Civil Liberties in a Turbulent Age.
By Alan M. Dershowitz.
550 pp. New York:
Little, Brown & Company. $26.95.
''NEITHER slavery nor involuntary servitude . . . shall exist within the United States.'' Does the 13th Amendment prohibit military conscription? Charles Schenck, general secretary of the Socialist Party in Philadelphia, thought it did, and in 1917 he printed a pamphlet to this effect and arranged for it to be distributed to men who were about to be inducted into the Army. When he was arrested and charged under the espionage act with conspiring to cause insubordination, Schenck said that his pamphlet was protected by the First Amendment's guarantee of freedom of speech. Oliver Wendell Holmes, perhaps this country's greatest jurist, disagreed. Upholding Schenk's conviction, he said: ''When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured.'' He also said a couple of other things that have passed into the lexicon of our constitutional lore. Cases like this, he said, turn on whether there is ''a clear and present danger'' that publication will bring about evils that Congress has a right to prevent. And: ''The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.''
''Shouting Fire'' is the 17th book published by Alan Dershowitz, celebrity-criminal defender and law professor at Harvard. It contains 55 short essays on rights and their limitations, particularly in areas like free speech, church-state and the criminal process. Apart from some introductory philosophizing, most of the essays have been previously published and are largely unedited here, though each has a preliminary sentence or two to give a little context. The earliest dates back 35 years; the latest include reflections on Sept. 11.
The title track of this album is a meditation on the hold that Holmes's ''shouting fire'' analogy has on the popular imagination, and the mindless way in which it has been invoked since Schenck v. United States to justify restrictions on our liberties. Let's begin with Justice Holmes's use of it. In what sense is a Socialist pamphlet about the 13th Amendment like falsely shouting ''Fire!'' in a crowded theater? Is it because of its effect, because of the danger that the pamphlet will prevent the government from waging war with an army of docile conscripts? But this argument only works if conscription is a legitimate aim of government, and Schenck's pamphlet denied this. Anyway, all sorts of protected speech have bad effects. Shouting ''Fire!'' is wrong, presumably, not just because of its effect but because of the visceral way it works -- through panic and adrenaline rather than careful consideration of a published proposition. To move forward to last September, maybe bad jokes about terrorism by airplane passengers are like shouting ''Fire!'' But the dangers of the analogy are evident when you consider that the Charles Schencks of today are not those who write ''anthrax'' on an airline napkin, but those who publish their misgivings about the constitutionality of the antiterrorist measures Congress and the president have put in place since Sept. 11.
''Shouting Fire'' is the best of the essays, though it is matched in its energy by Dershowitz's attack on any breach in the wall of separation between church and state, and by his refusal to concede anything to those who criticize his involvement in the defense of people like Mike Tyson, Meir Kahane, Leona Helmsley, Larry Flynt and Claus von Bülow. He gives a chilling account of the hate mail he received for his work in the O. J. Simpson case, and in a passionate vindication of the role of the criminal defender, he does a good job of turning the tables on prosecuting counsel. Criminal defenders, he says, are not the only ones who are blinded by zealotry, who interfere with witnesses or who elicit testimony they know to be perjurious. Yet critics of our criminal justice system rarely focus their scrutiny on the ethics of prosecutors.
Given all this, it comes as something of a surprise to find Dershowitz at the end of the book defending the suspension of certain civil liberties in times of national emergency. He takes his lead from various policies of Israel: preventive detention of individual suspects is fairer, he says, than mass internment based on ethnicity, which is what the United States used the last time its territory was attacked. He advocates targeted assassination as a last resort if it is the only way to prevent suicide bombings. And he is not prepared to rule out torture as a response: he says that torture would have been an ''understandable'' tactic if American security forces had had someone in custody on Sept. 11 who knew which buildings were targets. About the only part of Dershowitz's civil liberties posture that survives his thinking about terrorism is a provocative argument that a lawyer who defended terrorists would be performing a patriotic duty.Continue reading the main story
SHOUTING FIRE: Civil Liberties in a Turbulent Age
Alan M. Dershowitz, Author . Little, Brown $26.95 (560p) ISBN 978-0-316-18141-9
Human rights come from human wrongs, argues famed criminal and civil rights lawyer Dershowitz; only by looking closely at past in justice we can construct a theory and law that attempts a more perfect justice. This collection of 55 short pieces (some new, most reprinted) maps out Dershowitz's thoughts on a wide range of legal and social topics: the role of psychiatry in the legal process, the problems of how the U.S. legal system chooses judges, the misuses of entrapment and "sting" operations even when used to correct an injustice, the history and legal ramifications of the death penalty. Some, like a two paragraph show of support for former Harvard Divinity School dean Robert F. Thiemann, who resigned when pornography was found on his university-owned computer, hardly feel worth reprinting. When Dershowitz is at his best, however, as when defending his defenses of "obviously guilty" clients like O.J. Simpson or asking in a playful and thoughtful essay 'Why Are There So Many Jewish Lawyers?" he is witty, pungent and incisive. Of particular interest are several essays written after September 11, dealing with the danger to civil liberties in time of national emergency and to fair trials for accused terrorists, as well as several ("Wiretaps and National Security Surveillance" and "Torture of Terrorists: Is it Necessary to Do—and to Lie About It?") written before but pertinent now. Some provocative, even essential, material stands out in an uneven collection. (Jan.)
Forecast:This book should do unusually well for a miscellany, spurred by its post-September 11 relevance and Dershowitz's reputation for wit and rigor within his spinning. Look for stepped-up media appearances by the already heavily booked Dershowitz, and short "what's he up to now?" pieces in nonreview venues.
Reviewed on: 01/07/2002
Release date: 01/01/2002