A Moment With... Alan Dershowitz

Author of Finding Jefferson

“I’m a collector,” are the words with which Harvard Law Professor Alan Dershowitz begins his new book, Finding Jefferson: A Lost Letter, a Remarkable Discovery and the First Amendment in the Age of Terrorism. The book is a departure from his recent commentaries on the Arab-Israeli conflict in The Case for Israel and The Case for Peace. On September 8, 2006, Dershowitz entered the Argosy Bookstore in New York in the hope of finding some Brooklyn Dodgers memorabilia. Instead, the longtime admirer of Thomas Jefferson and defender of civil liberties found something even better: an unpublished letter Jefferson wrote in 1801 concerning freedom of speech. Dershowitz spoke to Moment’s David Zax about his find and why it is important in our post 9/11 world.

Why is Thomas Jefferson one of your heroes?
He’s kind of the inventor of America, he was the man who understood rights and understood government. I’m not a hero-worshipper, so it’s easy for me to admire Jefferson with his faults. Were I a hero-worshipper, it would be impossible to have him as a hero. But in the Jewish tradition, our heroes have flaws. Abraham, Moses, Aaron—everyone who has any significant role in the Bible is a deeply flawed human being.

The letter you found shows that Jefferson held more liberal views about freedom of speech than was thought. What’s the story behind the letter?
Jefferson had just won the most contested election for president, and he was responding to letters. One of them came from this fellow named Boardman, who asked his opinion on a sermon that had been delivered by a famous Jefferson supporter in Connecticut—the Reverend Stanley Griswold—and widely circulated. It had been published, like Common Sense and other pamphlets in those days. It was getting a lot of attention. Jefferson had come into office having opposed the Alien and Sedition Acts and suddenly one of his big supporters, Griswold, makes a sermon saying it’s okay to have opinions, but when you express them in a way that might encourage violence, you have to be criminally responsible. This was a direct challenge to Jefferson’s conceptions of freedom and of limited government. So he decided to write a quite substantive response. Jefferson very often just wrote very curt responses, particularly to people he was not intimate with. Clearly it was designed to be read by many. And that’s the tragedy: that it was hidden away for 205 years, and nobody saw it. There’s a bashert quality to my finding it because I think most collectors finding a letter like this would just hide it, put it somewhere, or maybe clip off the autograph. But for me the substance of the letter is the most important thing. It’s a letter that proposes five strong arguments, all of them relevant today, for why the government should not intrude on speech and advocacy, but should wait until an overt act occurs.

You write that the Jefferson letter suggests how we might respond, among other examples, to imams whose speech could incite their followers to violence. How would Jefferson come down on this question?
I think his inclination would be to say, Let them preach, as long as they limit themselves to preaching. We should not allow the conscience of the judge to decide when they’ve gone over any lines, and we can comfortably wait for the first overt act of violence, and so long as there’s a marketplace of ideas, we have nothing to fear. That would be his initial inclination. Then he would think to himself, “Gee, you know, two of the conditions that I think are prerequisites to freedom of speech may not exist in that situation.” There may not be a marketplace of ideas. It may be that he’s preaching to members of his congregation who don’t read newspapers or watch television, who don’t have access to counterarguments. When suicide bombers are sent out on their mission, they’re never allowed to speak with family or friends, they’re put in a closed group which will simply reaffirm their commitment to martyrdom. So the marketplace is closed, number one. Number two, and even more importantly: Maybe we can’t wait for an overt act in a situation like this. Maybe the overt act, if it were to occur, would be too dangerous. And so maybe this is an appropriate instance for preventive intervention, early intervention into speech. And then I think he’d say, “No: In the end, free speech may not be without dangers, but it’s far less dangerous than a regime of censorship.”

You’ve said the letter could run as an opinion piece today.
It would need a few changes, but it’s very, very timely. You could write it as an op-ed against the Patriot Act in some ways.

Why are Jefferson’s letters a particularly important part of his written legacy?
They are his written legacy, essentially. He wrote as many as 18,000 letters; he wrote letters every single day, and he understood that the letters were the window into his views. And he wanted his letters published and available, in general. He was the perfect letter writer, because he didn’t have a systematic theory. Jefferson was a man who had a short attention span, and for him the op-ed or the several-hundred-word letter was the perfect vehicle for communication.
The letters are what contain his political views—his view on the Constitution, his views on free speech, his views on the widest assortment of issues—and he was a very opinionated man. And he was not a speaker, he was not much of a conversationalist. He was quiet. He did not have a mellifluous voice, he didn’t have a voice that carried, and so he rarely, rarely gave a speech. His State of the Union messages were delivered by clerks.

Since he preferred to put out a few hundred words at a time, was he akin to a founding-era blogger?
In many respects he’d be an ideal blogger. And like bloggers he was also a terrible speller. But he didn’t have WordPerfect or any correcting system. In his defense, spelling in those days was more art than science.

You mention that Jefferson occasionally cited the Talmud. What was his exposure to Jews and Judaism?
He, as all the founders, was very, very familiar with Jewish tradition. Madison spoke Hebrew. Almost all the founders could read the New Testament in Greek and the Old Testament in Hebrew. Jefferson, in many of his letters, refers to Jews and Jewish theology, as do Hamilton, Madison and Adams. They didn’t know Jews. They may have known one or two, merchants somewhere in a big city in Virginia, or something like that. And there’s a tremendous anti-Catholic bigotry that runs through the writings of the Founding Fathers, virtually all of them, but you don’t get that about Jews at all. You get Jefferson’s complaining about the Jewish Bible. He doesn’t like the Old Testament, he doesn’t like the vengeful God of the Old Testament, he certainly doesn’t like the commandment that says sins of the fathers shall be inflicted on children for three to four generations. He didn’t like formal religion, but didn’t rail against Judaism because Judaism didn’t influence other people’s lives. What he liked about Judaism was that it didn’t try to proselytize or enforce its views. He very much wanted religion to be a completely private matter. He wouldn’t even tell his children what his religious beliefs were, and he was very much opposed to the Bible being taught to children. He wanted the Bible to be read like Thucydides, with a critical eye.

Should Jews, with our rich traditions involving words, be especially protective of free speech?
I would say that Jews have benefited probably from speech more than most other groups. We are the people of the book. And we are the people of literacy. All through history Jews have been more literate than their counterparts. Jewish education required literacy. We’re also a group that I think does better in a non-violent environment. As Freud said, the first person ever to hurl an insult instead of a rock was the founder of modern civilization. And we’re pretty good at hurling insults.