Alan Dershowitz - Case Against the New Censorship: Protecting Free Speech from Big Tech, Progressives, and Universities

Also by Alan Dershowitz

Cancel Culture: The Latest Attack on Free Speech and Due Process

Confirming JusticeOr Injustice: A Guide to Judging RBGs Successor

The Case for Liberalism in an Age of Extremism: or, Why I Left the Left But Cant Join the Right

Defending the Constitution: Alan Dershowitzs Senate Argument Against Impeachment

Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo

Defending Israel: The Story of My Relationship with My Most Challenging Client

The Mueller Report (with an Introduction by Alan Dershowitz)

The Case Against Impeaching Trump

The Case Against BDS: Why Singling Out Israel for Boycott Is Anti-Semitic and Anti-Peace

Trumped Up: How Criminalization of Political Differences Endangers Democracy

Electile Dysfunction: A Guide for Unaroused Voters

The Case Against the Iran Deal

Terror Tunnels: The Case for Israels Just War Against Hamas

Abraham: The Worlds First (But Certainly Not Last) Jewish Lawyer

Taking the Stand: My Life in the Law

The Trials of Zion

The Case for Moral Clarity: Israel, Hamas and Gaza

The Case Against Israels Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace

Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11

Finding Jefferson: A Lost Letter, a Remarkable Discovery and the First Amendment in the Age of Terrorism

Blasphemy: How the Religious Right is Hijacking Our Declaration of Independence

Pre-emption: A Knife That Cuts Both Ways

What Israel Meant to Me: By 80 Prominent Writers, Performers, Scholars, Politicians and Journalists

Rights From Wrongs: A Secular Theory of the Origins of Rights

America on Trial: Inside the Legal Battles That Transformed Our Nation

The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved

The Case for Israel

America Declares Independence

Why Terrorism Works: Understanding the Threat, Responding to the Challenge

Shouting Fire: Civil Liberties in a Turbulent Age

Letters to a Young Lawyer

Supreme Injustice: How the High Court Hijacked Election 2000

Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law

Just Revenge

Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis

The Vanishing American Jew: In Search of Jewish Identity for the Next Century

Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case

The Abuse Excuse: And Other Cop-Outs, Stories and Evasions of Responsibility

The Advocates Devil

Contrary to Popular Opinion

Chutzpah

Taking Liberties: A Decade of Hard Cases, Bad Laws, and Bum Raps

Reversal of Fortune: Inside the Von Blow Case

The Best Defense

Criminal Law: Theory and Process (with Joseph Goldstein and Richard Schwartz)

Psychoanalysis, Psychiatry, and Law (with Joseph Goldstein and Jay Katz)

Copyright 2021 by Alan Dershowitz

All rights reserved. No part of this book may be reproduced in any manner without the express written consent of the publisher, except in the case of brief excerpts in critical reviews or articles. All inquiries should be addressed to Skyhorse Publishing, 307 West 36th Street, 11th Floor, New York, NY 10018.

Hot Books may be purchased in bulk at special discounts for sales promotion, corporate gifts, fund-raising, or educational purposes. Special editions can also be created to specifications. For details, contact the Special Sales Department, Skyhorse Publishing, 307 West 36th Street, 11th Floor, New York, NY 10018 or .

Hot Books and Skyhorse Publishing are registered trademarks of Skyhorse Publishing, Inc., a Delaware corporation.

Visit our website at www.hotbookspress.com.

10 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data is available on file.

ISBN: 978-1-5107-6773-7

eBook: 978-1-5107-6774-4

Cover design by Brian Peterson

Printed in the United States of America

Contents

Acknowledgements:

Thanks to Maura Kelley for her help in assembling, in organizing, and in typing the manuscript; to Aaron Voloj for his research assistance; to Tony Lyons, Oren Eades, and Brian Peterson for their help in producing the final product; and to my wife Carolyn, my son Elon, my daughter Ella, and her fiance David for their constructive criticisms.

Dedication:

This book is dedicated to my former student, my friend, and my colleague for more than half a century: Harvey Silverglate, an unyielding civil libertarian and an uncompromising defender of free speech.

INTRODUCTION

The New Censors: Can Freedom of Speech Be Saved from Progressives, Social Media, and Universities?

F reedom of speech in America is facing the greatest threats since the Alien and Sedition acts of 1798, which unconstitutionally punished false, scandalous or malicious writing against the United States.

Todays threats are even greater than during McCarthyism. This is true for three important reasons: First, todays censorship comes, for the most part, from so-called progressives, who are far more influential and credible than the reactionaries who promoted and implemented McCarthyism. The current efforts to censor politically incorrect and untruthful views are led by young people, academics, high tech innovators and writers yes, writers! These self-righteous and self-appointed Solons of what is and is not permissible speech represent our future, whereas the McCarthyite censors were a throwback to the past a last gasp of repression from a dying political order.

The new censors are our future leaders. They are quickly gaining influence over the social media, the newsrooms of print and TV, the academy, and other institutions that control the flow of information that impacts all aspects of American political life. These censorial zealots will soon be the CEOs, editors-in-chief, deans, and government officials who run our nation. They are destined to have even more influence over what we can read, see, and hear. If todays attitudes toward freedom of speech by many millennials become tomorrows rules, our nation will lose much of its freedom of thought, expression, and dissent. Those of us who cherish these freedoms must become more proactive in their defense.

Second, these new progressive censors base their opposition to untrammeled freedom of expression on policies supported by many Americans, especially centrist liberals: anti-racism, anti-sexism, anti-homophobia, anti-hate speech, anti-Holocaust denial, anti-climate denial, and anti-falsehoods. Moreover, these arguments are being offered by people we admire and love. I call them the good censors. To paraphrase Pogo: We have seen the enemy of free speech, and he and she are us! It is much more difficult to combat us than they .

Third, the current regime of censorship is more dangerous because for the most part it is not prohibited by the First Amendment: it is promulgated and enforced by private parties who have their own First Amendment rights, rather than by government agents who are bound by the Constitution to make no law abridging the freedom of speech. When the government suppresses speechas it did during McCarthyism by means of Congressional Committee and other state actorssuch suppressions can be challenged in the courts, as they were during the 1950s. To be sure, some of the McCarthyite suppression came from private media companies, such as Hollywood studios and television networks (blacklists and Red Channels). They, too, were more difficult to challenge than governmental censorship and suppression.