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Alan Dershowitz: Liberal Democracy Dies When Illiberalism Wins

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In this episode of American Thought Leaders, Harvard law professor emeritus Alan Dershowitz discusses his book, “The Price of Principle: Why Integrity is Worth the Consequences,” and argues that “unprincipled” partisanship has taken over America.

“How dare they call themselves progressives,” says Dershowitz. “They are regressive. They are reactionaries. They are repressors.”

One of the top constitutional lawyers in the country, and a self-described liberal Democrat, Dershowitz has been excoriated by both the right and the left for defending highly unpopular public figures.

“People love me when I defend people they like and they hate me when I defend people they don’t like,” says Dershowitz. “The more unpopular you are, the more likely I am to want to defend you.”

Dershowitz shares his thoughts on COVID-19 mandates and censorship, due process and civil liberties, as well as the rise of antisemitism in America.

“You see these protests against Zionism by people who have no idea what Zionism is,” claims Dershowitz. “I’ve been a Zionist from the time I was born. All it meant is that the Jewish people, like every other people, have a right to a homeland.”

Note: Our team contacted Virginia Giuffre about Dershowitz’s allegations against her, but we did not immediately receive a response. 

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Jan Jekielek:

Alan Dershowitz, such a pleasure to have you back on American Thought Leaders.

Alan Dershowitz:

Thank you so much for having me.

Mr. Jekielek:

Your book, “The Price of Principle,” comes at the right time for me. These are exactly the kinds of questions I have been kind of struggling with. Has partisanship completely taken over? In a sense, has partisanship almost become principle?

Mr. Dershowitz:

I would say partisanship has taken over, but it’s an utterly unprincipled partisanship. If you ever dare to put principle before partisanship, you’re canceled. Your group won’t have anything to do with you. You have to be 100 per cent partisan no matter what the principles are. I’ll give you an example. Caroline Kennedy’s father wrote the famous book, “Profiles in Courage.” I showed a little bit of courage defending President Trump in his impeachment, even though I’m a liberal Democrat and voted against him twice. Caroline Kennedy said if she knew that I had been invited to this dinner party, she never would have come. The public library in Chilmark, Massachusetts, a bastion of liberalism, canceled my speeches and stopped circulating my books, all because they don’t like who I defended. Even though I vote the same way they vote, that’s not good enough. They say that I, “enabled President Trump by being one of his lawyers on behalf of the Constitution.” That’s how far we’ve gotten.

Mr. Jekielek:

You say in the book that principles have actually become a weapon for partisanship. What do you mean?

Mr. Dershowitz:

People claim principle, but they’re using it in a partisan way. It’s the opposite of principle. It’s doublespeak. Today, you cannot be a principled person. If you are a principled person, you’ll be punished for it. Nobody wants principle. Nobody wants consistency. The Republicans are perfectly happy to say, “Oh, we’re not going to allow Merrick Garland to get a hearing for the Supreme Court, because it’s eight months before the election.” And then a few weeks before the election when President Trump nominates Justice Barrett, they say, “Oh, that’s fine.” And you ask them, “What’s the principle?” And the principle is, “Because we can. We have the votes to do it.” The Democrats do the same thing. They silence people. They attack people, particularly in academia today.

I just learned something last night. I was having dinner with the president of one of the city universities in New York. She said that at the City College of New York, where I went to Brooklyn College, the law school faculty has now voted unanimously to boycott Israel, and only Israel. They had as their primary speaker at graduation a guy who advocates terrorism against Israel, and doesn’t believe it has a right to exist. I don’t want to debate Israel here today, but if a student at that university dares to dissent from the faculty’s unanimous vote, they’re not going to get recommended for a job on Wall Street or for a clerkship. That’s not education. That’s propaganda. In 50 years of teaching at Harvard, I never once expressed a personal point of view in class. I taught the students how to think, not what to think. Today, classrooms are propaganda mills, and they’re our future leaders.

Mr. Jekielek:

You have a chapter in the book talking about systemic racism. As an assessment, are we still systemically racist? It made me think about this whole woke movement. Essentially, it is partisanship masquerading as principle, isn’t it?

Mr. Dershowitz:

It is. Meritocracy is a dirty word. You can’t use meritocracy. That’s white supremacy. There has to be racial advantage. But when there’s racial advantage, there’s racial disadvantage. Look at the Harvard case. Who’s suing Harvard? It is Asian students, because they’re being discriminated against because of quotas for black students. That case is going up to the Supreme Court, which I think will decide it the right way. But you know what will happen? Universities will cheat. All the major universities will cheat. They will still have racial quotas, but they’ll describe them as something else. Is that different from what the south did when it totally avoided the Supreme Court’s decision on desegregation? The south cheated, too. They pretended that they weren’t segregating, when they were. Universities shouldn’t be cheating and shouldn’t be looking for ways to circumvent Supreme Court decisions, but I assure you they will.

Mr. Jekielek:

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Mr. Jekielek:

Do you see these Harvard student quotas as a form of racism?

Mr. Dershowitz:

No, it’s an attempt to eliminate racism. But it’s a very, very awkward attempt, and it introduces new elements of racism. It’s not going to work in the end. We are not a systemically racist country. We’re a systemically anti-racist country. When I grew up in the 1940s and 1950s, we were a systemically racist, anti-Semitic, anti-Catholic, anti-Latino country, and that changed dramatically in the 1960s and 1970s. When I graduated from Yale Law School, first in my class, editor-in-chief of the Law Review, and a potential Supreme Court law clerk, I didn’t even get an interview, except for one Wall Street firm. I applied to 32 Wall Street firms. They all turned me down. That was systemic racism. That doesn’t exist in America today.

Today, we have sporadic racism, which the government tries very hard to overcome and sometimes overreacts. Perhaps the most significant event in transforming America in the 21st century may well be the killing of George Floyd. That changed everything in corporations, in the media, and in universities. We were right to have a reckoning about race. The killing of George Floyd was inexcusable and horrible, but this event transformed us so dramatically. The transformation was already occurring. It was already on the way, but that one event changed it so quickly and so dramatically, and the result is not equality. The result is to introduce a new kind of inequality, and an anti-meritocratic approach.

Mr. Jekielek:

Many people have argued that this basically allowed this illiberal movement that you describe in multiple ways in the book to come out. It was an opportunity to codify it and make it official.

Mr. Dershowitz:

I think that’s right. Less radical people, from the communists in the 1930s and 1940s to today’s woke generation look for opportunities. They find events and use them to project their narrative and to project their agenda. The thing that’s so hard about it is they’re often right. Many of these are decent people, the ones who now want to impose censorship on universities. I tend to agree with a lot of their substantive points of view. I just don’t agree with the means. They don’t care about means. They think the ends justify the means. Their utopia is going to be achieved, and so we don’t need the barriers of equal protection, due process, and free speech. Why do you need free speech if you already know The Truth with a capital T? Why do you need due process? If you already know that a man who is accused by a woman is, of course, guilty, why do we need to have a trial?

You may have seen just the other day, in that case that was on the Serial podcast for many months, the prosecution agreed to release the guy who had been wrongly convicted, and had been in jail for so many years. The Left loves it when somebody they identify with is released, but they don’t want to apply the same due process standards to President Trump, or to a white person who was accused of oppressing blacks. I don’t like it when that happens, but I’ll defend anybody who the government is after. The more unpopular you are, the more likely I am to want to defend you.

Mr. Jekielek:

Are you familiar with Marcuse’s principle of repressive tolerance? As you’re speaking, this is what I’m thinking about.

Mr. Dershowitz:

Oh, very much so. I grew up with that. He was at Brandeis University when I started at Harvard University, and he was a neo-fascist of the Left. He was one of the first academics who justified censorship, and justified repression. He said over and over again, “There’s no reason to let them have their ideas expressed. We know we’re right.” This was part of the so-called Berlin School of whatever. It’s interesting, because although it grew out of anti-Nazism, it turned into its own form of fascism. So, Marcuse was kind of the godfather of the woke repressionist movement. How dare they call themselves progressives? They are regressives. They are reactionaries. They are repressors. They want to stop due process and free speech and equal protection.

Mr. Jekielek:

I think you meant the Frankfurt School, is that right?

Mr. Dershowitz:

Yes. That’s what I meant.

Mr. Jekielek:

There are three principles that have dominated your life. I’m going to read them, because I found this very valuable. Number one; freedom of expression and conscience. Number two; due process, fundamental fairness, and the adversary system of seeking justice. I want to get into that because it’s very underappreciated why this is so critical. Number three; basic equality and meritocracy. You argue that these three things are fundamental. The moment you dispense with any one of them, things fall apart.

Mr. Dershowitz:

Yes. The one that’s the most unpopular today is the adversary system. If you want to appreciate defense lawyers like me, go to Iran, go to the Soviet Union, go to Russia, go to China, or go to Cuba where people can’t get defense lawyers. Don’t wish for things that you don’t want. People say I’m such a horrible person because I defended O.J. Simpson. I defended Leona Helmsley. I defended so and so. Yes, and I’m going to continue to do that, just the way John Adams defended those who were accused of the Boston Massacre, and Abraham Lincoln defended unpopular people. Clarence Darrow did. Thurgood Marshall did. It’s the essence of our system, and yet it’s very unpopular.

People love me when I defend people they like, and they hate me when I defend people they don’t like. People walk up to me in the street and say, “We used to like you and respect you. Now we’re so disappointed.” I say to them, “You were wrong to ever respect me or like me. I was never on your side. I was on the side of due process and justice and civil liberties.” Back in the day, things came out on their side. But today, the victims of due process and civil liberties are often Republicans, conservatives, Christians, Jews, and people who are not popular with the woke generation.

Mr. Jekielek:

I’m also going to read something which I pulled from the book. It was a powerful quote from H.L. Mencken that I hadn’t been aware of, “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels, for it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning, if it is to be stopped at all.” Wow. 

Mr. Dershowitz:

I think of that every day when I’m accused of defending Donald Trump. In many ways, Donald Trump is a scoundrel. I don’t agree with him. I voted against him. If he committed a crime, I would want to see him impeached or go to prison. I’m not rooting for him. But I don’t want to see the laws applied against him. And now, so many civil libertarians want to expand the criminal law. I’ll give you an example. There’s a statute called the Espionage Act of 1917, the most hated law by the liberals. They got Eugene V. Debs with it. They got Dr. Spock with it. They got Daniel Ellsberg. The liberals all said, “Oh my god, we have to abolish that statute.” Now, you have the New York Times and the liberals editorializing in favor of expanding that statute and applying it broadly to the Donald Trumps or the sedition statutes.

They were used against anarchists and communists in the 1910s and 20s. Now they want to  use them against people who participated in January 6th. Now I’m opposed to what happened on January 6th, but I’m more opposed to using sedition laws to try to get them. This was a protest that got out of hand. A violent protest that shouldn’t have happened. But don’t overreact by keeping people in prison for months without a trial and charging them with sedition, as some people want to do. My former colleague, Laurence Tribe, has suggested that the Attorney General of the United States should prosecute Donald Trump for attempting to murder Vice President Pence. My God, what would that do to the rule of law? There is no law of attempts that would apply to that. Tribe is making it up, but he’s willing to make it up if it’s to get Trump. By the way, that’s the title of my next book, Get Trump. It will be about how the attempt to get Trump is destroying civil liberties and human rights in America.

Mr. Jekielek:

You have views on the election, views on free speech, and these things come together around Trump, so we’ll talk about that in a moment. Before we get there, I want to finish this piece. You said you’re on the side of justice, but you also make this really interesting distinction. You cite Judge Oliver Wendell Holmes who says, “No, I’m on the side of law. I’m not on the side of justice.” It isn’t necessarily obvious why these things are not the same.

Mr. Dershowitz:

I’ll give you an example. Today to convict somebody, you have to prove his guilt beyond a reasonable doubt. What if he is guilty, but there’s no evidence of reasonable doubt? And so you have a guilty person going free. That’s not justice. That’s the law. That’s a good law. It’s better that ten guilty go free, than one innocent be wrongly convicted. That’s a good law. It emanates from the Bible, from Abraham’s arguments with God over the sinners of Sodom. But it’s not justice, and I have produced injustice on some occasions. Yes, I have occasionally gotten guilty people off. I don’t lose any sleep when I do that. Let me tell you I lose sleep when I get an innocent person convicted. That’s only happened a very, very few times in my life, but it has destroyed me, because then I say it’s my fault. If a guilty person is set free, that’s part of our system. It’s better that ten go free. But if an innocent person is convicted, I can’t deal with that. It’s so hard. That’s why I fight so hard against that happening.

Mr. Jekielek:

It’s foundational that you follow the law, and you don’t make exceptions.

Mr. Dershowitz:

That’s right. Now look, you can have lawless law. If I were living in Nazi Germany, I wouldn’t follow the law. But we live in a country of law, and our legal system is a good one. It doesn’t always produce the right results. I’m not Socrates. I wouldn’t drink the hemlock. There isn’t room for civil disobedience. I’ll give you a wonderful example. My grandfather was poor as a church mouse. He had no resources, and lived in a small place. On the eve of the Nazi invasion, he found out that he had 28 relatives in Brno, Czechoslovakia. He went around to every neighbor and said, “You have a basement that’s now a synagogue. You need a rabbi. You need a cantor.” He had 28 false affidavits, and saved the lives of 28 people from Nazi Germany. It was the proudest moment in his life.

If you ask me what I admire most among the wonderful things done by my family, I say it’s my grandfather’s illegality in helping to bring in those 28 people. They are now among the most accomplished Americans. One of them was chairman of the Department of Engineering at Columbia. Another one is a major investor in medical technology. Another is a rabbi in Los Angeles. Another is a public relations person. These are great Americans, and they were brought out of the Holocaust by an illegal act. That is why I tend to be sympathetic to immigrants who will do anything to come to America to save themselves from prosecution.

Mr. Jekielek:

In the book, you mentioned the case of Jussie Smollett. If I recall correctly, his case was dismissed at one point. Presumably, it was dismissed on some kind of principle, even though the law definitely didn’t suggest that it should be dismissed. Subsequently, it got re-litigated. I’m thinking that the prosecutor dropping the charges imagined they were following some sort of principle that’s greater than the law.

Mr. Dershowitz:

Yes, but the principle there was one that they would be embarrassed to articulate, because it was completely based on improper considerations like race. The real villain there was Don Lemon, who just recently got fired by CNN, but didn’t get fired soon enough. He was a very close friend of Smollett and gave him legal advice about how to not give the phone to the police. He never disclosed it when they interviewed him on television, whereas Chris Cuomo was fired. I have a chapter in my book about CNN. CNN doctored a tape of mine, they doctored a tape. They made me say exactly the opposite of what I had said. I said that a president could be and should be impeached if he committed criminal behavior or criminal-like behavior. But they had me saying a president can’t be impeached, even if he commits criminal behavior, even murder. Therefore I’m like Hitler, Stalin, and Mussolini. That’s why I’m suing CNN for their unprincipled distortion of what I had to say. I strongly believe in the First Amendment, but the First Amendment doesn’t give the media the right to make up defamatory stories in order to serve their partisan interests.

Mr. Jekielek:

When you realized that tape was doctored, what was your reaction?

Mr. Dershowitz:

I couldn’t believe it, because I had been a guest on CNN many, many, many times. But as soon as I defended Trump, my status changed. I knew that, and that’s okay. They’re a network with an agenda. But they doctored a tape like this, and took my words out. I had used these words in my answer on the Senate floor; unlawful, illegal, corrupt, in order to define what would constitute an impeachable offense. They took out those three words, just as if they had taken scissors to snip them out, and then had commentators saying, “Dershowitz says a president can do anything that’s unlawful or legal or corrupt,” when I had said exactly the opposite. So, I sued them. I hate to sue. I had never sued anybody in my life until I was 75 years old, and now I’m involved in three lawsuits.

Mr. Jekielek:

You said there were three things you did that changed you from being seen as one of the top legal minds in the nation, to being some kind of pariah in certain social circles.

Mr. Dershowitz:

Okay. Representing Trump was number one, and that put me in the “margins of academia.” CNN contributed to that by distorting what I had to say. Number two was representing Jeffrey Epstein, which I did and got him a good deal. He didn’t like the deal, but most people think it was too good of a deal. And the third, as the result of representing Jeffrey Epstein, I was accused by a woman named Virginia Giuffre, who I never met and never heard of, having sex with her on seven occasions, including in front of my house in a limousine in Cambridge, Massachusetts, and in places that I never was during the relevant time period. Her own lawyer admitted on tape that she was, “Wrong, simply wrong.” Her other lawyer admitted that she was wrong. There were emails that we discovered that they tried to suppress which admitted she never knew me, and yet people believed it.

But it’s interesting, what these different people think. The people on the liberal Left don’t believe the sexual charges against me. They only attack me because of the Trump business. Others don’t attack me on the Trump business, but they attack me because if I’ve been accused, then I must be guilty. I wrote another book on that called Guilt by Accusation, where I clearly document how it’s impossible for me to have ever been in the same place where she was, under the circumstances she suggests, including, as I say, sex in a limousine in Cambridge, Massachusetts with two women. She just has a phenomenal imagination. But I’ve clearly proved her to be a serial liar, and I’m suing her now. She’s suing me, and it will be resolved in court.

Mr. Jekielek:

We live in this time where identity plays a role in ascribing guilt or innocence. In a sense, this has infected almost all areas of inquiry. Are you seeing this?

Mr. Dershowitz:

The ACLU is dead in the water now. They don’t defend people on college campuses from being denied free speech or due process. For the most part, they have become a partisan, political organization 

Mr. Jekielek:

Alan, I want to switch gears and go into your book, “The Case for Vaccine Mandates.” This is something that I’ve been following very closely. It’s based on the idea that the vaccines need to reduce the spread of the virus for there to be a case for mandates. Right?

Mr. Dershowitz:

That’s absolutely right. If you invented a new vaccine that could immediately stop all heart attacks, all cancer, and all diabetes, I would be opposed to the government requiring you to take it. I would urge you to take it, but I would not allow the government to make you take it. According to John Stuart Mill principles, the only way the government can force you to do something is to prevent harm to others. However, if there is a vaccine, even if it doesn’t help you personally, if it helps to prevent the spread of a deadly disease, then as a last resort I would allow the government to compel you to take it. I own a letter written in the hand of Alexander Hamilton dictated by George Washington in which he urges his commanders to make every soldier in the American Revolutionary War get vaccinated against smallpox. Essentially, he says, “We’re not going to lose to the Brits, but we might lose to smallpox.” But I agree with you that the key point is that the vaccine has to prevent contagion, and that burden hasn’t yet been satisfied, at least with the earlier vaccines. The current new vaccine claims that it does prevent the spread. That’s a scientific fact. Now, we’ll have to wait and see whether it’s borne out by the research.

Mr. Jekielek:

Here’s a question. I can imagine the people that were very pro-mandate at the beginning would grab Alan Dershowitz’s book and say, “Look, Alan Dershowitz says that there is a case for mandates.” Whereas, as we know, these genetic vaccines certainly didn’t stop the spread, and in some cases, some of the research is now showing that they’re actually promoting viral replication, as opposed to the opposite. Here’s the thing I want to get at. Early on we were told by pundits and politicians that the vaccines would stop the spread, but there was a suppression of information and a quelling of voices of scientists who were seeing through serious research that it was just the opposite. How do we deal with this sort of thing in a legal framework?

Mr. Dershowitz:

It’s very hard, and I was completely against trying to censor. I was willing to debate Robert Kennedy, who I disagreed with. Nobody else was willing to debate him. We had a really good debate about these issues. Science is science and it should never be suppressed. I wrote a piece in March of 2020 saying, “Believe science, be skeptical of scientists.” Back then, in March, 2020, scientists were making two claims. Number one, they were saying that the virus is not spread by aerosol, it’s only spread by touching. Number two, they were saying, “Don’t buy masks. Masks are no good.” In the second one, they were making a deliberate lie. They knew that masks were good, because the doctors were using them. They just didn’t want us, the non-doctors, to hoard the masks, and so they were willing to mislead us.

As to the first point, I said, “You’re just demonstrably wrong. If the virus spread by touching, it would spread much more slowly. Touching is not something that induces quick spreading. Obviously, it has to be something that comes from aerosol.” I was proven correct in both instances, but I was so criticized when I wrote that article. Because they said, “How dare you challenge the medical establishment?” Well, I did, and you did, and others did. That’s a healthy way to go. I still promote vaccination for people who choose to have it. But until it’s proven that it really can prevent the spread of contagion, I would be reluctant to go to the ultimate step. Government force should always be used only as a last resort, and only after all other alternatives have been tried, and only if the justification is clear. There is Supreme Court precedent allowing it, probably, but that doesn’t mean it’s the right thing.

Mr. Jekielek:

We did a very thorough literature review around mask use. There are many papers now that have tried to address this both in vivo, and in vitro, so to speak. There’s a very marginal benefit for masks that aren’t fully sealed like the N95 versions. There are still places that enforce these kinds of mask mandates. But then on the other hand, you have Governor Ron DeSantis prohibiting municipalities from creating these vaccine or mask mandates. What are your thoughts?

Mr. Dershowitz:

I don’t like governors telling cities what to do. Governors should have limited power. They don’t make the law, they enforce the law. We’re in a period of relative uncertainty. I carry around my N95 mask every day. I wear it. I put it on right. I seal it. Thank God. I want to cross my fingers I haven’t gotten COVID. I’m 84 years old with some medical conditions, so I tried very hard to avoid that. I was at a scientific event the other night. There were about a hundred world famous scientists and I was the only one wearing a mask. So obviously, either scientists aren’t sure, or they’re willing to take a risk themselves in order to have better social interaction.

But I continue to wear the mask. I’m entitled to make that decision. I’m probably not entitled to impose it on you. For example, I’m sitting on an airplane and you’re sitting next to me. I wear my mask. Am I entitled to tell you to put it on a mask, if you’re sitting next to me? And if your mask would reduce spreading more than me wearing a mask alone, then you wearing a mask too would help reduce the spreading. I think if I ask politely, I am. I’m not sure I’m entitled to compel you to wear the mask. These are hard questions, and it’s a work in progress. I commend people who take varying points of view on this and let the debate continue. I don’t want to see a singular point of view. I would like to see more people be very conservative on this, which means wear the mask, take the vaccine. When in doubt, do that. But government compulsion is not something I’m in favor of. Actually, the title of my book, The Case for the Vaccine Mandate was a little misleading. It should have been, The Case for the Vaccine Mandate Under the Right Conditions as a Last Resort, but books with titles like that don’t sell, so my publisher shortened the title.

Mr. Jekielek:

There’s another element to these vaccines, especially the genetic vaccines. It’s a new technology. This is the first time it’s really been deployed, and certainly the first time it’s been deployed on this scale. One of the big concerns of people is the right to informed consent around medications. The potential harms of the vaccine, or even the known harms that have since come out through FOIAs on the Pfizer documents were largely hidden from the public.

Mr. Dershowitz:

Everybody should be fully advised and fully informed, even if the information hurts the narrative of the government, and even if it results in fewer people being vaccinated. Information should never be suppressed in the name of an agenda, so I’m completely in favor of making sure that all the information is always released.

Mr. Jekielek:

You make a distinction between your personal view and the legal view. I find it very interesting that you make that distinction. What does the law have to say in a situation where information like this is withheld, and at multiple levels? It could be withheld by companies which stand to profit. It could be withheld by Big Tech. It could be withheld by media in general. You have a chapter in the book talking about media taking incredibly partisan positions or very convenient positions for whatever reasons. Where does the law stand on this and how does one deal with this, especially if it turns out there were very serious personal harms caused by withholding such information?

Mr. Dershowitz:

Basically, the law makes a tri-part act distinction,. There’s the government. The government should not withhold anything except material essential to national security, like the names of spies, or the location of nuclear weapons. That’s the government. Second, there are quasi-governmental organizations like the FDA that control private pharmaceutical companies, that are halfway between government and private. And then, there are purely private companies, where the government has very little control over what’s disseminated, except if it is fraudulent, and even if it is fraudulent, if they’re not on the stock market and if they’re not selling certain materials. Unfortunately, just lying to the public is not a crime.

In the Theranos case that was tried recently, the people who were in charge got convicted. Unfortunately, the lawyer escaped liability, in my view should have been convicted. But it’s really a work in progress. Just today, some courts rendered decisions about the freedom of the internet and whether the internet can make rules about censoring materials. This is probably the most interesting and difficult free speech question of the 21st century, and I’m glad to be involved in it. I don’t have a simple minded solution, obviously. The presumption is in favor of letting-it-out speech, then it has to be overcome by very strong arguments on the other side.

Mr. Jekielek:

In the typical situation where there is a novel virus, and people don’t know how to deal with it, what will happen typically is doctors will go out and try to find ways to treat it based on the utility and the safety of the various drugs that they may be testing. Depending who you are, there are particularly famous or infamous drugs of that nature. But right now there are something like 20 or 30 different therapeutics that can be used for early treatment of COVID. Some of them are licensed in here in the U.S. Some of them are in other countries. It’s a whole big mix.

Here’s my question. There was an inordinate focus on using vaccines to deal with the virus, which has its own issue, because coronaviruses mutate so much. I’m not going to go into the details, but it’s a questionable thing whether vaccines are the optimal thing for a highly mutable virus. At the same time, people were looking at various therapeutics and found various levels of efficacy. If there is evidence of a deliberate intent to prevent therapeutics from being used against this disease, therapeutics that showed efficacy in clinical trials, how does the law deal with this? Is there some way to address this, because it would seem to be a huge problem.

Mr. Dershowitz:

It’s a huge problem, and the law does not adequately address it, because it doesn’t involve producing a product that’s fraudulent. Look, we know there is some very good therapy. I know people who have been involved in the development of some of these therapeutics that work, and everybody should know about all of them and should have access to them. And believe me, if I ever got COVID, the first thing I would do is to call my friend and say, “What should I take?” Everybody wants the best medical care, and the government has a role to play, but it shouldn’t be the role of medical dictator and medical czar.

Mr. Jekielek:

Let’s jump to the free speech issue. The Fifth Circuit Court of Appeals recently reversed this Federal District Court ruling that was blocking the implementation of the Texas law, HB 20. Are you familiar with this?

Mr. Dershowitz:

Not by name, but tell me about it. Probably, I am.

Mr. Jekielek:

Texas can implement this law that prevents social media networks from censoring users based on ideology, and based on their politics. That was blocked by the Federal District Court and now that block has been rescinded by the Fifth Circuit. You said this is one of the most difficult areas that we are facing right now. Please explain to me why this is so difficult.

Mr. Dershowitz:

Because it’s about private people and private companies. Big as they are, they’re claiming their First Amendment right to decide what to put on their platforms, and they’re claiming the right to censor. You know, Jefferson, Hamilton, and Madison would be turning over in their graves if they thought that giant private companies could do what the government can’t do, and that is censor. Now, there have been some theories that have been proposed, like the theory of common carrier. Back in the day, even though they were private, train companies or telegraph companies were regulated by the law. There is a case to be made for that. There are cases on both sides of this. There’s a case to be made that Google and Facebook and Twitter and others have become common carriers, and maybe are subject to some regulation. But you don’t want to give the government too much power over these companies, either. Imagine if we had a totalitarian country with a tyrant being able to control Google. You would want it to be free. So, these are such hard questions. It’s the kind of thing I would spend a whole semester on if I was still back teaching at Harvard where I was for 50 years.

Mr. Jekielek:

When these companies are effectively almost infrastructure, very much like a phone system. they can become the tyrant.

Mr. Dershowitz:

Of course. Yes.

Mr. Jekielek:

Or both can become tyrants, which is an incredibly troubling proposition.

Mr. Dershowitz:

But it’s less troubling if each becomes a tyrant and they’re against each other. So, that at least gives the two tyrants the opportunity to fight with each other. The worst possibility is if there’s only one tyrant, or if the government takes over everything. That’s why there is some concern. Look at what’s going on in Russia today where the government is obviously controlling the media. They’re not doing a particularly good job. By the way, it’s become much harder for governments to control the media. In China and Iran they try hard, but with the internet and with other methods of communications, things sneak out now.

When I was representing dissidents in the Soviet Union back in the 1970s, they would circulate what was called samizdat. They would type a pamphlet and they’d make 10 copies. The 10th copy you probably couldn’t read, because it was done with carbon paper. Then, they would distribute them. That was their method of circumventing censorship. Today of course, we have more high tech methods of doing it, and it’s a continuing war. It’s a war with some positive consequences for free speech, because it means that there isn’t one unit anywhere that controls everything, and that’s the key to avoiding tyranny.

Mr. Jekielek:

That is a hugely valuable point. I’ll read this from the court’s opinion, “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.” So, that’s at the Fifth Circuit now. Apparently, it’s going to go up the chain.

Mr. Dershowitz:

I think so. That’s a statement that Jefferson would probably agree with. You know, I own a letter from Thomas Jefferson when he was president, written in his own hand on the eve of the 25th anniversary of the Declaration of Independence. He talked about the importance of free speech, and how nothing should be censored, so long as there is the opportunity to correct errors. And of course, that’s not so easy on the internet. When CNN defamed me, it went all over the world. And when I tried to say no, they edited the tape.

Yes, I got page 28, or two minutes at the end of a TV show. But by that time, the damage had been done. There is a quote that has been attributed to Winston Churchill, “Lies get halfway around the world before the truth has a chance to put its shoes on.” That was before the internet. With the internet, of course, it’s clearer. The same thing happens with accusations. This false accusation of me became a front page story, and the conclusive proof that I couldn’t have done any of the things I was alleged to have done hardly got covered.

Mr. Jekielek:

Absolutely. Now we’re getting to a case in point, and I’m going to be talking about the Hunter Biden laptop censorship. So, we have elected government. And we have this unelected bureaucracy of Big Tech and legacy all telling their story. Let me lay out a couple of things which are relevant. First of all, in late 2019, the FBI collects the laptop, verifies it, knows it’s real, and is sitting on it for its own reasons. Later, we have Zuckerberg telling us that the FBI told Facebook to watch out for Russian disinformation just prior to the New York Post publishing on the Hunter Biden laptop.

After this publication, we have five past CIA directors and other well known people in the establishment saying that this laptop has all the hallmarks of Russian disinformation. And this is all before the 2020 election. Now fast forward to today, where everyone agrees the Hunter Biden laptop is real, and the contents are authentic. Now, you have people like Jack Dorsey saying it was a mistake to do this censorship. What is your take here?

Mr. Dershowitz:

It’s always a mistake to do censorship. Always let the story play out. We never know what the truth is, and what it’s not, particularly in the context of Russia, in the context of American elections, or in the context of partisan media. Nobody should censor any of this. I don’t know what the truth is. I don’t know what the answer is. There seems to be enough to raise a level of suspicion, but I want to hear all sides of the issue. I don’t want to be told by big media or by the government, “No, this doesn’t deserve to be aired.” Look, I voted for Joe Biden. I support Joe Biden. I’d like to see him reelected if he runs. But I want the truth to come out about his son and the laptop. That’s more important than who gets elected.

Mr. Jekielek:

Okay, but let’s go back a little bit. In the book and elsewhere you said the election was free and fair.

Mr. Dershowitz:

No, no, no. No, I didn’t say that. I said the results of the election were correct. I think there were problems with the election. I think Pennsylvania acted unconstitutionally. I think there are questions about voting machines. I think there are questions about mail-in ballots. I think we have to make sure that the next elections are beyond reproach. But I have not seen any evidence that would support the conclusion that Donald Trump was elected rather than that Joe Biden was elected. So, my views are a little bit more complicated.

Mr. Jekielek:

That’s actually great for me to understand. But I want to sort of move all that aside, all the stuff around machines or whether the votes were cast properly or not. Let’s just take all that aside. You could argue convincingly that this Hunter Biden laptop revelation was supposed to be the October surprise for the side of the Republicans. And indeed, there’s been polls done on this that if people understood that this was a real thing and knew that it existed at all, in many cases they might have voted differently. Does this constitute a form of election interference? What does the law have to say about this? Or is doing stuff like this perfectly legit, where you have all these massive institutions essentially telling the same story which turns out to be false?

Mr. Dershowitz:

We’ll find out. The truth, falsity, gray somewhere in between, we don’t know. But the law doesn’t protect against false information that impacts an election. We know that the election of 2020 may very well have been impacted by James Comey’s ill-advised statement about Hillary Clinton. Everybody always expects October surprises, and it’s the nature of the media. Why do we say October? Because if they do it in October, it’s too late to correct it in November. So, the Justice Department has a rule that we don’t make public announcements on the eve of an election, because they could impact the election. The media has the opposite rule. Generally, they go out of their way to make disclosures that could impact the election. Then finally, you have the selective media. They won’t make disclosures if they don’t help their favorite candidate, or if they hurt their favorite candidate. So, that’s what we have to be worried about, but the law doesn’t really have anything to say about it, unfortunately.

Mr. Jekielek:

We have seen all these huge institutions effectively work in concert. We don’t know exactly how it happened. We were seeing some resolution due to FOIA emails around this. But are there no remedies? Is this something that could happen again? I find this very troubling.

Mr. Dershowitz:

It is troubling. It could happen again. The answer has to be in the court of public opinion, where all sides have to be given an opportunity to  strongly make their view, and try to persuade the public. It becomes a strong issue in a political campaign that the other side is suppressing information. But to allow the law to come in and tell the media what to do would be difficult. Of course, the government is different. The government shouldn’t be selectively suppressing anything. But if all sides say, “We’re not going to make disclosures within months of an election,” that may be fair. But they can’t do it selectively.

Mr. Jekielek:

I understand your position on the election now, and that’s good. I understand it’s nuanced. But this kind of activity, which has nothing to do with specific ballots, but it has everything to do with influencing public opinion, precludes people from being able to see both sides of the issue, for lack of a better term. This is the issue that’s concerning to me.

Mr. Dershowitz:

Let’s go back several years earlier when then businessman Donald Trump was trying to influence the election of Barack Obama by falsely claiming that he was not eligible for running for president. It was false on two grounds. First, he wasn’t born in Kenya. He was born in Hawaii. Second, he could have been born on the moon or in Kenya or in communist China and he would still be eligible to run, because his mother was a citizen, and that makes him a natural born citizen. So, it was wrong in every regard. What should the media do with something like that? We know that a story like that might influence the outcome of the election, but it’s patently false. So, we don’t want the government to come in and say, “Here’s the distinction. One story is true. One story is false.” The last thing we want is the government to determine truth or falsity. My view is that all these stories ought to come out. Let the public judge them. And that’s what happened with the Obama argument. It went out there. It was out in public. People saw documents, and in the end most people disbelieved it.

Mr. Jekielek:

Okay. And when the government appears to be putting its finger on the scale, how do we deal with that?

Mr. Dershowitz:

Well, then you can file lawsuits. You can bring legislation.

Mr. Jekielek:

Finally, please talk about this element of systemic racism that we discussed earlier.

Mr. Dershowitz:

Yes.

Mr. Jekielek:

Is the U.S. A systemically racist country? You argue no, because of these changes that we discussed earlier. But there’s lots of evidence that anti-Semitism is very much on the rise in this country, both anti-Zionism and anti-Semitism. What is the relationship? Some people say that Zionism itself is a huge problem. Please talk about this, because you have some very good ideas about it.

Mr. Dershowitz:

There was a very good program by Ken Burns on television about the role of America during the Holocaust. It was so clear that America in the 1920s and 1930s was a systemically anti-Semitic country. Jews weren’t allowed to work in Wall Street. They weren’t allowed to work in law firms. They weren’t allowed to live in neighborhoods, and the government stood behind it. They weren’t allowed to go to certain clubs. That was pure anti-Semitism, and that basically disappeared with the Second World War. What’s come up after that, largely as a result of people from the hard Left like the Berrigan brothers and Noam Chomsky and others, is that there’s a new disguise for anti-Semitism, and it’s called anti-Zionism.

I remember when one of the prominent black leaders, Stokely Carmichael, said, “Zionists are selling us rotten meat in Harlem.” Now, what does that mean? There are no Zionists in Harlem to speak of. They were Jewish butchers, and he didn’t like them, so he called them Zionists and that protected him from attack. Now, we see arguments that Zionists have too much control over the American media. You know, The New York Times is an anti-Zionist newspaper. The Washington Post is certainly not pro-Zionist. So, Zionism becomes a euphemism for Jew. If you say I’m anti-Zionist, you can get away with it, because that’s political. That’s not racial. And in my mind, Zionism is a great thing. I’ve been a Zionist from the time I was born. All it meant is that the Jewish people, like every other people, have a right to a homeland. Zionism is nothing to do with displacing Palestinians. You can be a strong Zionist like I am and believe in the two state solution and believe there should be a Palestinian state.

If there were a word for Palestinian Zionism, I would be one of those, too. I favor a Palestinian state as long as it’s peaceful and non-terrorist and doesn’t demand the end of Israel’s existence. But at universities around the world, and I speak at them all the time, you see these protests against Zionism by people who have no idea what Zionism is. And now added to that is the claim of identity politics. Jews are white and they’re wealthy, which is a myth, of course. They’re not white. For example, with the Jews in Israel, there are many dark skinned people, black people, Ethiopian people, and people from North Africa. And Jews aren’t rich. Some are, but the Jewish religion isn’t anywhere comparable to other religions in terms of richness. So, you have all these myths being circulated and you try to fight them. I go on campuses. I try to fight them. I’ve been canceled by many campuses, partly as the result of that.

Mr. Jekielek:

The question is, where does this come from? I’ll give you an example. I just had Nicole Levitt on the show. She’s a lawyer with one of the biggest anti-domestic abuse organizations in the country. They were basically promoting some social justice-related activities there. She emailed an article about anti-Semitism in the social justice movement, basically saying, “We should cover this as well, since we’re talking about racism.” In response, she got a ton of disapproving emails accusing her of furthering white supremacy. How does pointing out anti-Semitism in the social justice movement promotewhite supremacy?

Mr. Dershowitz:

It doesn’t, of course. It’s part of intersectionality. Every group should work together except the Jews. The Jews are white, they’re rich, and they’re supreme. For anti-Semites, Jews are hated because they’re communists, and they’re hated because they’re capitalists. They’re hated because they’re sexually impotent and weak men. They’re hated because they’re sexually aggressive and strong men. If you hate a group, you can come up with any ideas about them. 

In the history of the world, Israel, in its 70-something years of existence, has contributed more to humankind than any other country of a similar size and in a similar time period, in terms of medicine, biology, physics, and literature. You name it. It’s a miracle. They renewed a language that never existed before. They’ve taken in refugees from around the world. Are they a perfect country? Of course they’re not a perfect country.

But to single out Israel? You say, “But Israel took over land that may have had Palestinians.” Of course, Jews lived there originally. New Zealand is 10,000 times worse. Not a single person in New Zealand now, in terms of the dominant culture, had anything to do with that island. They came from England. And what did they do with the Maori? They killed them and they marginalized them. But New Zealand is now at the UN constantly berating Israel for the way it treated the Palestinians. This double standard is so rampant around the world and I’m fighting against it as a point to principle. One of the reasons I wrote my book, The Price of Principle, is to also get into this issue. And of the social movements, the Women’s March was headed by a virulent anti-Semite. Black Lives Matter was headed by anti-Semitic people. The Million Man March on Washington had Farrakhan as one of its sponsors.

Mr. Jekielek:

Alan, congratulations on your book, The Price of Principle. My final question is, are we forever condemned to be living in this partisanship that dominates our discourse, even within our families? In the book you mentioned the foundation of the family. You say, “My loyalty to the family comes first, even ahead of some of these other things.” But even in the family now, there is this partisanship, with people not talking to each other. What’s the way out here?

Mr. Dershowitz:

There is no clear way out. The pendulum tends to swing pretty widely in the United States, and less widely than in Europe. In Europe in the 1930s, there were only two choices, communism and fascism, or communism and Nazism. In the United States, we had Roosevelt, the New Deal, and compromises. We have been a nation of compromises over the years. Even in the debates leading to the Civil War tried to reach compromise. They couldn’t compromise over that, though. Sometimes we’ve done better, and sometimes we’ve done worse. This trend toward the new McCarthyism on the hard Left is going to be enduring, because today it’s being taught to our future leaders in universities.

I see it having a longer pendulum swing than many of the other things. McCarthyism in the 1950s was gone in ten years. Left wing-McCarthyism will last many years longer than that. So, I’m not optimistic. I’m going to end with the description of a pessimist and an optimist in Israel. In Israel, a pessimist is somebody who says, “Oy vey. Things are so bad they can’t get worse.” The optimist says, “Yes, they can.” And so I’m both partly a pessimist, and partly an optimist. Things can get worse. But I do believe, along with Martin Luther King, that the arc of justice moves in the right direction, but we need to help it. It doesn’t just move. We need to help it. I wrote the book The Price of Principal to try to stimulate debate and discussion. Thank you for putting me on the show to give me an opportunity to speak to your audience about that.

Mr. Jekielek:

Alan Dershowitz, it’s such a pleasure to have you on the show again.

Mr. Dershowitz:

Thank you so much. Be well.

Mr. Jekielek:

Thank you all for joining Alan Dershowitz and I on this episode of American Thought Leaders. I’m your host, Jan Jekielek.

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