38 In one case in which the fire analogy was directly to the point, a creative defendant tried to get around it. The case involved a man who calmly advised an airline clerk that he was “only here to hijack the plane.” He was charged, in effect, with shouting fire in a crowded theater, and his rejected defense—as quoted by the court—was as follows: “If we built fire-proof theaters and let people know about this, then the shouting of ‘Fire!’ would not cause panic.” Bauge v. Jernigan, 671 F. Supp. 709, 711 (D. Colo. 1987).
39 Abbie Hoffman, The Best of Abbie Hoffman 196 (1993).
40 Alan M. Dershowitz, “Shouting ‘Fire!’ ” 263 Atlantic Monthly, January 1989.
Chapter 6
Direct and Vicarious “Offensiveness” of Obscenity
1 At common law, truth was not a defense to defamation, because a “truthful defamation was deemed more harmful than a false one.” See Alan Dershowitz, Finding Jefferson 104–5 (2007).
2 There is a strong case for some restrictions on the use of such epithets by some people in some contexts—such as a teacher calling a student by such names. See 184–187 infra. Alan M. Dershowitz, “Visibility, Accountability and Discourse as Essential to Democracy,” 71 Albany Law Review 731, 758 (2008).
3 F.C.C. v. Pacifica Found., 438 U.S. 726 (1978). The issue of whether the FCC can regulate “indecency” as defined in the Pacifico decision was recently addressed by the court. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009).
4 The exposure of such material to children raises separate issues, but the Supreme Court has ruled that the potential exposure of children does not by itself justify censoring adults. See Butler v. Michigan, 352 U.S. 380 (1957).
5 See Alan M. Dershowitz, The Best Defense, chapter 5 (1983).
6 Williams v. Hathaway, 400 F. Supp. 122 (D. Mass. 1975).
7 See Nikki Craft, “Alan Dershowitz, Joseph Mengele and Me,” 1987.
8 The issue is somewhat complicated, because it may be true that certain kinds of violent pornography (as well as violent nonpornography) are contributing factors in certain people’s decision or propensity to rape, just as alcohol or other drugs may be contributing factors. What is undeniably clear is that only a minuscule fraction of men who view pornography go on to rape or commit violence, and that a great many rapists do not view pornography. See Alan M. Dershowitz, “Why Pornography?” in Shouting Fire 1630–75 (2002).
9 The young girl who played the lead role, and later appeared in an Ingmar Bergman film Autumn Sonata (1978), recently died at the age of sixty-six, thus bringing home to me how much time had passed. Dennis Hevesi, “Lena Nyman, Star of ‘I Am Curious’ Films, Is Dead at 66,” New York Times, February 5, 2011.
10 354 U.S. 476 (1954).
11 394 U.S. 557 (1969).
12 For an elaboration of the argument in my appellate brief, see Byrne v. Karalexis, 1970 WL 136414 (U.S.) (U.S., 2004).
13 28 U.S.C.A. § 1253.
14 The prologue read as follows:
There are a number of scenes which show the young girl and her lover nude. Several scenes depict sexual intercourse under various circumstances, some of them quite unusual. If you believe that you would be offended or embarrassed by the showing of such scenes, you are invited at this time to obtain a refund of your admission at the box office.
15 Griswold v. Connecticut, 381 U.S. 479 (1965).
16 Byrne v. Karalexis, 306 F. Supp. 1363, 1365 (D. Mass. 1969).
17 Ibid. 1366. The court continued:
The question is, how far does Stanley go. Is the decision to be limited to the precise problem of “mere private possession of obscene material,” is it the high water mark of a past flood, or is it the precursor of a new one? Defendant points to the fact that the court in Stanley stated that Roth v. United States was “not impaired by today’s holding” and in the course of its opinion recognized the state’s interest there upheld in prohibiting public distribution of obscenity. Yet, with due respect, Roth cannot remain intact, for the Court there had announced that “obscenity is not within the area of constitutionally protected speech or press,” whereas it held that Stanley’s interest was protected by the First Amendment, and that the fact that the film was “devoid of any ideological content” was irrelevant.
18 Ibid.
19 Ibid.
20 Ibid. 1367.
21 Byrne v. Karalexis, 401 U.S. 216 (1971).
22 413 U.S. 15 (1973).
23 Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
24 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57.
25 Ibid. 57–58.
26 As my colleague Richard Fallon has observed: “Miller has done little to stem a mounting flood of sexually explicit materials into American popular culture. The Court’s conservative stand against sexually licentious material thus appears to have little practical significance.” Richard H. Fallon, The Dynamic Constitution 48 (2005).
27 Nor would this be my last encounter with Chief Justice Burger. See infra at 409.
28 See Alan M. Dershowitz, The Best Defense 174–78 (1983).
29 I was also involved—either as a defense lawyer, consultant, or commentator—in the defense of several magazines and books. See, e.g., Alan M. Dershowitz, Shouting Fire, chapters 18–20 (2002).
30 During a preview of a film about the Deep Throat controversy—Inside Deep Throat (Universal Pictures, 2005)—I saw some soft-core excerpts. They were awful.
31 Tom Goldstein, “Notables Aid Convicted ‘Deep Throat’ Star,” New York Times, June 29, 1976.
32 Nat Hentoff, “How to Make the First Amendment Obscene,” Village Voice, June 28, 1976. A follow-up story appeared in the next issue: Nat Hentoff, “But What If the Supreme Court Won’t Listen?” Village Voice, July 5, 1976, 36.
33 It also generated numerous other stories—presenting our side of the case. The headlines include the following:
KING OF THE PORNO ACTORS FINDS HIMSELF IN DEEP THROES
IN TROUBLE UP TO HIS THROAT
HOW HARRY GOT REAMED
DEEP THREAT
PORN’S DEEP GOAT
REEMS SHAFTED IN BIBLE BELT
34 The New York Times described a joint appearance at the Harvard Law Forum:
Harry stood with a portrait of Supreme Court Justice Felix Frankfurter beaming down on him. Beside him sat Alan Dershowitz, looking like a tweedy Marx Brother with his wild nimbus of ash-blond hair, saying that he felt Harry Reems’ trial was the most significant First Amendment conspiracy case since Dr. Spock. (Tom Goldstein, “Notables Aid Convicted ‘Deep Throat’ Star,” New York Times, June 29, 1976)
Dershowitz acted as a sort of kibitzer for Harry. He noted that the crew of the Glomar Explorer, [which] had been shown a videotape of Deep Throat, had more to do with transporting obscene material in interstate commerce than Harry Reems did. Would Larry Parrish prosecute them? When I asked Parrish, he said: “They’re not insulated against prosecution.” (Ted Morgan, “United States Versus the Princes of Porn,” New York Times, March 6, 1977)
35 Mike Royko, “Free Speech Costs Plenty But the Price Can Get Too High,” Chicago Daily News Service, August 3, 1976.
36 I relate the other legal theories on which we might have won the case in The Best Defense 155–74 (1983).
37 Margalit Fox, “Harry Reems, Star of ‘Deep Throat’ Film, Dies at 65,” New York Times, March 20, 2013.
38 Lisa J. Goodall, “A Younger Dershowitz Argues Porn Case,” Harvard Crimson, December 5, 1987.
39 Gloria Steinem, “Linda Lovelace’s Ordeal,’ ” Ms., May 1980.
40 Linda Lovelace (with Mike McGrady), Ordeal (1980).
41 Lovelace (Millenium Films 2013)
42 “200 Protest Film Screening, Citing Sexism and Violence,” Harvard Crimson, May 17, 1980.
43 “Two Arrested for Showing Deep Throat,” Harvard Crimson, May 17, 1980.
44 Miller v. California, 413 U.S. 15 (1973).
45 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57 (1973).
&nb
sp; 46 Brown v. Entertainment Merchants Association, 131 S. Ct, 2729 (2011).
47 François de La Rouchefoucauld, Collected Maxims and Other Reflections, vol. 218 (Oxford’s World Classics) 63 (2008).
48 Thomas Babington Macaulay, 1 History of England from the Accession of James the Second, chapter 2, 159 (1849).
49 Even if there were evidence that it harmed the viewer, that would not be a good enough reason for banning it, so long as there was no evidence it harmed others.
50 Indeed, since my last obscenity cases, there have been very few successful prosecutions and even fewer appellate affirmances of obscenity convictions.
51 Alan M. Dershowitz, “Why Pornography?” reprinted in Shouting Fire 163–75 (2002).
52 Ibid.
53 Ibid.
54 Ibid.
55 James Madison to William T. Barry, August 4, 1822, in James Madison, Writings 1772–1836 (Library of America) 790 (1999).
Chapter 7
Disclosure of Secrets
1 This phrase is attributed to Oliver Wendell Holmes. See, e.g., Oliver Wendell Holmes, Jr., The Path of the Law and the Common Law (foreword by J. Craig Williams, Esq.) vii (2009).
2 For an account of how small groups, like NGOs and media watchdogs, serve as a check on executive secrecy, see Jack Goldsmith, Power and Constraint (2012).
3 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963).
4 Gertrude Samuels, “The Fight for Civil Liberties Never Stays Won,” New York Times, June 19, 1966.
5 Deuteronomy 16:18–20.
6 Thomas Paine, The American Crisis, Number IV: Philadelphia, September 12 (1777).
7 See Alan M. Dershowitz, “Stretch Points of Liberty,” Nation, March 15, 1971.
8 Alan Dershowitz, “They Were Virtual Strangers, Yet the Government Charged Them with Conspiracy,” New York Times, September 14, 1969.
9 Frank Snepp, Decent Interval (1977).
10 Snepp v. United States, 444 U.S. 507 (1980).
11 I discuss the Snepp case in The Best Defense 225–40 (1983).
12 Mike Gravel, The Pentagon Papers (1971).
13 Gravel v. United States, 408 U.S. 606 (1972).
14 New York Times Co. v. United States, 403 U.S. 713 (1971).
15 Transcript of oral argument in New York Times v. United States (Pentagon Papers (case)), available at the Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1970-1979/1970/1970_1873.
16 Erwin N. Griswold, “Secrets Not Worth Keeping,” Washington Post, February 15, 1989.
17 See Gabriel Shoenfeld, Necessary Secrets 271–72 (2010).
18 See Alan Dershowitz, “The Trouble with Rape Prosecutions,” Daily Beast, July 1, 2011.
19 The checks don’t always work, as evidenced by the Murdoch scandals.
20 See, e.g., Geoffrey Stone, Perilous Times, chapter 1 (2004).
21 Ibid.
22 I can only disclose material that is in the public record or that he has given me permission to disclose.
23 Erwin N. Griswold, “Secrets Not Worth Keeping,” Washington Post, February 15, 1989.
24 Charlie Savage, “Soldier Admits Providing Files to WikiLeaks,” New York Times, March 1, 2013.
25 Ibid.
26 See Joachim Hermann, “The Rule of Compulsory Prosecution and the Scope of Prosecutorial Discretion in Germany,” 41 Univeristy of Chicago Law Review 468 (1974); John H. Langbein, “Controlling Prosecutorial Discretion in Germany,” 41 University of Chicago Law Review 439 (1974).
27 See, e.g., Steven D. Clymer, “Unequal Justice: The Federalization of Criminal Law,” 70 Southern California Law Review 643, 713, 713 n. 300 (1997).
28 The Supreme Court has recognized, in the context of the First Amendment, that a law purporting to regulate speech or press, in order to survive the “strict scrutiny” standard of review required by the First Amendment, must not be overinclusive or underinclusive. See Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729, 2740–42 (2011).
29 New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964).
30 See Alan Dershowitz, “Who Needs to Know,” New York Times, May 28, 2010. See also debate available at http://www.npr.org/2011/06/13/137086637/does-freedom-of-the-press-extend-to-state-secrets.
31 Alan Dershowitz, Finding Jefferson, 30–31 (2007).
32 As I wrote in Shouting Fire:
Though [students who seek to censor “offensive” speech] insist on being governed by the laws of the outside world when it comes to their personal lives, railing against visitor rules and curfews, they want their universities to adopt rules that restrict their First Amendment rights of free speech in order to shield them from the ugly realities of prejudice. (Alan M. Dershowitz, Shouting Fire 192–93 [2002]).
33 See Alan M. Dershowitz, “Visibility, Accountability and Disclosure as Essential to Democracy,” 71 Albany Law Review 731, 757 (2008).
34 Randall Kennedy, Nigger: The Strange Career of a Troublesome Word (2003).
35 In 2007, I taught a university-wide course with Professor Steven Pinker on the issue of taboo. The question was whether there are issues that are so delicate, sensitive, controversial, or disgusting that they should be treated as “taboos,” even on a university campus. The idea for the class was stimulated by the forced resignation of Harvard president Lawrence Summers for having suggested that women may be less suited by their biology to excellence in certain demanding intellectual pursuits.
We searched for a theory of taboo—a description or prescription of genres of expression that lie outside the presumption of discussability and are, or should be, subject to suppression, censorship, or tabooization. Professor Pinker presented evolutionary and psychological arguments for the existence and utility of some taboos. I discussed the legal and moral arguments for and against any exceptions to the general presumption of free expression. In the end, there was little agreement, except that there is and should be a difference between societal taboos, enforceable by social sanction, and official governmental censorship, enforceable by the power of the state. We also agreed that notwithstanding the clear words of the First Amendment, Congress must have the power to make some laws banning the disclosure of some secrets for some time.
Chapter 8
Expressions That Incite Violence and Disrupt Speakers
1 The leading case here is Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942) (stating that “there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include … the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Ibid. 571–72). Although the court continued to uphold the doctrine, it substantially narrowed the grounds on which fighting words are thought to apply, as evidenced by the recent Westboro Baptist church case, Snyder v. Phelps, 562 U.S. 131 S. Ct. 1207 (2011).
2 The “clear and present danger test” was penned by Oliver Wendell Holmes in a case we encountered earlier: Schenck v. United States, 249 U.S. 47 (1919). (“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Ibid. 52.) Although Schenck was never formally overturned, the court later articulated a new test, the “imminent lawless action test,” which remains the law today. Brandenburg v. Ohio 395 U.S. 444 (1969).
3 As I note elsewhere, how the balance between the right of the speaker and the right of the potential victim should be struck is context-specific and may differ from one democracy to another: “Mo
dern-day Germany has criminalized Holocaust denial, as have several other democracies. The United States is the exception to the rule of placing any restraints on specific genres of dangerous hate speech. I would not want to see the United States change … but what is right for the United States—especially near the edges of absolute freedoms—may not necessarily be right for every democracy facing different problems” (Alan Dershowitz, The Case for Peace 85 [2005]).
4 The law regarding the “heckler’s veto” is not entirely clear. The Supreme Court repeatedly held that a speaker cannot be preemptively stopped because of fear of a heckler’s veto, but in the immediate face of violence, the police may ask the speaker to cease his action to satisfy the hecklers, provided the police are motivated not by a desire to silence the speaker but rather by a concern for the preservation of order. Feiner v. New York, 340 U.S. 315 (1951). However, the court criticized this approach in later cases, finding “governmental grants of power to private actors” to be “constitutionally problematic” in cases where “regulations allowed a single, private actor to unilaterally silence a speaker even as to willing listeners.” Hill v. Colorado, 530 U.S. 703, 735 (2000).
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