The student-run Harvard Law School Forum takes pride in the diversity of the gladiators who appear before it. In recent seasons, they have included Caspar Weinberger, Robert Mugabe, Jerry Falwell, Daniel Ortega and Shimon Peres. Scheduled for April 28 was a debate between two natural adversaries, Zuhdi Labib Terzi and Alan Dershowitz.
Terzi, the permanent observer at the United Nations of the Palestine Liberation Organization, is the highest ranking PLO official in the country. In debate, he is cool and skillful. Dershowitz, a professor at Harvard Law School, is a practiced and passionate dissecter of PLO rhetoric and has often defended Israel against its manifold enemies.
As a representative of an organization not recognized by the United States, Terzi must obtain State Department approval any time he wishes to travel outside a 25-mile radius of Columbus Circle in New York. He has been given such permission when he wanted to go outside New York City for vacations or to attend social gatherings. Permission has been denied, however, whenever the PLO official has been invited to deliver a public speech or otherwise engage in what might be called political activity.
Despite Dershowitz's fearsome reputation as a polemicist, Terzi accepted the invitation from the Harvard Law School Forum -- contingent, of course, on State Department approval. It was denied. Thereupon Dershowitz, the Harvard Law School Forum and Brad Roth, a law student who had helped arrange the debate, filed suit: Harvard Law School Forum, et al. v. George P. Shultz, Secretary of State. Joining in was the Civil Liberties Union of Massachusetts.
On April 18, 10 days before the date of the debate, Federal District Judge Walter Jay Skinner issued an order revoking the State Department ban on the Terzi-Dershowitz confrontation. He took note of the State Department's position, quoting from an affidavit by Assistant Secretary of State Alan Keyes, who emphasized that it is the policy of the United States not to "lend support, honor, recognition or attention" to any PLO member. "If we were to allow PLO members to travel freely throughout the United States furthering their political agenda and attempting to build their political base, we would undercut our policy of not lending legitimacy to that organization."
Indeed, it was the solemn position of the U.S. government that if the debate were to take place, "the harm to our foreign relations would be profound and irreparable."
On the other hand, Judge Skinner felt that "a loss of First Amendment freedoms constitutes irreparable injury," and he saw this as a First Amendment case. Skinner had no problem understanding the secretary of state's point that Terzi's involvement in a public debate in America would undermine the U.S. policy of keeping him and the PLO illegitimate. However, Shultz's justification of the ban ignored the fact, said the judge, that there are American citizens who "desire to hear [Terzi's] views on the politics of the Middle East in a political forum," but are now denied access to him by their own government.
Then came a resounding blast for free speech by Judge Skinner: "The secretary's actions are completely at odds with the First Amendment's protection of political debate." And he quoted from a 1966 Supreme Court decision, Mills v. Alabama: "Whatever differences may exist about interpretation of the First Amendment, there is practically universal agreement that a major portion of that amendment was to protect the free discussion of governmental affairs."
The judge admitted that providing a PLO representative a public forum will have some adverse affect on the public interest, but "the public interest in preserving free and open debate on precisely such subjects, however, must be regarded as of overwhelming priority, as mandated by the First Amendment, and as being at the heart of our survival as a free people."
The State Department immediately asked the First Circuit Court of Appeals for an emergency stay of Skinner's order allowing the debate. On April 25, a unanimous three-judge panel saved the citizens of Cambridge, Mass., from exposure to Zuhdi Labib Terzi while also safeguarding the luminous strength of American policy in the Middle East. The appellate panel indicated that even though the decision on the merits would come later, the government had won its case against the First Amendment.
One of the appellate judges, Frank Coffin, has often in the past appeared to be a disciple of Madison and Jefferson, but this time he chose George Shultz as a preferred model of how to balance free speech against the passing strategies of foreign policies.