Dersh & Me
My dad wants to know if I've gone to see Alan Dershowitz. He asks every other week. Enough. Enough, already. Any man who has two full-time assistants (and this is when he is on sabbatical) is not leaping out of his leather-bound chair to lunch with me at Bartley's Burgers. The Jewish Federation of Cincinnati pays the man $15,000 to speak. He's consulting with Mia Farrow, and mike Tyson is on hold from inside his cell.
But you can't blame my dad. If the refrain of Jewish mothers is to eat well and dress warm, Jewish fathers just want their Harvard kids to go see The Dersh. And now Dersh has a new book. He's working on a novel, even. I figured that this was the stuff that gets a Crimson reporter in the door.
I was right. They even gave me a copy of Contrary to Popular Opinion. (No need to go through the publisher. Dershowitz has the entire length of a book-shelf filled with copies.)
I also asked for a press bio--the interviewer's cheat sheet complete with names, dates and the number of L's in Von Bulow. It starts with all the usual praise one expects from the dust jacket of a hardcover. Time calls him "the top lawyer of last resort in the country--a sort of judicial St. Jude." I read on...praise from Newsweek, Business Week, Life, Esquire, Fortune, People New York, TV Guide..
Wait. TV Guide? Yes. And there's more. The bio goes on to list the 27 major TV and radio shows on which Dersh has been interviewed, 24 journals and magazines in which he has been published--not counting the five newspapers that carry his syndicated column.
Then there are the books. Five. Then the clients: Anatoly Scharansky, Claus Von Bulow, Leona Helmsley, Michael Milken, Jim Bakker, Mike Tyson, Penthouse, Frank Snepp, John Landis, John DeLorean, David Crosby, Patricia Hearst, the Tison brothers, various death row inmates, Rabbi Meir Kahane....There are more.
And then the awards. Most of them are big-time honors. One wonders, though, why the bio includes the "Golden Plate Award." And why exactly does it mention the celebrity shootout at the Boston Garden--"he hit 13 free throws in 90 seconds? Nice shooting, but who cares? The end of the bio is a copy of a special "Dersh" card from Trivial Pursuit.
Clearly, in addition to his distinguished law career, Dershowtiz is an excellent self-publicist. He wins both fans and enemies this way. In the time that it's taken me to transcribe, edit and introduce this interview, five friends and colleagues have taken time out to tell me their opinion of The Dersh. "He's sold out!" one said. "What a sham!" said another.
But even when The Dersh loses, he wins. This is the man who says he likes it when his students hate him. He likes to be "in your face."
I believe him. I've been to the other side of the Dersh mystique. And nothing makes the man happier than the attention of harsh critics.
Except praise, of course. And he gets plenty of that from TV Guide.
How is your book going over? Very well. People, I think, are sick and tired of the conventional wisdom and popular opinion and they're tired of the group thing--that they can predict what you're going to say about a subject by what organization you belong to or what school you went to. If there's one thing that I try very hard to do, it's to think through every position for myself. I'm very strongly pro-choice, but I think Roe v. Wade should be overruled. I'm also, although I'm a strong advocate of freedom of choice, a strong opponent of Clinton's making that a litmus test for a nomination to the Supreme Court. So, You know, my opinions come out unpredictable in many ways. I'm a strongly committed Jew and yet I support the right of holocaust deniers and of Nazis to spew their poison. I think of myself as a feminist and yet I think that women who make accusations of rape cannot hide behind anonymity, must have their names disclosed. You know, my views don't fit neatly into any pigeonhole.
The First Amendment, though, is consistently sacred in your writings.
It's not a sacred text. I could never point to the Constitution as a sacred text because it was written by a bunch of white male bigots and landowners. I mean, I would not have voted to ratify the Constitution of the United States even with the Bill of Rights because I could never have voted for a document that makes African Americans three-fifths of a human being. So I would not have voted for the original Constitution. I would have fought against it. It's not the First Amendment that's sacred to me, it's freedom of speech that's sacred.
Do you think the First Amendment is adequate though?
I think the First Amendment is a very positive statement. It didn't mean what we now want it to mean. It didn't mean that there shall be no law abridging freedom of speech. What it meant was Congress shall pass no law abridging freedom of speech, the federal government could make no law. And of course within a decade of the enactment of the Bill of Rights we had the Alien and Sedition Act which was one of the most oppressive political correctness doctrines ever enacted.
What strikes me from reading your book is your role as cultural critic--a man of letters, as they would have said in the 19th century. Did you have this in mind when you first began to study law?
No, law was always first in my mind. I think that role became obvious to me when I first came to Harvard in 1964. There I was at Harvard (which was the Establishment). And yet because of who I was a--Jewish kid from New York who didn't want to change--I found myself to be very much of an outsider. I was an outsider in an inside institution.
My own sense as a teacher is that you can't make students think without making them squirm. I'm appalled at the amount of bad teaching at this institution in the sense of teachers who want to be popular and who are happy when their classes end with a bunch of smiling students.
This is not a massage parlor. This is a university. If you want to feel good at the end of a class, go get a rub down. If you want to think, you have to sweat and squirm and be made very uncomfortable in class.
When I leave a class with my students smiling I have failed. When I leave a class with my students angry, squirming, furious at me and furious at what they've been confronted with in class, I've had a successful class.
That's why I make it a point both in my writing and in my teaching to confront the conventional wisdoms whether the conventional wisdoms be feminism on campus today or gay rights or civil rights. I support all those doctrines, but not in class.
If you're an opponent of the death penalty and you can't beat me in an argument then you're not going to beat Justice Rehnquist, or Justice Scalia. So I make the argument for the death penalty and try to make you come up with better arguments. If you're a strident feminist who believes that convicting accused rapists is more important than civil liberties, you're going to have to make that argument to me successfully. I'm not just going to pat you on the head and say, "Nice argument."
It's interesting that you say the University brought this out in you because many people, like Russell Jacoby in his book The Last Intellectuals, argue that the universities and the tenure process are signaling the end of broad cultural criticism since academics are forced to impress the chairs of the various departments. They have to confine themselves to writing to their colleagues.
I think there is some truth to that. When I think about the law school here where people seem to take sides--either your a "Crit," a member of the critical legal studies, or you're in law of economics. I can't imagine myself being a member of a club like that.
I also think it's more subtle than the way some of the more recent critics have put it. Tenure is a necessary evil. Some people emphasize evil. Some people emphasize necessary. But there's only one justification for tenure. Tenure gives you the right and the responsibility not to be popular.
I think too many professors are looking at their student evaluations and looking at their popularity. I can understand that until you get tenure. But the minute you get tenure, it seems to me you have an obligation not to care what your students think, not to care what your colleagues think, but to pursue an agenda of seeking truth through your own rights.
You don't have to worry in an institution like this that we'll breed conformity. We're so different. It would be better if we were even more diverse but we have a tremendously intellectual group of people and if people only thought things through for themselves and stopped asking themselves, "Will this get me admitted to this club or that club? Will this make me popular with the students? I think you'd have better teaching and students would get more out of the school.
In the Stephen Thernstrom case, he felt like he couldn't teach with the protests and the disruptions. Do you think he had an obligation to continue on?
I think the University had an obligation to make it more comfortable for him to teach as he chose to teach.
In the movie version of Reversal of Fortune, Claus Von Bulow confronts you, saying that your fees are exorbitant. And your response is, "I'm going to squeeze you for whatever you're worth because there are many people who can't afford top notch representation."
If I'm going to represent someone rich, I'm surely going to use his money to help defray the expenses of other cases. For example, the two boys who were on death row--the boys we were portraying in the movie--we just won their case this part year. That case cost a fortune to pursue and we had no resources to do that, not even expenses. So I used the fees that I earned from Von Bulow and Milken and Helmsley to pay for these boys on death row.
Half of my cases are pro-bono at any given time. I have a pro-bono fund that I put some portion of my fees into and we use that whether it's to represent boys on death row or to represent a woman whose children have been taken away from her. Half my cases are pro-bono.
And that hasn't changed?
No, it hasn't changed.
Because from the public point of view, there's always another headline around the corner.
It's a self-fulfilling prophecy. The media only focuses headline cases. For example, when we won the case of the two boys on death row--it's called the Tison case--I couldn't get any attention. None of the media would focus on that case because they weren't famous. And when we won some other cases in this office that we're very proud of, the focus was always on famous cases. So you get yourself in a little bit of a catch-22 when you take famous cases because they assume that's all you're taking. Most of the cases involve obscure defendants.
Your other criterion with famous celebrities is that you only accept a case when there's a critical issue involved?
That's right, that's still true.
What comes into play in the Mia Farrow case?
I took that case because I thought it could be resolved. I think one of the big issues that's going come up in the next decade is how changing family structures will require a redefinition of the definition of incest. Incest is no longer a genetic factor only, it's a psychological factor.
My own view is that when Woody Allen made a decision to have sex with his daughter, the 19-year-old daughter of his lover, he created a psychologically very damaging competition between mother and daughter. Not to say that should be prohibited by law, but when Woody Allen said he didn't even see the moral dilemma, he was showing his obtuseness as a moral person.
And where does the law come in?
Well the law comes in...we're trying to undo the adoptions at this point and create a situation that's in the best interest of the children. This is a tough case for me because Woody Allen is a real hero and I knew him. I still know him and I still admire him as a filmmaker, but I don't admire him as a person.
He does that happen though? How did you come to take that case?
She called me. And she asked me if I could help resolve it. She was in a panic. It was a crisis and I know her and so I thought I could help. I hope I still can help.
Do get requests from celebrities that you turn down?
Oh, all the time. I can't tell you who they are because that would disclose lawyer-client confidence. But I can tell you that I've turned down cases from some of the most famous celebrities in the world.
And you know I had celebrity cases many, many years ago. It's just that the media didn't pick it up. For example, the case I wish I had lost was a case in which I helped represent John Lennon when he was being deported from the United States for marijuana. We won that case...I wish we had lost it. If he had been deported he'd be alive today in England instead of dead in the United States.
So that's a case that goes back many many years. I've represented David Crosby of Crosby, Stills and Nash but there was no attention paid to that because it was an ordinary criminal case. I've consulted on a case with Axl Rose in St. Louis...
Was the Axl Rose case one of obscenity on stage?
No, it was a case of jumping off stage and attacking members of the audience.
Another thing from Reversal of Fortune which seems to resonate right now is the notion of rich people hiring their own police. That's one large objection to Ross Perot.
I think it's very important that law enforcement be left to public officials and that rich people can't use private police to circumvent constraints of the Constitution. Rich corporations are hiring their own police forces. Ross Perot is not the only one, although he's the most visible. Almost every major corporation in America has a "security service," often former FBI and police officials who know how to violate the Constitution without running afoul.
What do you think about the latest developments at the Law Review.
I don't really know enough about it to comment. I don't spend my time thinking about the Law Review at Harvard. I think it's too elitist an institution. Too many faculty spend too much attention on too few of the students who are on the Law Review. I try to devote my attention to students who are not on the Law Review.
There's definitely an activist element to your personality. What issues strike you and make you angry?
Speech codes. Political correctness. The lack of courage of students to stand up to many students.
The Supreme Court decision from this summer won't have much impact on campuses, though, will it?
It's not so much the law. People argue all the time that the First Amendment shouldn't apply on private colleges. I agree with them. It shouldn't apply. We should have more speech on private colleges than society in general because we're a university and there should be no constraints. The only constraints should be time place and manner. Obviously we can't have students disrupting classes or shouting down church services.
If a student at Harvard wants to be homophobic or sexist or racist he or she should have the right to express those views.
Those views exist out there. They'redespicable, but we should have confidence in ourability to defeat them in the marketplace of ideasand not resort to censorship. What appalls me inmature students who demand that they be treatedindependently when it comes to their sexuality,when it comes to their drinking or any aspect oftheir personal lives, run to mommy and daddy deanor president and demand to be protected fromoffensive speech.
For example, a woman flew a Confederate Flagoutside her dorm room. What a wonderfulopportunity to educate. And I thought that theUniversity blew it, including President Bok.
And then some idiot student put up a Nazi flag.To do what? To show that she can be as outrageousand offensive? And another student said she couldnot study knowing that there was a Confederateflag out there.
My answer to her is that she is in the wrongplace. If you can't study with a Confederate flagout there then you ought not to be at Harvard.This is a diverse institution and we acceptNortherners and Southerners and we accept peoplefrom every different background. You better learnhow to study.
Harvard's explanation of what you callspeech codes is that they don't regulate speech,that they only regulate behavior when itconstitutes harassment.
I think they cross the line. What constitutesharassment is in the eye of the beholder. I'llgive you an example. At the Dartmouth Review, afew students were disciplined for "vexatious,aggressive and confrontational speech." Now, Icouldn't think of a better advertisement for mybook than "vexatious, aggressive andconfrontational." I think those are very positivewords. It's in-your-face kind of speech and I likein-your-face kind of speech, that's my style.
I'm very concerned even about Harvard LawSchool's proposed sexual harassment code becauseit could conceivably have an impact on the contentof ideas expressed in class.
I have to tell you that when I express my viewsabout date rape in class, I offend some students.And I think that's good teaching. Some peoplemight disagree. But offending people is a way ofgetting their attention. And as long as you are anequal opportunity offender and it's notphysical...You know, when you go to court you'regoing to be offended by what the judges say.
I'm trying to teach my students to be excellentlawyers and I don't want to have to worry aboutsome kind of speech code or some kind ofharassment rule giving people power to censor oreven making me have to think twice about what Isay. I think spontaneity is essential in teaching.There are ways of defining harassment. Again,time, manner and place ways of definingharassment. Repeated phone calls in the middle ofthe night--things like that--but it never shouldbe done in terms of content alone.
I think we're seeing many on the left using theexcuse of harassment to try to get at content. Forexample, one of our professors at Harvard arguesthat the Revue, which was just a document, a pieceof paper, constituted sexual harassment. Thattells me a lot about how sexual harassment codescan be used. So I want to err on the side of morespeech and not less speech.
We have such short memories. When I went tocollege in the '50s there were speech codes andthere was political correctness. But it was fromthe Right. It was called McCarthyism. There's adifference. To day speech codes don't have thesupport of government so they aren't nearly asdangerous.
I'm also appalled that the reactionaries oncampus tend to be the big defenders of freespeech. I think it's a lot of hypocrisy. A lot ofthem wouldn't defend free speech unless it wasdirected at them and unless they were the victimsof censorship. At any given time at a universitythere are only going to be a few handfuls ofpeople who genuinely believe in neutral freespeech for everybody. Mostly, as Nat Hentoff putit so well in the title of his book, its FreeSpeech for Me--Not for Thee.
The notion McCarthyism has become a powerfultool of censorship itself, though, hasn't it? Whatis defined as political correctness has become sobroad as a condemnation and encompasses so manydifferent ideas...
I understand that. I only apply McCarthyismwhen people want to censor. If people want toevaluate people in terms of their own politicalcorrectness, that kind of intellectualmasturbation, I have no problem.
As long as they don't use it to constrain, theright to swing your fist ends at the tip of mynose. And that goes for censorship as well. Ifyou're trying to censor me, then we're no longertalking about your definition of correctness,we're talking about how you impose it on me.
Pornography is a big topic in your book. Alot of anti-pornography people on campus argue notthat they should ban Playboy or even the worsthardcore porn, but that the publishers should beheld accountable.
That's the same thing. Should the publishers offeminist material be held responsible if somefeminist reads it and shoots into ReadingInternational bookstore as a feminist did a coupleof years ago?
When the film The Burning Bed--whichshowed a woman killing her husband because herhusband had abused her--was shown on televisionand four women killed their husbands saying theyhad been influenced by that TV show...Should theTV show be responsible for that?
It's an idiotic position. It's just idiotic andit's simply a mask for censorship. It seems to methat the First Amendment clearly dictates that ifyou have the right to express your point ofview--whether you're Karl Marx or JesusChrist--you then can't be responsible if peoplemisuse your point of view.
Can you imagine what would happen if thepublishers of Marx were responsible for every actof violence done in his name? Or the publishers ofMao or the publishers of Andrea Dworkin?
I mean, Andrea Dworkin has probably caused moreviolence than Playboy magazine. If you have aFirst Amendment right to say or do something, thenit's very difficult to argue that we should havecensorship through the back door of civilliability.
It denies responsibility. Are rapists going toget up in court and say "I didn't do it, thePlayboy made me do it." And I'm appalled thatintelligent students at Harvard University wouldbe taken in by that claptrap.
Your office is filled with souvenirs of yourlife as a lawyer-celebrity. What are some of themost fun things you've been able to do because ofyour prominence?
Everything I do is fun. That's why I wouldn'ttrade my life for anything.
I wouldn't take a Supreme Court appointment. Iwouldn't take a presidency. I wouldn't take aCabinet position. I'm having too much fun.
I'm taking advantage of my tenure. I'm invitedby my tenure to say whatever I think and I do it.And what could be more fun? It's an exhilaratingfeeling knowing that the KGB or the Harvardthought police is not going to come after you.
What about things that purists wouldconsider beneath them? For example, I understandyou've done some consulting for the People'sCourt.
Sure, I love that. I like popular culture. Ithink to be a lawyer in the real world you have tounderstand popular culture. I watch People'sCourt, I like the show and I like Joe Wapner.
What's not fun is meeting celebrities who areyour clients. Because you meet them in times ofcrisis and it's always very difficult. It's veryhard work and it involves a lot of very difficultemotional times for people. There aren't a lot ofsmiles