The Letter and the Law
Thursday, February 7, 2008; Page C13
A Lost Letter, A Remarkable Discovery, and the First Amendment in an Age of Terrorism
By Alan Dershowitz
Wiley. 244 pp. $25.95
While the Justice Department sinks into a political bog, a victim of its own overreaching since 9/11, the nation's legal theorists are trying to find some firm ground in the global war on terrorism. In more than a dozen recent books, the liberal scholars Bruce Ackerman and David Cole, the more conservative jurist Richard Posner, former assistant attorney general Jack Goldsmith and others have engaged in a debate on the Constitution and terrorism that may someday be read as a riveting chapter in American intellectual history. For now, it approximates a trial being conducted out of court for the benefit of the public, in which the key question is whether we should allow the government to override long-standing rights and moral boundaries in the name of preventing terrorism. Can authorities now hold suspects without counsel, trial or even knowledge of the charges against them? Is torture justifiable, given the threats we face? Should the government have more leeway to eavesdrop on U.S. citizens?
Among the most prolific participants in this debate is Harvard law professor Alan Dershowitz, best known for defending unpopular causes -- Nazis marching through Skokie, Claus von Bulow, O.J. Simpson. In "Finding Jefferson," his eighth book since Sept. 11, 2001, Dershowitz focuses on terrorism and free speech. This time around, he has given us a slight, at times unfocused, often quirky volume that digresses into the Talmud, Aaron Burr's 1807 treason trial and Dershowitz's passion for collecting Yiddish postcards, baseball memorabilia, autographs of famous people and rare books. Though unafraid of straying from his ostensible topic, Dershowitz never wanders far from his favorite subject: himself. Nonetheless, "Finding Jefferson" is a thoughtful reflection on the "threat posed by Imams who preach violence" and whether we should make it illegal for such people "to continue to preach their hatred."
To guide this conversational inquiry, Dershowitz invokes Thomas Jefferson's "maximalist view of free speech," a view expressed not only in Jefferson's pardoning of everyone convicted under the draconian Alien and Sedition Acts, but also in an 1801 letter that Dershowitz bought a few years ago from a rare-book dealer for a sum he does not disclose. (In arguing that the letter is historically significant, the professor may be raising its potential price tag, though he does not appear to be interested in selling it.) The letter, from Jefferson to Connecticut politician and future U.S. Sen. Elijah Boardman, concerned a sermon by the Rev. Stanley Griswold, a pastor in New Milford, Conn., who had argued that although everyone is entitled to freedom of opinion, "the divulging of an opinion with the wanton view to excite broils and cause needless dissentions, or to influence others to do evil," should be forbidden. Insisting that "we have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors," Jefferson called for broad freedom of speech and disputed Griswold's contention "that the utterance of an opinion is an overt act."
Likening our era to the founding period -- in which John Adams and Alexander Hamilton "used the fear of 'Jacobins' and an invasion by France to justify enactment of the Alien and Sedition Laws" -- Dershowitz says that "many Americans today share Griswold's concerns" and believe that speech can be dangerous. "What if Jefferson had seen with his own eyes," he asks, "that a libertarian approach to dangerous speech in fact led to massive violence?" In that case, Dershowitz contends, Jefferson most likely would have changed his stance and preserved "the rhetoric" of an absolute right to free speech while accepting "the pragmatic need to compromise."
This hypothetical exchange may tell us more about Dershowitz than it does about Jefferson. Strong rhetoric about upholding civil rights, combined with an actual willingness to compromise those rights, is precisely what Dershowitz himself has shown in promoting the "torture warrant," his notion that courts could allow torture in a so-called ticking bomb scenario, when a suspected terrorist has information about an imminent threat to American lives.
But in the realm of speech, Dershowitz does not counsel compromise. Gently rebuking Jefferson, he holds that free expression is an act that needs to be protected even though words can lead to violence, not because they are harmless. He argues that we cannot predict the danger of speech with enough certainty to justify punishing it, and that censorship, which can easily go too far, poses an even greater risk.
In distancing himself from Jefferson, Dershowitz is making a point about the level of fear in the United States. He is, in essence, urging readers to think clearly about the risks we face in the modern world and not to expect easy, relevant answers from the founders. Citing a tale from the Talmud in which the rabbis tell God, "You gave us a document to interpret, and a methodology for interpreting it. Now leave us to do our job," Dershowitz sees a lesson for Americans. "It is now our responsibility to build on your legacy," he tells Jefferson, and we must decide the matter anew for ourselves, recognizing that "freedom comes with a price, sometimes even a heavy price."