was a hard case that made bad law.  Fortunately the bad law it made has not been followed in other cases involving less disturbing images.  

I understand how Bowman must have felt when several years later I was victimized by a cartoon that was similar to the one at issue in her case.  It was commissioned by Norman Finkelstein and used to illustrate an article he wrote calling for my assassination.  It was a full-color cartoon by a South American neo-Nazi portraying me as watching the Israeli Army kill Lebanese civilians.  It had me sitting in front of the television and masturbating in ecstasy over the civilian bodies strewn on the ground.  Since I am clearly a public figure, and since this was plainly a parody, it was protected speech under the First Amendment.  To be a First Amendment lawyer requires developing thick skin.  



Privacy- The right to be left alone

The right of the media to publish purely private though truthful information was the subject, more than 100 years ago, of a classic law review article co-authored by Louis Brandeis, who eventually became one of the “founding fathers” of the 20th Century rebirth of the First Amendment.  As a young lawyer, Brandeis was concerned about how local tabloids were publishing gossip about prominent people, including members of his own partner’s family.  He and his partner wrote “The Right to Privacy” in the Harvard Law Review (1890) in which they set out this new right to “be let alone,” which they analogized , at least superficially, to the law of defamation.  Remarkably, especially in light of subsequent developments, Brandeis did not seem particularly sensitive to how his new right of privacy might conflict with the old right of the press to publish scandalous material.  

The conflict between privacy and publication becomes particularly sensitive when they privacy at issue relates to minors.  I have been involved in several such cases.  One of them pitted the right of Brook Shields to prevent the publication of nude photographs taken of her when she was 10 years old against the right of the man who “owned” the photos to publish them.  

When Brooke Shields was 10, her ambitious mother Teri signed a contract with an equally ambitious photographer to photograph Brooke naked, taking a bath.  Brooke was paid $450 for the photo sessions by Playboy Press, and her mother signed a release giving the photographer the unlimited right to publish the photographs anywhere and at any time.  

Seven years later, as Brooke was about the enter Princeton as a freshman, the photographer decided to exploit her fame by producing a calendar featuring naked pictures of the 10 year old.  Brooke was upset that any such calendar would circulate among her fellow students at Princeton and would cause her great embarrassment.

She hired a former student of mine to try to negotiate with the photographer to buy back the rights, and if that failed, to try to prevent publication of the photographs.  My former student sought my advice on the matter.  I told him it would be an uphill fight to try to enjoin the publication of the pictures, because they were not obscene and because prior restraint is always disfavored by the law.  

The only theory on which I thought she could possibly succeed was that Brooke’s mother had no right to surrender her daughter’s privacy and that Brooke, now approaching adulthood, should have control over her own image.  

Ultimately the court ruled, in a bizarre opinion, that Brooke had essentially waived her right to privacy by allowing the photographs to be published earlier, and by pursuing a career in which she has relied on her sexuality for her success.  The court put it this way:  

     “Much of plaintiff's recent commercial activity upon which her fame is based has been far more sexually suggestive than the photographs which have been shown to the court. These photographs are not sexually suggestive, provocative or pornographic; they do not suggest promiscuity.  They are photos of a prepubescent girl in innocent poses at her bath. In contrast, defense counsel have submitted numerous samples of sex-oriented publicity concerning plaintiff. Particularly notable is her widely televised sexually suggestive advertisement for blue jeans. Recent film appearances have been sexually provocative (e.g., “The Blue Lagoon”, “Endless Love”.). Plaintiff's claim of harm is thus undermined to a substantial extent by the development of her career projecting a sexually provocative image.


This reasoning fails to distinguish between a 17 year old and a 10 year old.  The earlier photographs were taken of a 10 year old kid, whose mother controlled what she would do.  Her later appearances were made by a near-adult and were far more within her own control.  The court simply ignored the argument by the 10 year old should not be bound by foolish decisions made by an ambitious mother when Brooke was too young to say no.  

I believe that if this case were to come before a court today, in light of the new sensitivity toward child exploitation, the case would have been cited in favor of Brooke Shields.  I had mixed feelings about the result because it was a victory for the First Amendment, but at a heavy cost to a young woman about to enter college.  Eventually the case was settled and the calendar wasn’t distributed to Brooke’s Princeton classmates.  Brooke Shields went on to a successful career as a multi-dimensional performer.  


Another conflict arose when a blogger posted a naked photograph of a famous athlete’s two year old son, and in the caption focused the viewer’s attention on the size of the boy’s penis.  The issue I was asked to address was whether the blog met the criteria for child pornography, which is not protected by the First Amendment.  This was an unusual request, since in most of my prior cases invoking charges of child pornography, I defended the person charged.  In one such case, a medical student who had worked as a camp counselor had taken thousands of photographs of his campers, including several of them “skinny dipping.”  The focus of the photographs was not on the genitals and we argued that they were no different, as a matter of law, from nude photographs taken by recognized artists such as Robert Mapplethorpe, Sally Mann and David Hamilton that were exhibited in museums.  I won that case and several others like it.

This situation was different; because the only purpose of publishing the child’s photograph was to call attention to his penis.  Moreover, his parents had not consented their child to being photographed by a paparazzi on an isolated beach, and so the family’s privacy rights had been violated.  Eventually, the matter was resolved by “the court of public opinion” and the “marketplace of ideas.”  Viewers of the blog were so outraged and the person who posted it so roundly condemned, that the post was removed.    

Another area of conflict between the First Amendment and other provisions of the Bill of Rights arises in the context of criminal trials, when the media seeks to publish information—such as an excluded confession—that may prejudice a defendant’s right to a fair trial.  A variation on this theme is the media’s refusal to publish the names of alleged rape victims, while publishing the names and mug shots of the defendant.  This practice does not directly impinge on the First Amendment because the decision not to publish is made by the media, rather than the government.  Indeed, the Supreme Court has struck down a statute that precluded the media from publishing the names of alleged crime victims.

I have been involved in several cases that pitted the rights of the media under the free speech rights of the First Amendment, against the fair trial rights of criminal defendants under the Sixth Amendment.  I have generally been on the side of the First Amendment, while sympathizing with the situation faced by defendants who would prefer to see the press muzzled when it came to their cases.  

One case in which I sided with the privacy rights of a public figure over the publication rights of the media was Chappaquiddick.  I was part of the defense team organized by Senator Kennedy’s staff.  Part of my job was to assure the confidentiality of the testimony given at the inquest concerning the death of Mary Jo Kopenche.  The witnesses who were subpoenaed to testify at this secret inquest—especially the young women who shared the house for the weekend—were not offered the right to counsel or other rights available at an open proceeding.  We argued with some success, that because the inquest was secret and lacked the usual legal safeguards of public hearings, the right of the witnesses to confidentiality trumped the right of the media to immediate disclosure.  


The First Amendment requires that the media and dissenters need breathing room and presumption should always be in favor of a maximalist view of free speech.  But this presumption is not without significant risks to deservedly good reputations which can be damaged by defamatory or ridiculing speech.  As with other potentially harmful types of expression, defamation and ridicule come with a heavy price—one we must be prepared to pay to keep the First Amendment vibrant.  Not everyone is prepared to pay that price.  




Conclusion:  The Future of Freedom of Speech

Although most Americans support freedom of speech in the abstract, far fewer support speech that hurts them.  Free speech for me but not for thee is a common limitation.  Let me propose a test for my own readers to see whether you qualify to join “the First Amendment Club.”  


Do you really believe in the freedom of speech guaranteed by our First Amendment?  Or do you just support the speech of those with whom you agree?  Nearly two hundred years ago, the French philosopher Voltaire articulated the fundamental premise underlying true support for freedom of speech:  “I disapprove of what you say, but I will defend to the death your right to say it.”  


Defending “to the death” may be a bit strong and “disapprove” a bit weak, but the core of Voltaire’s point is crucial.  It is easy, and rather self-serving, to rally ‘round the flag of the First Amendment on behalf of those whose speech you admire or enjoy.  But unless you are prepared to defend the freedom to speak of those whom you despise—those who make your blood boil—you cannot count yourself as a member of that rather select club of true believers in freedom of expression.  


I call it a select club because most people, even most who claim adherence to the First Amendment, favor some censorship.  Deep down, clearly everyone wants to censor something.  I have Jewish friends who support freedom of expression for everyone—except for Nazis who want to march through Jewish neighborhoods like Skokie, Illinois.  I have African-American friends who support freedom of speech for everyone—except those who would try to justify racism.  I have women friends who support freedom of speech for everyone—except those who are in the business of selling sexist pornography.  And the list goes on.


When I spoke at a rally of artists, museum curators, and gallery owners protesting the prosecution of the Cincinnati museum curator who had exhibited the Mappelthorpe photographs of naked children and homosexual adults, it was a very self-serving rally.  Of course, artists, museum curators, and gallery owners would protest the censorship of art!  Art is their business, after all.  


When I represented the musical Hair, which had been “banned in Boston” back in the sixties, of course we got the support of the theater crowd.  No one should be surprised that the leader of the rock band 2 Live Crew has become a First Amendment maven, since his rap lyrics have been censored.  When the Palestine Liberation Organization (PLO) was prevented from opening an information office in Washington, it was predictable that Arab-American supporters of the PLO would cry “First Amendment foul.”  It was not as predictable that many Jewish supporters of Israel followed my lead in opposing such censorship.


And what about the classic of self-serving promotion of the Bill of Rights: The Philip Morris sponsorship of TV ads praising the First Amendment at a time when Congress was considering further limitations on cigarette advertising, or corporate support for the First Amendment right to make unlimited contributions to political campaigns.  You do not have to be a supporter of freedom of speech to protest when the government tries to censor the speech of those who are goring your ox.


Some examples from my personal Hall of Fame of true First Amendment believers:


     -  Women against Pornography and Censorship is an organization that tries to educate the public about what they perceive to be the sexist evils of pornography.  But at the same time, they try to educate about the evils of censorship, reminding their listeners that if the government is given the power to censor pornography today, then tomorrow it may demand the power to prohibit the publication of information about birth control and abortion.


     -  Action for Children’s Television strongly opposed much of the daily fare to which our children are exposed on the boob tube, but they also oppose censorship of television by the Federal Communications Commission.


     -  Those Jews, including some Holocaust survivors, who defended the rights of the Nazis to march through Skokie and who now defend the rights of hateful Holocaust deniers to publish their garbage.


     -  Those pro-choice activists who refuse to call the cops when right-to-lifers picket in front of abortion clinics.  


One group that is in danger of being drummed out of the First Amendment Hall of Fame is the American Civil Liberties Union (ACLU).  Until recently, it was a charter member.  But in recent years some of its branches have gotten soft on the First Amendment when it comes to racist, sexist and homophobic speech on college campuses.  The ACLU has refused to defend the rights of the CIA to recruit on campus.  It was nowhere to be seen when Dartmouth University disciplined members of the right-wing Dartmouth Review for engaging in “vexatious,” “aggressive,” and “confrontational” speech against an African-American professor and as mentioned earlier, some of its leaders defended the right of pro-Palestinian students to shut down a pro-Israel speaker.  As of now, the ACLU is still a member, but it is getting close to being placed on probation.


If you want to join the First Amendment Club, you must attend at least one free speech rally in support of views that you thoroughly despise.  I mean really hate!  It is not enough to say, as some do about the Mappelthorpe photographs, “Well, that’s really not my taste, but I don’t see why others who enjoy that kind of thing shouldn’t be free to see it.”  That’s cheating.  You must find something that really disgusts, angers, or offends you to the core.  Condemn the content, but go out and defend its right to be expressed.  Then come and claim your First Amendment membership card.  Too few Americans qualify for the card.  Until more do, the First Amendment will always be at risk, because it is always being confronted with new and unanticipated challenges.  








The First Amendment has undergone more change in the past fifty years than it had in the first 170 years of its existence.  Most of the changes have been for the better, such as the virtual elimination of offensiveness as a justification for censorship, and the severe limitations placed on defamation actions against public figures.  I’m proud of the role I have played in helping bring about these positive changes.



There are several areas, however, where the First Amendment remains in grave danger.  One of them is the use of threatened violence to impose self-censorship, if not governmental censorship.  Although the “fighting words” doctrine has always imposed a limitation on freedom of speech, it had been considerably weakened both in theory and in practice until the recent advent of radical Islam, with its threats to kill anyone who insults their religion or their prophet.  These threats have been accompanied by murders in several parts of the world.  As a result, publishing houses have been reluctant to include material that might give rise to threatened violence.  Following the publication by several Scandinavian newspapers of cartoons that depicted Mohammad, there were threats of death and acts of violence.  This led the Yale University Press to decide not to include these cartoons in an academic book about the controversy.  This act of censorship was not brought about by any governmental pressure, since the First Amendment would clearly protect the publication of the cartoons.  It was brought about by the self-censorship of the publishing house growing out of fear that publication would result in violence.  This phenomenon gives those who threaten violence an effective veto over what can be published in the United States.


The opposite side of the private self-censorship coin is the private circumvention of governmental censorship.  Private hacking groups such as “Anonymous” will do everything in their power to thwart governmental censorship of any kind, including the use of unlawful means, even violence, to subvert or retaliate for legitimate restrictions on publication. This means that the future battles for freedom of speech are likely to be fought on private as well as governmental battlefields and may well involve violent actions on all sides.  


The future battlefields will also be international, since the internet respects no national boundaries.  This new phenomenon has resulted in efforts to internationalize the censorship of material deemed offensive to Islam and other religions.  Various agencies of the United Nations have proposed, in the name of “multiculturalism,” severe restrictions on the right to criticize controversial cultural and religious practices deemed sacred by some and offensive by others.  Eternal vigilance is essential to the preservation of rights that many Americans take for granted.  The struggle for freedom of speech—like the struggle for other liberties—never stays won.  

On balance, the First Amendment remains relatively healthy and vibrant in America and continues to serve as a model for many emerging democracies.  The same cannot be said about our criminal justice system, to which I now turn.  






Part III: Criminal Justice: From Sherlock Holmes to Barry Scheck and CSI

Chapter 11:  “Death is different” 55 : Challenging Capital Punishment

From the beginning of my academic career, I taught classes involving the criminal justice system, but I had little practical experience as a criminal lawyer.  My primary exposure to the criminal justice system had come during my clerkships, which focused on the death penalty and cases involving the interface of law and science.  Not surprisingly, when I decided to obtain some practical experience, I was most comfortable beginning with such cases and causes.  

Cases involving death are different.  I have litigated or consulted on more than three dozen cases involving the deaths or intended deaths of human beings.  These cases fall into three categories:  1) Cases in which the defendant faced the death penalty; 2) cases in which the defendant was charged with killing someone; 3) cases in which the defendant was accused of attempting, intending or conspiring to kill.  

Whenever a defendant is at risk of losing his liberty, the stakes are high, but when he or she is at risk of losing life—when the death penalty is on the table—the stakes are the highest.  Even in murder or attempted murder cases in which the death penalty is off the table, the life and death nature of the case makes it different both in kind and degree.  

I take the hardest cases, often with low prospects for success.  Usually, though not always, I am called after the defendant has been convicted and is seeking an appeal or habeus corpus, where the prospects are even lower.  Yet, I have won nearly all of the death cases in which I played a significant role.  In no case has one of my clients been executed or died in prison.  

The reason I have won so many death cases has more to do with science than with law.  Most of my death cases were centered on forensics and applied science.  Even before the popularity of such television shows as CSI, Bones and Dexter, I had developed an expertise in the scientific aspects of homicide cases.  My academic focus has been on the interface of law and science, and so it was natural for me to employ my expertise in the courtroom.  Many of my death cases, particularly those involving science, have become the basis for film, television and books. 56   Death is not only different.  It is the stuff of drama.

In addition to the individual cases involving death that I have litigated, I have also played a significant role in the campaign to abolish or limit the death penalty.  This began more than a half century ago when I was a law clerk responsible for drafting the first judicial opinion challenging the constitutionality of the death penalty as “cruel and unusual punishment.”  

My role in challenging the constitutionality of capital punishment
As I previously mentioned, my initial assignment as Justice Goldberg’s law clerk was to write a memorandum on the possible unconstitutionality of the death penalty.  Here is how [ find author]______ , in his book __________, describes the origins of this lifelong collaborative effort.

     [Justice Goldberg] called his law clerk Alan Dershowitz into his office and advanced the decidedly immodest idea of using the Constitution to end the death penalty in America.  

     “The Eighth Amendment prohibits cruel and unusual punishment,” Goldberg told Dershowitz.  “What could be more cruel than the deliberate decision by the state to take a human life?”  

     Alan Dershowitz immediately understood the impudence of Goldberg’s proposal.  It was Dershowitz’s very first day on the job and the young clerk, already brimming with energy and enthusiasm, was elated by the Justice’s proposed agenda.  


     When Goldberg sat down with Dershowitz in the summer of 1963, not even the American Civil Liberties Union believed that capital punishment posed a potential violation of constitutional rights.  Dershowitz made this point to Goldberg.  “At the time the Eighth Amendment was enacted, the colonists were executing people all over the place.  Certainly the framers of the Constitution did not regard the death penalty as unconstitutional.”

     “Therein lies the beauty of our Bill of Rights,” Goldberg said.  “It’s an evolving document.  It means something different today than it meant in 1792.”


     In Alan Dershowitz, Goldberg found a kindred spirit and a life story that was in many ways the New York parallel of his own Chicago childhood…Dershowitz had an aversion to capital punishment, which traced back to his childhood.  Dershowitz argued against capital punishment as a member of his high school debating team.  [I still have a handwritten card from my first high school debate in which I advocate the “abolision of C.P.” because “most murderers are products of invironment.”]  In law school, he wrote a letter to the Prime Minister of Israel…arguing that the death penalty was inappropriate even for Adolf Eichmann.  

     Goldberg’s choice of Dershowitz to write his capital punishment opinion was no coincidence.  Goldberg passed on the issue during his first year on the bench in part because he did not feel that he had the right clerks.  He inherited his first set of clerks from Felix Frankfurter.  Though he had high regard for the retiring justice’s selections, he didn’t feel they were right for the job.  


     They worked together through scholarship and advocacy against the death penalty for the remainder of Goldberg’s life.  It is difficult to imagine that Goldberg could have found a more willing and able confederate than Alan Dershowitz.  


I set to work on the capital punishment project but found no suggestion in the case law that any court had ever considered the death penalty to be of questionable constitutionality.  Just five years earlier, Chief Justice Earl Warren had written in Trop v. Dulles (1958) that “whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted it cannot be said to violate the constitutional concept of cruelty.”

I duly reported this to Justice Goldberg, suggesting that if even the liberal chief justice believed that the death penalty was constitutional, what chance did he have of getting a serious hearing for his view that the cruel and unusual punishment clause should now be construed to prohibit the imposition of capital punishment?  Justice Goldberg asked me to talk to Justice Brennan and see what his views were.  Unless Justice Brennan agreed to join, the entire project would be scuttled, since Justice Goldberg, the Court’s rookie, did not want to “be out there alone,” against the chief justice and the rest of the Court.

I had previously met Justice Brennan several times over the preceding few years, since his son, Bill, was my classmate and moot-court partner at Yale Law School.  I had also had lunch several times with the justice and his friend Judge David Bazelon.  But none of our discussions had been substantive, and I nervously anticipated the task of discussing an important issue with one of my judicial heroes.  

I brought a rough draft of the memorandum I was working on to the meeting, but Justice Brennan did not want to look at it then.  He asked me to describe the results of my research to him, promising to read the memorandum later.  I stated the nascent constitutional case against the death penalty as best I could.  I told him that Weems v. United States could be read as recognizing the following tests for whether punishment was “cruel and unusual”: (I) giving full weight to reasonable legislative findings, a punishment is cruel and unusual if a less severe one can as effectively achieve the permissible ends of punishment (that is, deterrence, isolation, rehabilitation, or whatever the contemporary society considers the permissible objectives of punishment);
(2) regardless of its effectiveness in achieving the permissible ends of punishment, a punishment is cruel and unusual if it offends the contemporary sense of decency (for example, torture); (3) regardless of its effectiveness in achieving the permissible ends of punishment, a punishment is cruel and unusual if the evil it produces is disproportionally
higher than the harm it seeks to prevent (for example, the death penalty for economic crimes).

In addition to these abstract formulations, I also told Justice Brennan that my research had disclosed a widespread pattern of unequal application of the death penalty on racial grounds. I cited national prison statistics showing that between 1937 and 1951, 233 Blacks were executed for rape in the United States, while only 26 whites were executed for that crime, though Whites committed many more rapes than Blacks.

Justice Brennan encouraged me to continue my research, without making any promise that he would join any action by Justice Goldberg.  Several weeks later, Justice Goldberg told me that Justice Brennan had agreed to join a short dissent from the denial of certiorari in Rudolph v. Alabama (1963)—a case involving imposition of the death
penalty on a black man who was convicted of raping a white woman.  Justice William O. Douglas signed on as well. The dissenters invited the bar to address the following questions, which they deemed “relevant and worthy of argument and consideration”:

     1. In light of the trend both in the country and throughout the
     world against punishing rape by death, does the imposition of
     the death penalty by those States which retain it for rape violate
     “evolving standards of decency that mark the progress of
     [our] maturing society,” or “standards of decency more or less
     universally accepted”?

     2. Is the taking of human life to protect a value other than human
     life consistent with the constitutional proscription against
     “punishments which by their excessive…severity are greatly
     disproportional to the offenses charged”?

     3. Can the permissible aims of punishment (e.g., deterrence, isolation,
     rehabilitation) be achieved as effectively by punishing
     rape less severely than by death (e.g., by life imprisonment); if
     so, does the imposition of the death penalty for rape constitute
     “unnecessary cruelty”?

As soon as the dissent was published, there was an immediate reaction. Conservative journalists had a field day lambasting the very notion that a court could strike down as unconstitutional a long-standing punishment that is explicitly referred to in the Constitution. 

One extreme criticism appeared in the New Hampshire Union Leader under the banner headline “U.S. Supreme Court Trio Encourages Rape”:  

     In a decision handed down last week three U.S. Supreme Court justices, Goldberg, Brennan, Douglas, raised the question of whether it was proper to condemn a man to death for the crime of rape if there has been no endangering of the life of the victim. This incredible opinion, of course, can serve only to encourage would-be rapists.  These fiends, freed from the fear of the death penalty for their foul deed, . . .will be inclined to take a chance.  

     Thus, not content with forbidding our schoolchildren to pray in school, not content with banishing Bible reading from our schools, and not content letting every type of filthy book be published, at least three members of the Supreme Court are now out to encourage rape.

The editorial did not mention that New Hampshire had abolished the death penalty for rape generations ago and had one of the lowest rates of rape in the country—far lower than states that still executed convicted rapists.

Several state courts, where rape by black men against white women were routinely punished by death, went out of their way to announce their rejection of the principal inherent in the dissenting opinion. This is what the Georgia Supreme Court said:

     With all due respect to the dissenting Justices we would question the judicial right of any American judge to construe the American Constitution contrary to its apparent meaning, the American history of the clause, and its construction by American courts, simply because the numerous nations and States have abandoned capital punishment for rape. First we believe the history of no nation will show the high values of woman’s virtue and purity that America has shown.  We would regret to see the day when this freedom loving country would lower our respect for womanhood or lessen her legal protection for no better reason than that many or even all other countries have done so. She is entitled to every legal protection of her body, her decency, her purity and good name.  

The decision did not mention that Georgia, at that time, had one of the worst records in the nation with regard to women’s rights.

There was scholarly criticism as well. In the Harvard Law Review, Professor Herbert Packer of Stanford wrote:

          If one may venture a guess, what Justice Goldberg may really be troubled about
          is not the death penalty for rape but the death penalty. The problem
          may not be one of proportionality but of mode of punishment, the
          problem that concerned the framers of the eighth amendment and
          to which its provisions still seem most relevant. The Supreme Court
          is obviously not about to declare that the death penalty simpliciter is
          so cruel and unusual as to be constitutionally intolerable. Other social
          forces will have to work us closer than we are now to the point
          at which a judicial coup de grace becomes more than mere fiat. Meanwhile,
          there may well be legitimate devices for judicial control of
          the administration of the death penalty…[but]
          the device proposed by Justice Goldberg is not
          one of them.

These were the short-term reactions. Far more important, however, was the long-term reaction of the bar, especially the American Civil Liberties Union and the NAACP, which combined forces to establish a death-penalty litigation project designed to take up the challenge of the dissenting opinion in Rudolph. The history of this project has been recounted brilliantly by Professor Michael Meltsner in his book Cruel and Unusual, and I could not possibly improve upon it here. But the results achieved were dramatic. Meltsner and the other members of the Legal Defense Fund, a group that included a number of talented and committed lawyers, litigated hundreds of cases on behalf of defendants sentenced to death and, in many of these cases, succeeded in holding the executioner at bay until the Supreme Court was ready to consider the constitutionality of the death penalty.  I consulted on a number of these case, lending insights from my experience as the law clerk who had drafted the Rudolph opinion. 

The strategy was simple in outline: The Supreme Court should not be allowed the luxury of deciding the issue of capital punishment as an abstraction; instead, it must be confronted with the concrete responsibility of determining the immediate fates of many hundreds of condemned persons at the same time. In this way, the Court could not evade the issue, or lightly refuse to decide it if the Court’s refusal would result in the specter of mass executions of hundreds of convicts. However, the Court could decline to decide the ultimate issue — the constitutionality of capital punishment — if in doing so it could find some other way of keeping alive those on death row. And the legal team always provided the Court with this other way — a narrower issue, usually in the form of an irregularity in the procedure by which the death penalty was imposed or administered. 

Pursuant to this strategy, the Supreme Court decided a number of cases involving the administration of the death penalty; in each of these cases the Court declined to consider the ultimate issue, but it always ruled in favor of the doomed, thereby sparing their lives — at least for the moment. With the passage of each year, the number of those on death row increased and the stakes grew higher and higher.

Then in 1971 the Court took its first turn toward the noose: In Mc-Gautha v. California, it held that a condemned person’s constitutional rights were not violated “by permitting the jury to impose the death penalty without any governing standards” or by permitting the imposition of the death penalty in “the same proceeding and verdict as determined
the issue of guilt.” At that point it looked like the string might have been played out: there were no more “narrow” procedural grounds. The Court would have to confront the ultimate issue. But it was not the same Court that had been sitting when the strategy was
originally devised; there were four new Nixon appointees, and it was clear that at least some of them believed the death penalty to be constitutional.  The umpires — if not the rules — had been changed after the strategy of the game had been worked out and irretrievably put into action. Now there was no pulling back.

The drama intensified. The Court let it be known that finally it was ready to decide the ultimate issue. Knowledgeable lawyers—counting noses on the Court—were predicting that the death penalty would be sustained by a narrow majority. Some thought that it might be struck down for rape but sustained for murder. Some predicted that the Court would once again find—or contrive—a reason for avoiding the ultimate issue. A few, of optimistic bent, kept the faith and expressed the belief that the Court—even this Court—would simply not send hundreds to their death.

And then a major and unanticipated break. The California Supreme Court — perhaps the most influential state court in the nation —ruled that its constitution (which had substantially similar wordings as the federal Constitution) forbade the death penalty. Then, on the last day of the United States Supreme Court’s 1971 term, the decision was rendered in a case called Furman v. Georgia.  The death penalty, as administered in this country, was unconstitutional.  The argument proposed by Justice Goldberg on my first day as his law clerk had now been accepted by a majority of the Justices.  Goldberg called me in joy, offering mutual congratulations and crediting me with implementing his idea.  I was thrilled.