Alan Dershowitz, the peripatetic, irascible, controversial, and seemingly omnipresent retired Harvard Law professor has just published his book for 2021. I say this because he has kept up a schedule of publishing a book-a-year during his entire career. For those who thought that he would go quietly into retirement when he left Harvard in 2013 after a half-century of teaching criminal and civil liberties law and related subjects, they have learned otherwise. Dershowitz’s retirement has left him more time to teach not his students, but the members of the general public willing to hear and read his well-informed but often highly controversial views.
In this latest book, "The Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives, and Universities," one of his shorter, more compact efforts, he has taken on what he deems “the new censors.” These groups include huge technology companies engaged in disseminating viewpoints by and to the hundreds of millions (by now billions) of users world-wide as well as the more traditional media, such as newspapers and television. The new censors also include groups previously viewed as promoters of free speech and academic freedom, including so-called “progressives” as well as universities. The latter not too many years ago could be counted on to support, protect, and practice free speech, but in a remarkable and disturbing evolution they are now deeply engaged in censoring - or, in the lingo of the day, “cancelling” - those opinions that deviate from the “progressive” views that have become the only acceptable political positions on most liberal arts campuses.
Disclaimer: In one sense, I might not be the right person to review this book. I have been a friend of Dershowitz since both of us arrived at Harvard Law School in 1964 – he as the youngest tenured professor in the school’s long history, me as a first-year student. We hit it off instantly, and not just because we were each born in Brooklyn and stood out like sore thumbs at Harvard. We shared a passion for free speech and due process of law, and we were suspicious of the over-use of state power to punish or, worse, to shut-up, unpopular individuals. As soon as I graduated, we began a long friendship marked by many collaborations in defending unpopular clients. Yet I decided to do this review precisely because I know the author so well, and because I followed so closely his involvement in the cases he discusses, particularly his defense of Trump at the first impeachment trial. Further disclosure: Dershowitz has dedicated this book to me.
With this disclaimer in mind, it is incumbent upon me to give my honest opinion of this book. The Case Against the New Censorship is a much-needed critique that had to be written by someone with Dershowitz’ vast experience and deeply-held views. It will not be easy to find another such powerful assessment of our current predicament and a recipe for our way out.
Dershowitz starts out by stating clearly what his goals were in writing this book. The Trump presidency unleashed a number of unhealthy, in some cases downright dangerous trends that have been lurking just beneath the surface in the worlds of politics, media, and higher education. Until recent years, the nation’s politics were divided roughly between a “liberal” (Democratic) party and a “conservative” (Republican) party. The two parties, though frequently in disagreement, managed to share power in an essentially civil manner. Disagreements normally did not morph into almost armed combat. During the Reagan presidency, Republican President Ronald Reagan and Democratic House Speaker Thomas P. “Tip” O’Neill, Jr. were, in their private lives, on famously cordial terms and liked each other. During the hotly contested presidential election of 2000, Al Gore conceded the race to George H. W. Bush even though many argued, with good reason, that Gore might well have won.
In contrast, the past four years of the Trump administration, and the start of the Biden administration, have produced a rancor not seen in this country since the McCarthy witch-hunts of the 1950s and, in the mind of some, not since the Civil War.
Dershowitz focuses withering criticism on the media – the traditional print media as well as the newer electronic social media – for its lack of objectivity and fairness in reporting anything and everything Trump-related. Yet, Dershowitz defends the right of the media to act as they have. The author’s criticism of Trump’s enemies, especially those identified as “progressives,” is somewhat balanced by his critique of some of Trump’s defenders. This is not a book that can be labelled as an apologist for either side of the aisle, nor for any particular party. Dershowitz is, if anything, an equal opportunity critic. As such, he criticizes the American Civil Liberties Union (“ACLU”) which lost its way by morphing from a politically neutral defender of liberty into a partisan progressive organization taking sides in national politics and joining the war on Trump. What is missed in these times is a neutral defender of the speech rights of both sides, a role that Dershowitz has bravely assumed.
(I should add, again by way of disclosure, that in 1999 I co-founded The Foundation for Individual Rights in Education (“FIRE”) – www.thefire.org – dedicated to the protection of free speech and due process on college campuses. However, FIRE field of interest and activism is quite limited, and it does not substitute for the ACLU’s formerly broader reach.)
The author beseeches his readers to distinguish between criminal speech and merely provocative speech. He notes that in the second impeachment, the Democrats focused on Trump’s infamous speech before the deadly attack on the Capitol. Dershowitz correctly points out that Trump’s speech, provocative though it was, did not fall outside of the broad definition of free speech established by the Supreme Court in the famous 1969 case of Brandenburg v. Ohio, a case involving the free speech rights of the Ku Klux Klan when Brandenburg, a KKK speaker, gave an incendiary speech against Jews and Blacks. The Supreme Court reversed Brandenburg’s conviction for allegedly advocating violence in his speech, concluding that his free speech rights had been violated by Ohio law. If Brandenburg was protected by the First Amendment, so was Trump. The second impeachment violated Trump’s constitutional rights and, in any event, as Dershowitz correctly argues, an ex-president cannot be impeached.
Interestingly but not entirely surprisingly, Dershowitz notes that some of the political figures who played leading roles in the impeachment battles were former students of his: Senator Ted Cruz and Rep. Jamin Raskin of Maryland. Further, Dershowitz participated in the defense of Jamin Raskin’s father, Marcus Raskin, who was charged, along with Dr. Benjamin Spock and others, with inciting resistance to the draft during the Vietnam War. This little factoid is more important that it might first appear: it is just another example of how Dershowitz was in the middle of some of the most famous, and infamous, legal battles of the past half-century, many of which have been the subject of the prolific author’s earlier books. Dershowitz has been compared to the Woody Allen movie “Zelig,” about a character (played by Allen) who takes on the personas of the people around him. (While Dershowitz does not take on the personas, he does seem to emerge as an actor in so many of the political and legal contretemps of the era.) Allen co-stars with his then significant other, Mia Farrow. Indeed, when Farrow split from Allen and instigated a criminal investigation against him for allegedly abusing one of Farrow’s daughters, Farrow was represented by none other than Dershowitz!
But for all the interesting asides by Dershowitz, the focus of this book remains the dangers posed to constitutional liberty when colleges and universities and their faculty and students, the news media, and progressive politicians and their supporters and enablers in the private sector, gang up (or, in more polite terms, team up) in order to attack a political figure, they disapprove of without adequate attention paid to constitutional rights and political norms. The Case Against the New Censorship is a book well worth reading and pondering. It makes a very important – indeed urgent – argument for toleration of opposing points-of-view to avoid veritable civil war. It makes a convincing argument for the transcendent importance of free speech and due process of law for even the most despised and unpopular.
Of course, as with any book written by Dershowitz, it inter-weaves a discussion of general principles of law with first-person experiences teased out of his own cases. He is both legal counsel and public advocate. Balancing these roles is very difficult, but it is essential if the lawyer for a client is to have credibility with the reader. Dershowitz, in this book, as with other books he has written about his own cases (one thinks back especially to his controversial 1986 book “Reversal of Fortune: Inside the Von Bulow Case”), is not always able to achieve total objectivity (assuming that total objectivity is ever possible). He makes clear that he did not vote for Trump, he did not support Trump politically, but he wants to protect Trump’s right to free speech. It is a laudable purpose, but in a book written about a client it is only imperfectly achieved. Still, even imperfectly achieved, Alan Dershowitz’s insider’s insight into the national trauma that the nation experiences is now part of the history books – to be judged by future generations more than by our own.
Harvey Silverglate, a criminal defense and civil liberties lawyer, is GBH News’ regular “Freedom Watch” contributor. The author thanks his research assistant, Emily Nayyer, for her assistance in the preparation of this piece.