On Becoming Alan Dershowitz

[Music] gosh i hate stopping that in the middle it is such a fantastic piece of music uh welcome everyone today i'm stephen blackwood i'm the president of ralston college and i have the great pleasure today to welcome professor alan dershowitz to this lecture series professor dershowitz is the felix frankfurter professor of law at harvard law school he's been a fearless and compassionate advocate and defender indeed champion for civil and human rights for more than six decades he has just published his and this is not a typo i assure you 47th book that's 4-7 the case against the new censorship protecting free speech from big tech progressives and universities we are honored to have professor dershowitz on our board of visitors about alan another one of our visitors the late ellie wiesel once said that and i quote if there had been a few people like alan dershowitz during the 1930s and 1940s the history of european jewelry might have been different end quote those moving words i believe point to the importance of courage not simply to the high cost we may pay to speak and seek the truth but to the cost far higher if we do not welcome professor dershowitz and thank you very much for joining us well thank you for inviting me i'm a big fan of your new college and uh as you know i've said over and over again that the group in my experience that lacks courage most of any group i've met in my 60 years of experience in academia is university professors with tenure they have no excuse for not being courageous and yet so few of them are willing to speak out about against political correctness against the current vogues and against what some students some administrators and some faculty members want so i i am so pleased to be at a college that uh i think encourages courage and will be a center for the show of uh courage and free speech so thank you for inviting me well well uh it's a real uh honor to have you here and i i want you to start out uh uh you you seem to be to be as as vigorous as a as a as a as a young uh man in his twenties um but uh you you've been uh you've been uh around and defending uh these uh principles and ideals uh especially the the constitutional protections uh afforded uh by every citizen of the united states but indeed the ideals that lie behind those constitutional principles for anyone anywhere and i i want to to start right off by asking you about your own formation i get approached every day by young people you know seeking some guidance about about the their own pathway about how to learn to think clearly and uh deeply uh about how to navigate the the the shoals of our our contemporary culture and you're someone who has always been uh well i don't know always been because i've only known you uh uh not i haven't known you that long myself but you have for many decades been a defender and a courageous spokes uh spokesman for certain ideas and ideals and so what i want to ask you alan is is really uh it's a very big but simple question and that is if you would say if you take a few minutes to tell us about your own formation uh what were the the influences opportunities background circumstances that led you to become uh a courageous and uh outspoken let's say fearless advocate of certain uh ideas and ideals well it's a great question and it's a great question more than just because i've lived an interesting life it's a great question because philosophy is often autobiography uh people's philosophy often grows out of their own experiences i'm not sure my philosophy would be identical if i didn't grow up in a post-holocaust neighborhood where many of my contemporaries were survivors we had in our schools uh students without parents um we had parents who had numbers on their arms and they almost never spoke about it i remember asking my parents over and over again about this and and the idea was no let's just put it behind us move forward and and try to succeed uh in america so i think the holocaust did have a considerable impact on me and certainly i became a devotee of ellie wiesel who said over and over again that silence is is not an option i went to college to brooklyn college which was called the little red schoolhouse because it was a center of left-wing activism and they appointed a president of the university harry gideons from chicago who was a well-known anti-communist and he essentially imposed a form of academic mccarthyism on brooklyn college and i became president of the student government and i fought against it and although i hated communism i hated mccarthyism as much as i hated communism and so i stood up for the rights of communist professors and fellow travelers the result was that president gideon's would not recommend me to yale law school even though i was first in the class and had very good grades and was president of the student government so my own experience was fighting against uh against this kind of mccarthyism then i went to law school you know i've grown up in brooklyn and in brooklyn you know you don't experience anti-semitism sure you get into a fight with kids from the irish basketball team but you know they'll you you'll yeah yell at them and then you hug each other afterward um but i went to yale law school and there i was an incredible success i was first in my class i was editor-in-chief of the yale law journal i was going to be a supreme court law clerk and i got turned down by 32 out of 32 wall street firms because in those days they wouldn't hire a kid named dershowitz whose parents came from eastern great grandparents came from eastern europe and so i didn't feel it strongly because it didn't affect my life but i certainly saw it and and all of those experiences i think made me somebody who said that he would devote his life to fighting for equality i was at martin luther king's speech i was a law clerk in the supreme court and we got a message that said law clerk shouldn't go because there might be violence and the case might come up to the supreme court but i snuck in and went and way way way at the back and it was one of the most boring days of my life because speaker after speaker had to be introduced from this union and that group and the other group and they were terrible and then along came martin luther king and gave his dream speech and i'll never forget uh he was speaking to me i i dream of the day when my children will be judged not by the color of their skin but by the content of their character and i have been fighting for martin luther king's dream ever since i i heard it and uh the thing about me that you have to know is i'm boringly consistent i haven't changed any of my fundamental ideas in 65 or 70 years but those ideas used to be at the fringe of liberalism when i came to harvard law school in 1964 i was the most liberal professor on the faculty i haven't changed but today i probably couldn't get a job at harvard law school because of my support of freedom of speech of due process of the constitution and as a result because i don't support some of the politically correct ideas that are dominant in american universities today so i'm very much a product of my jewish upbringing of my new york upbringing of my post-holocaust upbringing of my mccarthy upbringing and all of those helped me form a philosophy my biggest flaw is i don't change my principles maybe i should but i don't but i'm accused all the time of adapting my principles to new situations it's exactly the opposite but uh people have a right to their opinion about me and they certainly express it all the time so thanks for an opportunity to talk about my background well just a couple of uh quick follow-up questions on your background alan when we asked you in as we often do to our guests whether there were works of literature or philosophy or poetry that had been influential you replied saying that um hayam bialik's poem about the 1903 kishinev pogrom in the city of slaughter had been uh very influential to you in fact we shared that in one of the zoom invitations to your your your conversation today and i i was very moved myself by the the immense um human devastation that is just relentlessly described in that poem which i hadn't discovered until uh until you brought it to my attention i'm sorry to say but i wondered if you would like to say a word whether about that poem or or about your your being raised in a jewish household and the ways in which uh those were uh say a few more words about the way in which that was formative of your your fundamental standpoint and principles very much so um the household i grew up in my mother was a very strong personality she had been first in her class in in uh high school and was going to be the first person in the history of our family ever to go to college she went to new york city college for exactly a month and a half it was september 1929. well you know what happened in october of 1929 the depression and she had to quit college and go to work and make her 13 a week to help support the family but she was very very brilliant and determined that her children uh would succeed just a little anecdote i a few years ago i had lunch with ruth greater ginsburg in the supreme court building she grew up just a couple of miles away from me in brooklyn a couple of years older than i am and she said alan i have a question to you um what's the difference between a bookkeeper in the garment district of new york and the supreme court justice and her answer was one generation and i said i have a question for you what's the difference between a bookkeeper in the garment district of new york and a harvard law professor one generation and it turned out our mothers were bookkeepers not far from each other they may have even known each other for all we knew back in the 1930s uh and and and so you know growing up in that background uh leads you to support meritocracy how does a kid from brooklyn uh like dershowitz uh become a harvard professor how does a kid like uh in from brooklyn they named ruthie bader become a justice to the supreme court only by getting the best grades and by working harder today that can't happen because grades are abolished great inflation has failed to make distinctions the new uh progressives don't believe in academic distinctions which means they're discriminating against hard-working children of immigrants who can make it only through a meritocracy and so um you know growing up in that in that background uh uh and and always being taught the one thing that was so important is that the whole world can be wrong about something and you shouldn't change your principles i learned in yeshiva i went to jewish parochial school until the 12th grade and i was not a good student but i learned of course that in the 15th 16th 17th even through the beginning of the 20th century everybody believed in the blood libel everybody believed that jews killed christian children and took their blood and used them to bake matzah everybody believed so many of the terrible stories and they were all wrong and so my mother always taught me don't believe what other people say make up your own mind decide for yourself don't follow the crowd they may all be wrong you know she would always put it in the in the simple colloquial terms if everybody tells you to jump off the roof you're not going to jump off the roof that's easy but if everybody tells you that jews are this or catholics or this or blacks or this don't believe them you've met black people you know they don't fit the stereotype you know that nobody fits stereotypes that every group contains good bad smart not so smart and so i learned that very early from from my mother um my family was very anti racist my father had a little store on the lower east side and i used to come and work there for him sometimes and he had his customers most of his customers were jewish store owners from newark new jersey one day i was working at the store my father was in the back and i was in the front and uh a man knocks on the door he's african-american and instead of just opening door i called my father and i said dad there's somebody at the door and he looked at me said why didn't you open it because he's black he said he's one of my best customers and he really screamed at me and you know things like that coming from a father to a son teach lessons almost as important as listening to martin luther king's speech um i i'm going to return to mlk in a minute but first i want to pick up on on this this long reversal that you've you've you've described you know how do you think it has become that the the positions that were clearly associated with uh with the disenfranchised with uh the left broadly speaking freedom of speech uh freedom of the press uh going back to 19th century russia and many other moments one can point to when the these were the the principles advocated by those who were powerless and without voices how do you think it has come about that those those things that were the very means of securing the rights and freedoms of the dispossessed are now regarded by many as a threat to those very people there's one simple answer truth with a capital t anybody who thinks they know the truth whether it be the early church whether it be early rabbis whether it be stalin whether it be mao whether it be castro if you think you know the truth there's no reason to have dissenting views there's no reason for due process and so many millennials now know that the truth they know that if a white policeman shoots a black person of course the policeman has committed a crime they know that if a woman accuses a man of sexual misconduct of course the woman is telling the truth they know that uh if an election has been conducted and and the result was their candidate he was my candidate too was elected the truth is the election was fair i think the election was fair by the way and i think many cops who do shoot black people are have committed crimes and i do think the vast majority of men who are accused by women are guilty but if you think you know the truth you don't need a process it's just cumbersome and free speech becomes hierarchical it becomes patriarchal it becomes imperialistic colonialistic for the first time in my life i am seeing professors professors at columbia professors at major universities writing essays against freedom of speech justifying suppression saying freedom of speech is just a way of articulate people who are usually better educated and privileged uh being able to win arguments over the less enfranchised and less privileged people and therefore there is the the the response is not to try to elevate other people to participate in the debate but to stop encouraging free speech as a means toward good results because as if they discovered something new free speech doesn't always cause good results they're absolutely right in 1931 free speech did not cause a good result in germany but neither do elections often cause good results but as winston churchill said about democracy i would say about free speech the worst possible way of getting to the truth except for all the others that have been tried over time and the alternatives to free speech are always going to be some form of censorship whether it be governmental censorship which is easy to fight i've had like 25 cases against governments on free speech and i've won practically all of them but today the danger of free speech are coming largely from private companies that's why you know obviously i wrote my book about uh protecting free speech from big tech because i can't beat them in court um i can't take twitter to court for example recently i debated bobby kennedy jr robert kennedy jr the son of the former attorney general on the efficacy of vaccines the constitutionality of mandatory vaccines he is an environmental lawyer but he's also a doubter of vaccination skeptic on vaccination i am much more supportive of vaccination we had a very good debate it lasted an hour thousands of people watched it and praised the debate some people said they had changed their minds google took it down youtube took it down they said they don't want anybody to think that vaccination is a debatable issue so some people wrote and said oh you won the debate no i didn't win the debate i wanted to win in the marketplace of ideas i wanted people to think my ideas are better than kennedy's i didn't want him to lose by default i didn't want them to take the debate down and um i just think that uh that's an illustration of what's happening i'll give you another illustration in the town of brooklyn center the town right near minneapolis where a a policewoman with 27 years of experience made a tragic tragic mistake she pulled out what she thought was a taser yelled taser taser taser it was a gun she shot and killed somebody who should never have been shot and killed and was indicted for manslaughter for making a mistake which the law doesn't permit the head person of brooklyn heights brooklyn center said she deserves to be given due process she was he was fired for demanding due process because people said they would burn down the city if he was not fired for demanding uh due process and and that's where we're at today with free speech and the reason i wrote my book is the dangers are much greater when they come from private parties and and the other reason the dangers are so great today is who are the censors i talk about big tech and i talk about progressives so who are the progressives they're our children they're our grandchildren our nieces are nephews they're our friends children they're good people they have the same values we have they want equality they want decency they want a good environment they want less gun violence they're in favor of the same things we are and it's so hard to attack them because they're decent people but as brandeis louis brandeis reminded us over 100 years ago the greatest danger to liberty comes from people with zeal well-intentioned but without understanding and that's the enemy we're fighting as pogo said a long time ago we have seen the enemy and they are us uh this time we have seen the enemy to free speech and they are our children well let me let me try and tease out something that i think is uh powerfully but subtly at work and what you've said alan that on the one hand the problem is a kind of supreme confidence that i already know all the truth uh on the on the other hand uh the what i take you to be saying is that that a genuine skepticism or humility in the face of the complexity of circumstances or reality that's not unfriendly to truth it's actually that we get closer to what actually is true if we have that humility to open ourselves to what we don't yet know but it is not to say that there isn't a genuine let's say uh objective or transcendent or circumstantial uh uh set of realities or truths out there but rather that it takes skepticism rather than supreme confidence to get at that i'm reminded actually by a quotation that it i read in one of your books just recently by justice learned hand at one of his his uh uh seminal addresses in which he he concludes by saying i will remember that what has brought us up from savagery is a loyalty to truth and truth cannot emerge unless it is subjected to the utmost scrutiny will you not agree he asked that a society that has lost sight of that cannot survive so it seems to me what we're what we're in danger of losing here uh in our very overconfidence that we already have the truth is the humility and scrutiny that actually allows us to get closer to it absolutely and you know most people who have claimed to have the truth over time have turned out not to have the truth but even if they do have the truth or even if they insist that the truth is on their side learned hand also said the essence of liberty is to not be too certain about your ideas and he said he quoted from cromwell ibc in the bowels of christ to consider you may be wrong you may be wrong that to me is the essence of a university the essence of being an intellectual the essence of being tolerant the essence of decency the essence of democracy you may be wrong it may be overstated but i applied even the circumstances where i know i'm not wrong i know the truth about the holocaust i know the truth i know that i lost cousins i know that a 15 year old boy was hanged in auschwitz that a 16 year old cousin of mine from the town of pilsner was used as a sex slave and then murdered i know those facts i've been to the gas chambers and yet i defend the rights of holocaust deniers to tell lies for several reasons first of all because i know no limiting principle that if you can't deny the holocaust what else can you deny and second of all i want this issue to be debated i want to be able to prove that they're wrong and and bigoted and it's so important not to impose any restrictions on what is debatable and what is not debatable that's why i'm so opposed to youtube and facebook they've now appointed the supreme court of platonic guardians to tell us what we can see on facebook and what we can't see and it has some very good people on it but i don't think that human beings or algorithms should determine what we can and can't see and debate tell you about the situation that exists now in the world uh you saw the united states finally and belatedly recognized the armenian genocide of course it was a genocide it was different than the holocaust in the holocaust they in-gathered children from all over the world in order to kill them just because they were jews in the armenian genocide they killed the armenians who were in their way and wanted to take over their land they're both genocides they're they're quite different in nature maybe there should be a different word for each but i'm glad that the united states did recognize that but right now in turkey it is a crime to say that the turks engaged in genocide in france it is a crime to say that they didn't engage in genocide now that we have one international universal marketplace of ideas it really means you can't debate the issue if you try to debate it on an international forum you're either going to be committing a crime in turkey or you're going to be committing a crime in france that cannot be the situation we should be able to discuss what happened in turkey to distinguish it from what happened in poland to use the right words to make sure that the full scope of what the turks did to the armenians is completely known those are issues that must be debated along with the holocaust so i don't see any issue that's beyond debate look i wish people didn't listen to anti-vaxxers i want people to get vaccinated but i'm prepared to have that debate and if people want to be persuaded by things other than science that's democracy well let's go into that a little further because i'd like to ask you about the relation between freedom of speech and other what i would call fundamental human liberties right uh whether they're they're economic or religious uh freedom to believe and speak and think uh uh freedom to your own labor uh freedom to worship as you as you please do you see these these these fundamental human liberties to be connected to freedom of speech and if so how well they're sometimes connected in there sometimes in conflict take for example the muslim approach that non-muslims non-muslims cannot portray in picture form muhammad you know jews say jews can do certain things and they can't do certain things catholics say catholics can do things but muslims are the only people i know who say that it is punishable by death if a non-muslim creates an image of mohammed i don't know if they know that in the supreme court as you walk into the supreme court chambers there is a freeze on the wall that shows all the great law givers and it has caesar and it has moses and it has mohammed he's right there um but uh maybe i shouldn't have disclosed that because i've now perhaps put it in danger but the idea that muslims have the right as part of the free exercise of their religion to prevent me from portraying mohammed shows a conflict between freedom of speech it came out obviously in the charlie hebdo case bloodily and it's come out in other cases as well so there are sometimes conflicts in the united states we have a very very good policy of trying to accommodate religious beliefs we don't always do it but we try very hard to accommodate religious beliefs and free speech beliefs there was a time when there was a conflict for example the first major case involving privacy was called griswold versus connecticut i was a student when the case was being litigated there the catholic church basically was trying to shut down an abortion clinic um in or no i'm sorry it was a birth control clinic a birth control clinic in new haven connecticut and the position they took was as catholics we are deeply offended that non-catholics these are some people were saying this are using birth control in our neighborhood and the supreme court basically said no uh you you can't because of your sensitivity stop people from engaging in a very important rite of family planning the same thing is true of abortion now abortion is a very difficult issue for me you know i people sometimes compare abortion and gay rights and throw them in the same pile no no gay rights is the easiest issue imaginable nobody has the right the legitimate right to protect to protest against two men or two women loving each other marrying each other having families together there's no countervailing interest period it is not a serious intellectual debate the fact that some people can't stand thinking about that is just too bad abortion is very different because people honestly believe the fetus is a human being and somebody deserving of protection under life liberty and property and other provisions of the constitution and their argument is not a trivial one there there's a balance you have to balance the right of the woman to procreate a freedom against the right of the fetus some people discount the right of the fetus completely others discount the right of the woman completely i don't discount either i do think that the issue should be left up to the public through either the courts or the legislatures preferably the legislatures but i regard that as a very hard constitutional issue i do not regard gay marriage as a hard constitutional issue suppose what i'm uh what i'm looking to get at here in the the link between these things is this is that how i mean one of the two models of ralston college is simral liberowita ipsa free speech is life itself which was taken from a speech given at risk to his own life by solomon rushdie on the occasion of the 200th anniversary of the first ameri amendment of the american constitution at columbia university and you know the idea is not that we actually think that you know you know free speech is exactly life itself but rather that that that human flourishing that our own expression and exercise of our agency fundamentally requires the freedom to think and speak about the world as we see it ourselves i mean if you think there's a lot of i think very very uh a fundamentally necessary um uh uh concern right now about the the the uh the legacy of slavery in the united states what is that how can we understand it but if one thinks about you know at the very most fundamental level i mean what slavery is that is that suppression of individual agency in the deepest level you're not allowed to to worship or work or or or think or act or create have families your your your age it is defined fundamentally by the suppression the an analytion of individual agency and what what that what that must mean is that the antidote fully conceived to the uh the legacy of slavery has got to be a defense of the individual's ability and an enabling of the individual to to realize his or her agency in all of its gloriously irreducibly unique ways and no one else can no one else can tell you fundamentally what your what your your your sacrosanct inner agency is and and and but yet we can't do that i mean the speeches that is the means by which we share the thoughts we have about the world and so your speech is in that sense i see it as as it were not simply analogous to but one of the essential means by which we're able to realize all of the other forms of the agency that are fundamental to human flourishing i i agree with that but there are some people out there that say no you got it all wrong um the first amendment should be the second amendment the second amendment should be the first amendment that without guns uh we can't have a free society that guns are more important than free speech they're wrong but i'm certainly uh willing to give them their right to say that but going back to slavery for a second just to show you what i think the proper role of the university is i used to teach 18 year old students of course as soon as i got into college um uh called where does your morality come from and i would start with a trigger warning i'd get 500 applications for 15 spots and i started with the trigger warning and i said to them every one of your most fundamental values is going to be challenged and questioned you're going to walk out of every class furious at me because you were sure that this was right and now it's being questioned and the 15 brave souls you know they i think i may have lost 10 or 15 out of the 500 who applied they stayed in the class and one of the first things i gave them to read was a defense of slavery by calhoun or a defense of slavery by prominent protestant ministers in the south in which they compared slavery to day labor in the north and showed that people who owned slaves at least had a property interest in them and took better care of them but the irish folks who got off the boat in 1856 uh and uh just uh were worked to death within two or three years or who got off the boat in 1861 and was sent to the front as cannon fodder were much worth off now the reason i gave it to the students i want them to even be able to argue the other side of that issue uh they're not going to be convinced and they shouldn't be convinced because labor is horribly immoral but they have to know that there was an argument that not everybody who supported slavery was inherently necessarily a bad person they had a bad view and one can understand that view but we have to understand every single point of view today you can't do that a teacher would not be allowed to give that as an assignment a teacher would not be allowed to give an assignment of some sexist material that may have reflected or still reflects a widespread view in america about the role of women of you that we all reject so it's so important that students be exposed to the most diverse most uncomfortable views my goal at the end of my hour two hours of teaching that seminar was i wanted the students to come out of the class uncomfortable very challenged and go back to their dorms and think about it and i would give them that assignment to you know to write something about it and the assignments were always terrific because the students had to really think anew about things that they had been told you shouldn't think about and then i put that into a very large course with stephen pinker we taught a course to 900 students called taboo the subjects you cannot talk about at college and we gave a series of discussions about subjects that you're not allowed to talk about at college and it was a great course because the vast majority of students are not these politically correct millennial snowflakes that's just not true the vast majority of college students are there to learn it's only the loudest ones that are the ones who are so sure about their views and don't want to see college as a learning experience but as a validation experience to validate views they came in with yeah well they even mean as i think is it mill who who puts it that you know one of the reasons we need to uh re re uh keep before us the the the ideas we consider abhorrent is so we can remember why they're wrong um and so there is in that sense there's a uh it's entirely counter to the very espoused objectives of of the moral goods that are perceived uh that are uh undermined by the very uh by the repressive um censorship that we see around us but let's you you actually you mentioned the universities let's take this on uh very directly alan you mentioned them in the in the title of your your most recent book uh which again is uh the case against the new censorship protecting free speech from big tech progressives and universities and my god this is a hell of a uh uh provocative title i mean uh protecting free speech from the universities i mean this is uh this is a a very bold claim uh uh let me introduce this uh uh just in but a general way with a with it with an equally perhaps bold claim and i'm going to assert that there has never been a time of human flourishing without institutions that reflect upon and illuminate human nature its intrinsic freedoms the history of their development and the institutions and forms of life and culture that that allow those to be realized right now universities are the epicenter of a regressive and repressive regime not every one of them not every person teaching them not an abolitionist absolutist but broadly speaking and i want to ask you is the threat underestimated are we facing a civilizational crisis or is it something that we can hope will blow over in a few months or years well all of those are correct we are yes confronting an existential crisis for freedom uh but i think pendulums swing widely in the united states you know we had a golden age of free speech when mccarthyism ended uh we went through a very difficult period of the anti-vietnam period it was called a free speech movement that's the phoniest name ever given to a movement the people who advocated free speech in berkeley were advocating free speech from me but not for me they would never have allowed a conservative to take advantage of free speech so you know jerry mccarthyism the left was saying free speech for me but not for thee today many conservatives are saying free speech from me but not for thee the people who actually support universal free speech i hope that you know ralston college will become and turn out thousands of people who will really advocate free speech for me the and everybody else but at the moment free speech is pretty selfish uh the conservatives are now strongly in favor because they're the ones who are being censored just like people on the left were strongly in favor because they were the ones being censored but the interesting thing is during the golden age of free speech say from the end of the vietnam period but really from the end of mccarthyism until the beginning of the 21st century most of the major free speech decisions were rendered new york times versus sullivan the pentagon papers you name them i litigated most of those cases or participated in them i almost never lost a case when i challenged the government on free speech the government is easy to beat in free speech cases because we have the first amendment corporations are difficult to beat because they have the first amendment so uh that's why i wrote the book and that's why i find this to be a real real challenge but the interesting thing is that during the golden age of free speech was also the golden age of equality that's when we recognized civil rights of african americans that's when we recognized equal rights for women that's when we gave full flourish to uh equal rights for blacks uh for women for gays and lesbians and transgenders so you know the people who say there's a conflict between free speech and equality are just empirically wrong they're just wrong history shows us that when you encourage free speech you also encourage equality and we've lost that golden age it has become tarnished by people on the hard left particularly and university professors uh and the american civil liberties union the great villain of this piece is the aclu which frankly just because it was good for fundraising they put freedom of speech and due process as a low priority and where are they in the chauvin case where are they when the head of brooklyn center gets fired where were they when president trump was impeached for a speech that he made they were on the other either on the other side or they were silent which is why fire an organization which has some of the same people on this board as your college has on its board is so important which is why people like harvey silvergate and alan coors and others who stand up for free speech and due process are increasingly relevant and increasingly important and why i'm so worried because i'm 82 harvey is what 74 75 allen is the same age you're a youngster compared to the rest of us but i worry where are the 20 year olds and the 25 year olds that are going to be the new harvey silva glades and the new ellie wiesels it's very frightening if universities today are turning out our future leaders and our future leaders don't prioritize free speech and due process they prioritize equality by which they don't mean real equality by the way they mean identity politics type equality which in the end is not martin luther king's speech at all no certainly not and i i i tend to my my own deepening conviction is that those who are sanguine about this and they go well you know we've seen this before are are radically underestimating the civilizational the civilizational threat um i mean you you quote again from judge hand in your most in your book before the the most recent one which was cancelled culture the latest attack on free speech and due process which i highly recommend you quote judge hand in this just absolutely fiery uh but very sobering uh statement in which he says liberty lies in the hearts of men and women when it dies there no constitution no law no court can save it and i think we're right now facing a very serious um uh upstream loss of that which most fundamentally undergirds our our freedoms uh our love of equality and our institutions and to to deny that or to be somehow uh uh uh quietest about it uh though we know we never know the future we certainly do know looking back at 19 in the 1920s in germany and other times what those upstream losses resulted in in other periods and we should be we would be crazy to think it may not happen here people forget about one thing you know we love young people we love millennials people forget that the people who burn the books the first books that were burned at the university of munich in 1933 the books were burned by students the first killings that took place under stalin were done by students by young people castro's revolution was brought about by students mao's revolution was brought about by students and so students aren't always right sometimes older wiser minds have to at least be taken into uh consideration so i am very worried about the trends uh and i'm worried about academic efforts now i defend their right to say it but academic efforts to diminish freedom of speech and we need a new american civil liberties union and unfortunately the old one is not is no longer doing its job yes and i think that you know this is a point very well taken uh young people are responsible for what they they do and say and burn and so forth uh but uh i think you make the point very clearly in fact one of your recent podcasts that that the universities in many respects are becoming sort of factories of of propaganda and even if we go back to the deutsche student shaft in in 1933 you know surely those students were getting those ideas somewhere and the the national socialists had been uh persecuting uh intellectuals like dietrich von hildebrand already for you know 12 years at that point recognizing that their free thought was a threat uh and clearly they brought many young people on board with those deleterious and murderous uh ideas and you know hana aran uh did a tremendous disservice to history when she wrote a book in which she called achmen kind of the banality of evil making it sound like nazism was a banal ideology nazism was brought about by serious intellectuals by university professors by lawyers by doctors by linguists by philosophers uh including one that hana aren't had an affair with she should have known better nazism was not banal at all it centered in universities yes they prosecuted intellectuals but who prosecuted the intellectuals other intellectuals it wasn't just a populist mass movement it started out and continued to be very much an elitist academic uh uh uh philosophy uh and and you know people like heidegger and people like vancaryan and people like uh ferg fongler and so many other intellectuals and leaders in art music and philosophy were rampant nazis ezra pound was a nazi gertrude stein jewish nazi she proposed hitler for a nobel peace prize and wrote the preliminary uh to a book written by the nazi occupier of france so you know this wasn't just a philosophy done by stupid phenol people it was a philosophy that attracted the attention of lots of intellectuals lots of young people and lots of extreme artists a dolly toyed around with nazism uh so many people were attracted to the great leader on white on horseback and that's so scary yeah yeah well i think we're utterly naive if we think that the the preservation of the lights of liberty are uh is an easy thing or that the the the bringing of young people in to see how their own nature is is only most fundamentally realized um uh in the light of of of truth and in the skepticism towards uh uh towards themselves in the pursuit of that truth if we forget these things uh we are we're we are finished um let me get to some of the we've got a nice host of questions rolling in here alan i want to get through as many of those as we can uh first question from james is is there anything more fundamental to our identity as americans than the first amendment hard to say uh i don't think democracy can exist in the absence of freedom of speech freedom of press and freedom of uh assembly um but you know i think democracy itself is not in the constitution it's interesting the only reference to anything like democracy in the constitution is the provision that the federal government shall guarantee to every state a quote republican form of government small r obviously but remember the framers of the constitution were not advocates of democracy they were concerned about democracy they set up the supreme court and the senate has checks on democracy but no i think freedom of speech is the single most important part of our constitution you know hamilton was opposed to the bill of rights he said why do you have to have a first amendment congress has no power to regulate speech so why do you need to say it over and over again what he didn't realize is that the states would have this enormous power remember that when jefferson people forget this when jefferson essentially rescinded the alien and sedition laws what he said was he's opposed to congress and the federal government prosecuting people for their ideas that's something the state should do and uh of course now the first amendment applies equally to the states so i think it is key and important and so i prefer the first jefferson who said before he became president given a choice between a country with between newspapers without a country or a country without newspapers i would prefer newspapers without a country but then after serving as president he said anybody who reads newspapers is less well educated than somebody who's never read a newspaper so you know experience turns you around but um although i'm not a big fan of some of today's media and newspapers i do think i agree with your questioner that freedom of speech is the essence of democracy might i add to that uh to complicate the matter uh let me put it this way though the first amendment may be genuinely under under threat there's no guarantee it will it will it will be around uh as a as a constitutional protection uh forever uh given that the direction of travel right now but nonetheless right now we have a strong uh constitutional defense of the right to freedom of speech however uh canceled culture persists nonetheless and and the reason for that is that it's not relying on state coercion in order to cancel someone and so what we find is that though the first amendment is clearly a necessary condition to a a free culture it is not a sufficient condition that's the thesis of this book and look at what simon schuster now simon schuster decided to publish a couple of books by former republicans including the former vice president united states 300 people signed a petition including writers and agents people who should be in support of the first amendment saying no simon interested should not publish any of this material uh the author of the biography of philip roth has just gotten his book canceled and rescinded because there were accusations against him accusations which as far as i know have not yet been proved but it's good enough to cancel his books i was canceled by the 92nd street y after ellie wiesel i was the most frequent speaker at the 92nd street y and the most popular speaker i always filled it up and a couple of years ago they told me in no uncertain terms that although they know i didn't do anything wrong i was accused by a woman i never met never heard of and i disproved it by our own emails even though they knew that i was accused and being accused is enough to cancel you and so i wrote another book called guilt by accusation the challenge of proving innocence in the age of me too all of these come together all of my most recent three books have one theme and that is you need process felix frankfurter once said the history of liberty is the history of procedure and process if you don't have the right processes in place the right procedures in place you're not going to get liberty and procedures are cumbersome and they're difficult and they're time consuming but they're absolutely essential nobody should be canceled without proof that's why i called for the creation of a metoo court a court that and also an election court i suggested two informal courts vip voter integrity panel and the metoo court consisting of former judges former presidents of universities uh uh prominent people and if you've been falsely accused or if somebody is accusing and isn't being believed they can bring the case so there's some process people who think the election was unfair should have a place to go and have their views at least heard everybody should be listened to of course women should be listened to but so should people who are falsely accused well this goes back to what you were saying that your uh one of your your your mother's persistent themes that uh you know it that the whole the whole world except you can be wrong about something and one thing that really concerns me about our present state of discourse is the idea that that it can be immoral to state certain facts uh in an interview i had with the late uh uh uh wonderful uh nobel not nobel but uh extraordinarily accomplished physicist freeman dyson uh he was a famously contrarian figure not unlike yourself in certain respects dyson uh said to me he said you know the whole history of science is made up of very fiercely held opinions that turned out to be wrong and uh you know the the the very idea that somehow truth can be um uh immoral uh that is itself a deeply immoral uh uh uh viewpoint i'm gonna like continue please respond and then i'm gonna go to the next question i wanna give you one example i have in my office um a phrenology uh skull why phrenology was proved to be false uh with you know locations of parts of the brain etc but phrenology had an interesting insight that is the shape of the brain has something to do with knowledge they got it all wrong but they got something right which led to very many good correct insight so even bad ideas sometimes lead to a truth yeah yeah yeah um next question is uh on the lighter side uh well i bet just for humor i will read this uh jason asks are you playing that piano live stephen um no i wish that i could play the piano like that that was uh music uh written for the organ by j.s bach as the fugue from toccata in fugan d minor that's bwv565 transcribed for piano by busoni and played by gerard opitz easily available anywhere online you can write to us we'll let you know it is glorious john asks is the rule of law is the rule of u.s law in the future destined to be implemented almost wholly by executive branch administrators for the average citizen i hope not but we're seeing a movement in that direction framers of the constitution clearly created only one branch of government that was supposed to make the law create the law and that was the legislative branch popularly elected in the house of representatives appointed by the senate appointed by state legislatures to the senate they did not expect either the supreme court or the executives to make law but we've seen both uh making a law uh the supreme court claims it's doing it only by interpreting the constitution but the interpretation of the constitution can be so broad for example they're going to decide a case this term as to whether new york has the right to restrict gun ownership um is that something that should be decided by the supreme court rather than the state legislature those are good questions but you're right executive authority uh is a knife that cuts both ways it means that presidents can make the law for a short time because anything that one president can do the next president can overrule there is no continuing impact of presidential rulemaking but there is i think too much of it and i think it it should be constrained i want to go back to your music for a second we all love the musical box let's remember that one of the things stalin did most and hitler did most was to censor music and and art um when you had people who had to write a music that stalin and his group would approve of uh there have been biographies of some of the great musicians during the stalin period and how they they broke out of it finally and obviously the same thing was true with nazi germany they loved art nazi germany they stole so much of it but they also took down and destroyed regenerative art uh and uh and the same thing happened in china so you know censorship never stops with political views it was heinrich hina who said when you start by burning books you will inevitably end by burning people and we've seen that throughout history yes and i think i mean this this is just such a vital point because we need to remember that this is not a battle we can win through power i mean you can't you can by definition you have to persuade people bring them into these truths you can't coerce them into believing it you yeah you know i think this is very it's very interesting to note i mentioned the uh the theologian dietrich von hildebrand a minute ago i've been reading one of his books his battle against hitler he was the son actually of one of the great sculptors of the last couple a couple of hundred years adolf on hildebrand i encourage our our listeners to go listen to uh to go check about both the father and the son both the sculptor and his son the theologian but it's just absolutely remarkable to note that franz von papen the nazi ambassador to austria now just remember we're talking about a theologian here said that damned hildebrand is the greatest obstacle for national socialism in austria no one causes more harm i mean i think we just we absolutely have to keep in mind here that the greatest threat to coercion is actually thinking itself well let's remember that the most often misquoted statement from shakespeare is what he put in the house in the mouth of a tyrannical villain first let's kill the lawyers and that's what every tyrannical regime has done first let's kill the lawyers because the lawyers also are barriers because we make it hard for them to get things done i'm having an exchange no an email with a group of very intelligent thoughtful people of my age and about half of them don't understand the role of criminal defense attorneys if you know they're guilty well how can you defend them if you think they're done something terrible how can you defend them it's amazing after john adams defense of the people in the boston massacre and lincoln's defense of so many criminals and and daryl's defense that people today intelligent people still don't understand process how you have to have due process and a fair trial for a chauvin or people like that people just don't get it if they think the person's guilty that's enough for them and that's just not enough under the constitution there's uh you mentioned early on in uh this conversation uh meritocracy and particularly as a um as a as a means of protecting or enabling uh those who are who are the have-nots uh that one that's the next question that deals with this uh professor dershowitz mentioned meritocracy which is a concept undergoing critique right now indeed his harvard colleague michael this is all from the questioner this is not what i think or say i haven't read this book but the indeed his harvard colleague michael sandell argues in his recent book the tyranny of merit that we greatly overestimate the efficacy of our merit-based systems including standardized testing and college admissions using harvard as a prime example of where this focus has led to systemic inequities what is professor dershowitz's perspective on meritocracy today and whether this idea continues to serve us well thank you michael sandel is a friend of mine but he's just dead wrong on this he's looking at the wrong problem of course harvard has never been a meritocracy it's always favored people based on who your parents are they've always favored people based on geography based on athletic skills which should have nothing to do with a university and so harvard starts out as a horrible anti-meritocracy uh but we can do better and uh what i did when we started to have affirmative action at harvard i came up with a proposal that uh no admission um statement no admission statement nothing that goes to the admission committee should ever have the name of the person on it the gender of the person the race of the person or the college the person went to what it should have is perhaps you know all the relevant factors did he go to a college or a high school that is high performing or not high performing but not the name i don't want to know that he went to exeter or groton if he went to bronx high school of science which is just as good i want college admission to be based on only factors that everybody would agree are completely relevant and um the answer i get there is sure and all you get are asians and uh most of our asian american students in most of our our colleges no i don't agree with that um uh if that were to happen it would be because asians today are working harder and that was probably true of jews 50 years ago they were working harder i don't i don't think it's true today um but um i do think we can achieve real meritocracy but it means eliminating not only some aspects of affirmative action but some even worse aspects of negative reaction i don't think that although you know my children probably benefited from me being a professor at harvard neither of them went there but um none of them went there but the uh i i do think that all of those privileges should be eliminated um you know there are some colleges that give the president because he has to afford to run the school the option of admitting five unqualified students if they each give 10 million dollars and that will help the budget of the school enormously if that's done it should be done very openly and transparently and i don't think it should be done i would like to see a university move toward a perfect meritocracy i don't think it's ever going to be possible but i think sandel used the harvard model inappropriately without taking into account the long history of harvard's discriminatory policy in favor of certain groups yeah and i think that uh this is something that is true both upon entry uh there's a there's massive uh failures i would say in the in the admissions of our of our universities that are not objective enough we need to remember that martin luther king and i think the year was 1943 was admitted to morehouse college at the age of 15 having successfully passed their entrance exam i mean the just the the equalizer that a fair play system gives but we also have a problem i would say in the united states perhaps even greater about the the standards for exit i mean where is the objectivity of what you have to learn before you get out the other side um you know cambridge or oxford everything comes down to a to a blind graded anonymized set of exams i think that's a far superior system and i will uh say that at ralston college we intended that all of our graduates that are that that one will not graduate from olsen college except uh by having passed externally administered oral and written exams we think that's the only way to have an objective standard i want to move on to a question from mark this discussion of the role of young people is crucial it is fashionable to attack faculty with regard to politically correct sensibilities but it is the students who shape this discourse and adamantly seek to enforce their notions of acceptable speech on their university campuses what does professor dershowitz think would be most effective in persuading young people in secondary school and college to care about truly free speech well i think we have to begin in elementary school and and high school and i think we have to be debating free speech and discussing free speech and and talking about it uh there's there are cases now in the supreme court on free speech in high school and um you know there was a famous tinker case where a student came in with an anti-vietnam banner and the supreme court during the golden age of free speech upheld act there's now a cheerleader case coming up to the supreme court be interesting to see how that plays out um but of course the students today in high school live in a different world they're they're tweeting each other they're exchanging sex pictures with each other uh i've had cases now of students being admitted to colleges and graduate schools and then having their admissions rescinded because of something they put on social media five years ago so i think we have to do a lot of discussion and and talking about what free speech means in the digital age and what free speech means today with identity politics and political correctness all of this is critically important because i agree today's students come to college with pre-existing political views you know when i started teaching at harvard in 1964 the students were really tabby larassa they were blank slates they came they're anxious to learn they didn't have or at least they didn't express strong political views they really were there with open minds to learn today they want as i said before validation of pre-existing views and when you want validation there's no real reason to have free speech except for thee but not for me yes it seems to me too that there's a it's really fundamentally necessary to meet young people where they are and insofar as their they are many of them at least looking to defend the the rights of uh uh minorities to live as uh they choose uh one needs to connect those those those rights whether it's in terms of gender identity or whatever the case may be um not of course that there aren't all kinds of problems about the way these these arguments are made but but in in principle the many young people are moved by the desire to defend whether it's gay marriage or other uh rights of minorities and i think we need to connect those not only those those rights to uh to the liberty of speech but also to make the point that their very arguments depend on the freedom of speech that of which they are skeptical um uh harvey uh this is the harvey you you uh you mentioned earlier uh asks to what extent are colleges are excuse me to what extent are college and university boards of trustees guilty of violating their duties to protect to protect academic freedom to what extent have they been relegated to fundraising rather than to their their other institutional obligations it's a great question and it raises a really broader issue and sometimes presidents of universities don't like to hear this um a university is more than its current student body and its faculty a university is its history a university is its future a university is its alumni a university is its donors all of them have a right to have some kind of say in the university and what happens of course today is for the most part um presidents of universities have enormous input on who is on the board some are elected some universities have elected boards of directors and i think there's been a movement for some who advocate free speech to try to get to the boards of directors or to the major donors and tell them they're not doing a good enough job in keeping the channels of communication open and i would encourage uh parents uh of students who who believe that their children are not being given an opportunity to express their views because i hear all the time from parents and from students we're afraid to say what we believe in class because we'll be a punished by the teacher be ostracized by fellow students um and um that has to stop look i remember a situation where i had a student in my class first year criminal law and he was an extreme conservative some of you may have heard of him his name is his name is ted cruz and um and he would always make the conservative point in class i think he came into the classroom the first day with his right hand up and never put it down all semester and a lot of the students didn't like him they started booing when he would speak up in class and i you know although booing is protected by the first amendment in my class i think i'm entitled to control the demeanor and and decor of the classroom and so i discouraged that and i said please you know listen to uh ted's point of view someday he may be an important person who has an influence on american government and you know he was a great student because he always presented opposing points of view and uh he and i would get into great debates you know in 50 years of teaching at harvard i don't i didn't express my personal views on things in fact students were very confused because in class i would favor the death penalty because nobody else did so i had to defend the death penalty i've devoted much of my life to opposing the death penalty in real life but i didn't use the classroom to propagandize my students about what i think i wanted to try to teach them how to think that that is that raises a very good question about to what degree we need to fight this battle you might say on multiple fronts both doing all we can from within our existent institutions and as i have come to conclude with my colleagues at ralston college founding new institutions that are not subject to the coercions of the status quo and the stakeholders who really in many uh very determined respects are not interested in in reform um uh there is a question here perhaps so this would be our last question uh is there something in particular about the intellectual history of the jewish people over the centuries that might help us to account for the very large number of advocates for civil liberties who come from that background it's a good question but i have to disappoint you i think that's true but it's equally true that a large number of the students who today are suppressing dissent come from jewish backgrounds a large number of the so-called progressives that are really regressives are people who come from a jewish background look the answer may be something that happened a few years ago in my classroom i was teaching about affirmative action and i mentioned that in canada to be the beneficiary of affirmative action you have to be a visible minority and a student raised her hand and said are jews a visible minority and i just responded as a joke i said no we're not a visible minority we're an audible minority we talk a lot we make a lot of noise so it's not surprising to me the jews are on both sides of this issue they have historically been on the forefront of civil liberties they helped found the american civil liberties union the national association for the advancement of colored people many other human rights and and and organizations that support freedom of speech but they are also on the forefront of opposing uh freedom of of speech they are on the forefront of all these issues uh that was true in the bolshevik revolution many of the jews were stalinists they were on the forefront of the worst aspects of stalinism and at the same time they were on the forefront of of freedom of speech my my mother uh would always say she she liked me to speak out but she was always worried that if a jew speaks out too much it'll hurt the jewish people and i got a lot of letters when i defended president trump on the floor of the senate saying it was a shonda which means in yiddish an embarrassment to the jewish people because the jews are anti-trump and others would say the exact opposite so you know the same is true with african-american people with american people with people of every ethnic background of gay uh people you can't stereotype about them i think there is something in the jewish tradition about challenge uh remember that the talmud is the first religious document in the history of the world ever to preserve dissenting opinions that is the talmud has a point of view and then it will have 15 dissenting opinions and they'll argue back and forth and then the the size of the the decision maker will say rabbi so and so was right right by so and so was wrong but the rabbi who was wrong his views get preserved forever because someday people may think he was right so i do think there's something in the jewish tradition about debate dialogue and dissent but i don't think there's anything in the jewish tradition that makes you either a liberal or a conservative and i think that time and experience determines that more than religious background but i don't want to end this without saying how much i admire you mr president and what you're doing and the college count me as a loyal supporter of what you're doing i want to be a part of this experiment i want to be part of this new approach to freedom of speech i want to be part of a college that has this motto of freedom of speech so please let's make this the beginning of a relationship not just a one-off and i want to be back and help with your mission of creating groups of students who will always be there to stand up for free speech due process and constitutional rights thank you very much alan we cannot wait to welcome you and your wife down to down to savannah well my wife my wife's from south carolina my wife grew up in charleston and uh and we have relatives in savannah so we're an easy invite all the better we we are looking forward to uh all that the future uh all that the future will bring i just want to thank you uh on behalf of all of our our our listeners for your uh not only for your time today but for all that you have have done and continue to do in defense of civil and intellectual and fundamentally human liberties for everyone thank you for joining us today we're so glad to have you with us thank you for the honor of being at your university at your college thank you you

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Published: Sat May 22 2021