Fighting for the right to speak, even Donald Trump

Alan Dershowitz has represented a range of controversial figures including OJ Simpson and Jeffrey Epstein. Picture: Getty Images

You might not agree with all or any of what Professor Alan Dershowitz has to say. He riles people, especially those on the left-liberal side of politics like him.

America’s most famous constitutional and criminal lawyer has also acted for the controversial, the celebrated, and the repugnant. The list includes the Chicago Seven, Patty Hearst, Mike Tyson, Julian Assange, OJ Simpson, Claus Von Bulow, Jeffrey Epstein.

And then he was a defence lawyer for Donald J. Trump during his first impeachment in December 2019.

I spoke with Dershowitz early one morning last week from Boston. Curious people may be interested to consider his views about congress’s latest impeachment of Trump, free speech, and the future of his country.

But first, to settle the nerves of the more vociferous Trump haters, let’s get this much settled.

Trump’s behaviour denying the election result was abhorrent. Trump’s speech on January 6 to an audience of supporters, and his refusal to immediately condemn the storming of the Capitol by some Trumpists, was even more repugnant. And lastly, free speech is not the freedom to speak without consequences. But more on that later.

My first question to the man who taught at Harvard for almost 50 years, 20 as the Felix Frankfurter Professor of Law, was whether it’s lonely being Alan Dershowitz today?

AD: It’s extremely lonely. I think I’m the only prominent liberal democrat who is now speaking up on behalf of free speech. Free speech for President Trump, free speech for those who supported President Trump who are now threatened with having their jobs taken away and their degrees rescinded. Free speech for those who listen and rely on the internet and social media.

The left thinks I’ve abandoned them over Trump and the right thinks I’ve abandoned them because I don’t support Trump. I’m not a Trump supporter, I’m a liberal democrat who supported Hillary Clinton and I welcome the election of Joe Biden.

JA: You have said a few times that you voted for Hillary Clinton in 2016. What about 2020?

AD: Only my wife knows.

JA: Fair enough. On to more important matters, should Trump have been impeached by the House for inciting violence? And should he be tried by the new Democrat-controlled Senate now that he is a private citizen, not president?

AD: Remember this about the president’s speech. He spoke to thousands and thousands of people. Most of them didn’t listen to him and go to the Capitol. And among those that went to the Capitol, most of them didn’t break into the Capitol. And among those who broke into the Capitol, most of them didn’t engage in violence.

Trump said go peacefully and patriotically, show the Capitol we’re strong, we won’t take it any more. They were fighting words but fighting words are protected by the Constitution.

Fighting words are voiced by radical leftists, by union leaders, by civil rights activists. They were voiced by the suffragettes.

I was one of the lawyers for the Chicago Seven. The speeches there were much worse. They were calling for blood in the streets, calling to kill police. And all of the liberals were on our side, including the American Civil Liberties Union.

(Recently brought to life in Aaron Sorkin’s legal drama on Netflix, the Chicago Seven involved the arrest and trial of seven, originally eight, radical activists charged with conspiring to incite riots at the 1968 Democratic National Convention in Chicago. Five of the seven were found guilty but the verdicts were overturned on appeal in 1972.)

AD: This speech, by president Trump, was pabulum compared to those speeches. And pabulum compared to the speech made by Brandenburg.

(The 82-year-old lawyer is talking about Clarence Brandenburg, a Ku Klux Klan leader from rural Ohio who, in front of a mob carrying guns and nooses at a rally in the summer of 1964, called for “revengeance” against blacks (he used a different word) and Jews. He rallied the crowd to march on Washington, DC. He demanded that African-Americans be expelled to Africa and Jewish Americans be sent back to Israel.)

DA: Those speeches were deemed (by the US Supreme Court) to be protected speech.

JA: If a bombastic, divisive Democrat president gave a speech like Donald Trump’s on that fateful Wednesday, and a mob broke into congress, would academics say that is not a crime, it is protected speech under the US Constitution, and therefore cannot be grounds for impeachment where the criteria are “treason, bribery, or other high crimes and misdemeanours”?

AD: Absolutely. All of the liberal colleagues of mine at Harvard and elsewhere would be on my side if the person who was president was not named Trump. I have no doubt that they would say it was a constitutionally protected speech.

Many of them have said that in other contexts. And I guarantee you that they would be saying of course you can’t try a president once he’s left office. But they use their scholarship as a cover for zealous partisan advocacy. And I don’t. That’s the difference between us.

JA: Doesn’t it make it worse that this rampaging mob attacked the very heart of democracy, the US congress?

AD: Morally it makes a difference and people’s legitimate moral opprobrium should be reflected at the ballot box. But the Constitution doesn’t distinguish whether you’re talking about a seat of government or the seat of a church or anything else.

JA: Following the House impeachment vote, could Trump seek an injunction from the US Supreme Court to stop a Senate trial on the grounds that it has no power against a president who has left office?

AD: Yes, it could issue either an injunction or a declaratory judgment. But the Supreme Court might reluctantly duck it where they say we don’t want to be thrown into a political thicket.

JA: Turning to the bigger question arising before and during the Trump era, what’s gone wrong with free speech?

AD: There is a crisis in free speech led by the United States but literally around the world. And the tragedy is it’s being led by the left. I grew up with McCarthyism. There were great threats to free speech from the right, and we, liberals, stood up for free speech because naturally they were suppressing our free speech.

Today, the conservatives are speaking up for free speech, because the left is repressing their free speech. There are very, very few people out there who say “free speech for me and for thee, rather than free speech for me but not for thee”.

The left have become so certain of their truth that they don’t think there’s a need for dissent. They don’t think there’s a need for due process. Many support cancel culture which is a direct denial of both freedom of speech and due process. With certainty comes intolerance.

JA: Why is that intolerance worse today?

AD: The internet is part of it, social networking is part of it. And Trump is part of it. He is divisive. You can’t be in favour of Donald Trump’s free speech without being in favour of Donald Trump. And that’s what I’m accused of all the time.

Nobody ever accused me of being a Nazi when, in 1977, I supported the rights of neo-Nazis to march through Skokie (a suburb in Chicago where many Holocaust survivors lived).

No one accused me of being a radical leftist when I supported the rights of the Chicago Seven to make outrageous and incendiary speeches. But today people accuse me of being a Trumpian because I defend his right, along with everybody else’s right, to free speech.

The left is a much harder enemy. Many people see them as censoring people for good reason. They hide their intolerance and bigotry behind a veneer of social justice and progressive values. As Justice (Louis) Brandeis once said, the greatest dangers to liberty lurk in good people, people of good will, with zeal but without understanding.

JA: So, is there hope for a reversal of America’s cultural decline?

AD: The election of Joe Biden is a very positive sign. The American public chose moderation over extremism both in the primaries and at the election. I hope Biden will not give in to the hard left. I hope he will take on the giant tech companies that monopolise opinion in the United States. I hope he will restore free speech and due process. And I hope he will drop the foolish impeachment and trial in the Senate that will dominate the first part of his tenure.

JA: In other words, Dershowitz is an optimist. And why not? The alternative doesn’t bear thinking about right now.