BPR Interviews: Alan Dershowitz

Image credit: Harvard University

Alan Dershowitz is a constitutional and criminal attorney. He taught at Harvard Law School, entering as the youngest professor in its history at 25, becoming their youngest tenured professor at 28, and going emeritus after 50 years. Professor Dershowitz has spent his career advocating primarily for issues of free speech, Jewish concerns, and human rights. Though he represented a handful of notable people such as Jeffrey Epstein, Mike Tyson, Claus von Bülow, Patty Hearst, O. J. Simpson, and Julian Assange, Professor Dershowitz takes half his cases pro bono to serve indigent clients. He has published over 1,000 articles and authored 41 books. On January 17th, Professor Dershowitz was appointed to President Donald Trump’s impeachment defense team. 

Amelia Spalter: Is free speech actually any less free in higher education now than it has been in the past?

Alan Dershowitz: It is getting much worse for free speech. Today, you cannot go on a college campus and make a centrist, two-state solution, moderate case for Israel, without efforts being made to shut you down. Literally, to shout you down. There are numerous instances today on major university campuses where moderate, centrist, pro-Israel speakers have simply not been allowed to speak. 

For example, the Department of Political Science at Brooklyn College, my own college that I went to, will not sponsor a talk by me. But they will sponsor talks by Hamas supporters, Hezbollah supporters, supporters of terrorism, and supporters of BDS [Boycott, Divestment, and Sanctions movement.] The idea that public university departments selectively sponsor speakers raises a fundamental question under the First Amendment and certainly under principles of free speech.

AS: What do you think about the growing sentiment on college campuses that one should not express opinions about issues that do not directly impact them (e.g., commenting on issues of racism if you are not a minority?) 

AD: Nobody complains when I talk in favor of a woman’s right to choose, even though I’m not a woman and I’ve never been pregnant. Nobody complains when I talk in favor of a gay man’s right to marry, even though I’m not gay. It is selective outrage. If they don’t agree with you, then they point to your identity. It is just another form of bigoted identity politics. Any of us has a right to have any opinion on any issue regardless of what we have experienced or what we haven’t experienced.

AS: What about when people, particularly students, say a political opinion or ideology makes them feel unsafe? 

AD: They are lying. People don’t feel unsafe. They don’t even feel uncomfortable. They just disagree and they use it as a tactic for silencing the opponent. Feeling uncomfortable is not a criterion for silencing anybody. Unsafe should only mean physically unsafe, literally being afraid of some kind of physically assaultive behavior. 

Universities have no right to make people feel safe from ideas that they disagree with or disapprove of. When somebody says they feel unsafe [in this context,] there is no reason to simply back down because you feel bad for them. There is every reason to look them in the eye and say, “You are lying, you do not feel unsafe. You are misusing the concept of safety, which is a very important one, because some people really are unsafe. You’re just doing this as a tactic to try to silence your ideological or political opponents. Don’t say you feel unsafe when you mean you disagree.”

AS: What if you are concerned your opinions will influence your grades or social standing?

AD: There is a big difference between grades and social standing. Nobody has the right to be fairly assessed for social standing; that is a personal issue. You have to be courageous, you have to be brave, you have to be willing to stand up. But you have an absolute right, whether it is a public university or a private university, not to [have your grade impacted] by your ideological or political views.

In a public university, that right grows out of the First Amendment. In a private university, it grows out of the contractual agreement when you pay tuition. Every university has in their manual, either implicitly or explicitly, that you’ll be graded fairly. That you won’t be discriminated against in grading because you’re black or because or you’re Jewish or because you’re a woman or because you support a particular presidential candidate.

If you have a professor who is being one-sided or bigoted, I think you should publicly request that you have an opportunity to record the class. If the teacher won’t allow you to record the class, make that public. There is no reason why any classroom discussion should not be recorded. You cannot quote the students by name, but the professor is a public figure, and what the professor says in class should not be subject to secrecy or confidentiality. A professor should not be ashamed to have what they say in class quoted. If they won’t allow you to record it, transcribe it on your computer. Write it down word for word and hold the professor accountable for what they say.

AS: What are your thoughts on the new executive action extending Jews certain protections under Title VI?

AD: I think this new executive order concerning anti-Semitism will embolden at least some college administrators to stand up to the bigotry of the hard left against Jews and against Israel. College administrators, for the most part, are cowards who respond to the loudest voice. Many of them have been fearful of speaking up against the loud radical left. 

But that is only part of the problem. There is also rampant discrimination against practicing Christians, and others as well. Only the left has the right to be uncomfortable today on college campuses. The right does not have the right to be uncomfortable. It’s called bigotry and racism when the right feels uncomfortable, whereas when the left feels uncomfortable, that’s called virtue.

AS: Title VI only explicitly mentions protections for “race, color, and national origin,” where does Judaism fit in those categories?

AD: It doesn’t fit neatly. Jews are discriminated against today on campus not because of their religion, they are discriminated against because of their culture, their civilization and indeed, their nationalism, Zionism. Zionism is a form of nationalism, so the executive order goes right to where the problem is and says that nobody is going to restrict any speech on college campuses. You can say what you want about BDS, you just can’t practice it. You cannot discriminate based on a person being Jewish or a Zionist. 

AS: Do you think the International Criminal Court (The Hague) will be found to have jurisdiction to prosecute Israel?

AD: I do not. There are three reasons why there is no jurisdiction. Number one, Israel is not a signatory. Number two, Palestine is not a State. Number three, in the Rome Charter there is a concept called complementarity. That is that the International Criminal Court has no jurisdiction over any country which has a fair legal system that is capable of dealing with these issues internally. Israel has among the fairest, most effective, and most active judiciaries in the world. 

The case against Israel fails three core jurisdictional elements under the Rome Statute and so it should fail. Now, whether bigotry will prevail over legality, nobody can predict when it comes to [persecuting] Israel.

AS: You’ve said that when you can’t win a case in court, you’ll win it in the court of public opinion. At what point does using the media to influence the outcome of a case compromise the fairness and impartiality of the judicial system, if ever?

AD: I prefer to try my cases in court. Whenever I can, I make an agreement with my opponent not to speak about the case outside of court. I would say I’ve done that in most of my cases. But if the prosecution decides to put my client on trial on the courthouse steps, I have an obligation to respond on the courthouse steps. If the prosecution decides to try my client on Twitter, I have an obligation to respond on Twitter. 

My clients would rather not have any attention paid to their cases. Generally, they would prefer privacy, and it is the prosecution that brings the case to the public. So, I am always reactive and responsive. I think mostly defense attorneys respond reactively rather than proactively.

AS: What cases of yours do you wish the public were more aware of than celebrity trials such as Mike Tyson and O. J. Simpson?

AD: Some of them, I don’t want the public to be completely aware of, [due to the personal nature of the cases.] I write about them, but I do not mention names. For example, a woman who was wrongly sent to a mental hospital by her husband; I got her out. Or a woman whose child was taken away from her because she was having an affair with another woman. I do not want those cases to be publicized, because those are private cases. But I do think the fact that I won those cases for these women is very important. I would say 90% of my cases involved people that nobody has ever heard of. Half of my cases are pro bono cases, but those cases do not get the attention that the prominent cases get. 

There is a lot of implicit anti-Semitism. About a third of my emails today say, “You’re representing Trump in order to get rich.” I’ve never taken a penny for anything I’ve said about Trump, but a lot of people think “You’re Jewish, you must be in it for the money.” Even though, originally, I built my reputation on pro bono cases. 

AS: What do you feel is the most important precedent setting case that you have worked on? 

AD: The most important case I worked on from a personal point of view was helping get Natan Sharansky out of Soviet prison. It did help a lot of other people get out of prison, and I did work on a lot of dissident cases, but I wouldn’t call that a precedent setting case.

I guess some of the First Amendment cases that I litigated established important precedence, but I don’t take cases because I’m seeking to establish precedent. I am trying to do justice in that particular case, and I have to put my client’s interests before the interest of the general public. So I don’t look to precedent when I’m taking cases. I look to see whether I can help this particular client.

AS: Are law schools adequately preparing lawyers to practice in the 21st century?

AD: No, absolutely not. Law schools are almost always a decade or two behind. I was at Harvard for 50 years and I would teach a class almost every semester in which I dealt with a current issue that the law school wasn’t covering. I said this in my class all the time, “I’m not teaching you how to practice law today, I’m not certainly teaching you how you should have practiced law yesterday, I’m not even teaching you how to practice law tomorrow. I’m teaching you how you should be practicing law 10 years or 20 years from now, because that’s when you’re going to be at the center of the legal profession.” Students come back to me all the time, saying, “I had you 20 years ago, and wow, it may not have made sense to me when you were teaching it, but it makes sense when I’m practicing law today.” I get a lot of that and I am very gratified for it.

AS: What is one of the first things you would do to modernize the American law school curriculum?

AD: We need to be at the forefront of teaching what I call transnational law. Today, the law doesn’t recognize the fact that many of the most important aspects of life do not operate within national boundaries. For example, there are no national boundaries for terrorism. Much of crime today is transnational in nature and so we have to teach our students to be prepared to practice not locally, not even nationally, but transnationally and globally. We are not doing enough to prepare students to practice in the global economy. 

AS: What sort of media training should lawyers be receiving in law school?

AD: You need people who are experts at it on the faculty. There should be what I call “crisis managers,” on law school faculties, in addition to the law professors. You need people who have experience in crisis management, because when you get called as a lawyer, it is often going to be at a time of crisis for your client – personal crisis, corporate crisis, institutional crises of various kinds. 

AS: Very few civil liberties advocates get their due press attention. Why do you think that is, and are there any that you would like to make the public aware of?

AD: The problem is the American Civil Liberties Union is not doing its job today. It has become very, very politicized. It is much harder for individual lawyers to do civil liberties, because they cannot do it through the ACLU. They have to do it without organizational support.

The one organization that I would mention is FIRE, which focuses on free speech on college campuses. The two founders of FIRE deserve a lot of attention. One is Harvey Silverglate, and the other is Professor Alan Kors, who is emeritus at the University of Pennsylvania. They are the intellectual stimulation to the organization, deserve a tremendous amount of kudos, and people should be praising their work.

AS: You touched on this extensively in your book Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, but what do you think should be done to address “cancel culture”? 

AD: There are two issues to cancel culture. First, even when the allegation is found to be true, you have to balance it against the contributions that person has made. But even more importantly, there has to be a due process opportunity to disprove false charges. As in my case, where the allegations were completely, totally, made up for ideological, political, and financial reasons, there has to be due process. 

What I have urged is that the “Me Too” movement itself create an informal court consisting of, say, three retired judges, maybe even retired Supreme Court Justices—at least three prominent men and women. Anybody who is accused under the “Me Too” movement would have a right to seek a remedy in front of that court and the court could come to three conclusions: one, guilty, two, not guilty, and the third, something like inconclusive or matters of degree. There has to be an opportunity to not have your life “cancelled.” 

For example, I have spoken at the 92nd Street YMCA every year for 25 years. I was the second most frequent speaker after Elie Wiesel. They decided to cancel me, even though they admitted that the accusation against me was false. They said the accusation is enough to not have you speak anymore. Obviously, I’m fighting back against that. 

I think anybody who is falsely accused has to fight back. When I started to think about writing my book, Guilt By Accusation, a lot of my friends said, “Don’t write it, because if you don’t write the book, it will go away.” And my response was, “I don’t want it to go away. I want to disprove it.” I wanted to have every opportunity to prove that the woman and the lawyers who falsely accused me did it knowingly, for profit, and that they should be the ones who are condemned. I am the victim of a false accusation, so I’m not going to hide. I’m not going to do anything that I would not do had I not been falsely accused.

AS: Have you ever gone to court to contest a traffic ticket?

AD: I contested two of them, I lost both of them. For one of them my son, also a lawyer, contested a traffic ticket that he got on the same day, in same place, and from the same police officer as I got mine. He won and I lost. So, a word of caution, never ever hire me to defend you on a traffic ticket.

*This interview has been edited for length and clarity.

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