Alan Dershowitz warns Big Tech’s censorship—like YouTube removing his vaccine debate with Bobby Kennedy Jr. or Amazon delisting When Harry Became Sally—poses a greater free-speech threat than government, citing unchecked corporate power despite First Amendment protections. He rejects the "Trump exception" to speech laws, arguing Brandenburg precedent shields even inflammatory rhetoric unless it incites violence, and criticizes figures like Tribe for abandoning constitutional principles. Dershowitz’s Free Speech Club forces members to defend abhorrent views (e.g., Nazi propaganda) to uphold Voltaire’s ideals, while proposing antitrust action and revoking Section 230 to curb platform monopolies—though he opposes forced "common carrier" status. The core conflict: private actors silencing ideas, not governments, now dictates what society hears, eroding the marketplace of ideas. [Automatically generated summary]
So, as I said before, anyone left or right who is a friend of free speech is a friend of this program.
We had Floyd Abrams on a while back, another liberal famous defender of free speech.
And Alan Dershowitz is another one.
I think it is the line in the sand that separates Americans from non-Americans.
Alan Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School, one of the most renowned lawyers in the world.
He's handled many famous free speech cases.
And he's got a new book called The Case Against the New Censorship, which I am well into.
And it's really interesting, really smart, and good.
Alan, thank you for coming back on.
It's good to see you.
Well, thank you.
You know what separates, though, Floyd Abrams and I, Floyd and I, have been battling together for free speech cases since the Pentagon Papers, but we divided over Trump.
Floyd Abrams, for some reason, and I still haven't figured out why, said that President Trump's speech on January 6th, which I abhor as a speech, was not protected by the Constitution, did not come within the Brandenburg print.
He signed a letter by hundreds of academics calling that argument essentially irresponsible and frivolous.
I continue to make it and continue to make it.
I didn't like the speech, but it was clearly protected by the First Amendment when the president calls for peaceful, patriotic protests to let your voices be heard.
What could be more covered by the First Amendment?
And why do you resolve doubts against the First Amendment just because it's Donald Trump?
You should always resolve doubts in favor of the First Amendment.
So why don't you have Floyd and me both on the show and we can discuss this issue because we're good friends and I admire him enormously.
We just disagree about this one issue.
I would like to do that.
I did not know that he was actually, I know about that petition, but I did not know he was on that petition.
I was shocked.
It's shocking.
Can you just explain so people know what you're talking about, what the Brandenburg principle is?
The Brandenburg principle is the single most important First Amendment case of the 20th century, which is where the First Amendment really came into being.
It didn't exist really in the 19th century as a matter of law.
And the Brandenburg was a Nazi, terrible Nazi who stood in front of a large crowd, you know, with crosses and nooses and you name it, and called for people to take revenge on Congress, et cetera, and horrible, hate-filled speech.
And the Supreme Court said, I think eight to nothing when Justice was not on the case, that it was protected by the Constitution, that it was despicable speech.
It was like the Nazis marching through Skokie, Illinois.
And I've always been on that side of the case, and so is Floyd.
But, you know, when it comes to Trump, there are some who have made the Trump exception.
That's okay, because he's gone now.
But I don't want to see the Trump exception become the rule.
Professor Lawrence Tribe now would make it the rule because he follows the crowd and the fads wherever they go.
So now the fad is to not prioritize the First Amendment, and Tribe is there along with others.
And I'm going to stick to my principles and always advocate free speech and always err on the side of more speech rather than less speech.
Now, the book that you're writing now, though, largely concerns this threat to free speech that's not from the government.
It's really not covered by the First Amendment.
It is the threat from corporations, from social media.
You call it the greatest threat to free speech since the Alien and Sedition Act, which were in 1798.
So that's a long time ago.
Why is it so threatening?
Because I completely agree with you about that, by the way.
Why is it so threatening?
You know, starting in 1969, I have been litigating First Amendment cases.
I argued my first case in the Supreme Court in 1969 on behalf of a terrible movie called I Am Curious Yellow, an anti-war movie which had a little bit of sex in it.
I then argued the Hare case, the Pentagon Papers case.
I was the law clerk in the New York Times versus Sullivan.
We win all the cases against the government.
The government is an easy target when it comes to the First Amendment because the First Amendment says Congress, which has been interpreted to mean government, shall make no law abridging the freedom of speech.
So when the government tries to censor, it's extremely dangerous.
But in America, they lose all the time.
Now we have a situation where the censors are coming from the private sector.
They too have their First Amendment rights.
And that right includes the right to censor.
They're wrong to do it, but they have the right to do it.
Not only that, but the people who are on the forefront of censorship are good people.
They're our nephews, our children, our friends.
They believe in equality.
They're against racism and sexism and homophobia.
We're on the same side that they are.
They just don't understand the need for free speech.
As Brandeis once said, the greatest dangers to liberty lurk in well-meaning people, zealous but without understanding.
And that represents the new approach, the new censorship.
Good people doing bad things for good reasons.
You know, I always, whenever I read your stuff, this is the argument that always bothers me because I'm a conservative.
I'm a conservative because I'm a liberal.
I'm a conservative because I think that the conservatives is a liberal.
Are you sure these are good people?
Are you sure that the logic of their philosophy has not led them, you know, under the name of being opposed to racism, under the name of being in favor of equality?
Are you sure it hasn't led them into actually a moral error?
Well, it may have, as to some, but I have met people who really, really are good, really want to see the world better themselves.
You know, look, let's remember, too, being young is not a guarantee of being on the right side.
The people who first burned the books in 1933 in Munich were students.
The people who led the campaign to murder opponents during Stalin's regime were students.
The people who helped overthrow the country in Cuba under Castro were students.
The people who cleaned out Tiananmen Square as the result of Mao, many of them were students.
Students have been on the wrong side of every cause in history.
And so you're right.
Some of these students do become bad people.
But I'm going to give them the benefit of the doubt.
And I certainly know some very good people who are in favor now of censorship.
And they're harder to fight against.
As Pogo said, we have seen the enemy and they are us.
So one of the things that I keep hearing people say is that you cannot stop Twitter, Facebook from censoring because they too were protected by the First Amendment.
But Lincoln made the argument that the Constitution is based on the Declaration.
And the Declaration says our rights are given to us by God and the government is formed in order to secure those rights.
So if our right to free speech is given to us by God and the government is there to secure our rights, if there are free speeches taken away by Facebook, doesn't the government suddenly have the power to act in some way?
I don't think I've ever said this before, but Abraham Lincoln was wrong.
Not Bill of Rights.
The Bill of Rights was a lawless, revolutionary document, which of course had to rely on God because they didn't have law on their side.
Then they passed the Constitution.
There's no God in the Constitution.
It's all about law.
The Constitution is a conservative document.
Hannah Arendt once said that the best way to turn a revolutionary into a conservative is have them win.
Then they have to govern and they become conservative.
So the writers of the Constitution did not believe necessarily in the same inalienable rights that Jefferson wrote about in the Declaration of Independence.
They didn't want to give people power to overthrow them the way they took the power to overthrow Great Britain.
So I've never been a supporter of the claim.
I own a copy, an early copy of the Declaration of Independence.
I value it and I love it.
I also own some early copies of the Constitution.
These are, you know, these are my Bibles in some ways.
But I just actually wrote an introduction to a short book on the Constitution and the Bill of Rights, in which I make the point.
You can't imagine more different documents than the Declaration, God, natural law, no legal basis, the Constitution, which is a boringly structured document, which has separation of powers and checks and balances and all of that.
Remember, Alexander Hamilton didn't even want a Bill of Rights because he said, you need a Bill of Rights.
Congress doesn't have the power to restrict freights or to establish religion or to quarter troops.
So why should we specify the rights?
That'll make it sound as if the government has even more rights than the Bill of Rights denies them.
So, you know, they're very, very different documents.
And I don't believe that you can, I wrote another book about this, Rights from Wrong.
I don't think you can derive rights from God because there are too many gods.
There are too many interpreters of gods.
There are too many ways in which God has been misused.
I just think you have to be more of a textualist.
All right.
Well, even though I don't agree with you, let me make a different argument then.
Why Specify Rights?00:03:46
If we indeed have the right to free speech, if that is something that we can assume we have for some reason, but if we have it, and it can be gutted by Facebook, what good is it?
Well, what good is it is it prevents the government from gutting it, but it's not complete.
It's not perfect.
If you take away Facebook's right to censor, you're taking away their freedom of speech.
Remember, a very important Supreme Court decision was when the Miami Herald refused to publish, I think it was, refused to publish a letter to the editor correcting something they had written.
And there was a Florida statute that said if a newspaper says something about somebody, they have to have a right to respond.
Spring Court said, no, no, no, the right to free speech by a private person includes the right not to publish anything.
So we have to fight back in different ways.
Number one, we should take away their exemption under Section 230 of the Decency and Communication Act, which treats them like platforms, even though they really are publishers.
Number two, we can, if they get too big and engage in predatory activities against competitors like Rumble, who is trying to come in now and not censor material, we can fight them in the antitrust courts.
But the one thing we can't do, I think, is make them print material they don't want to print.
Now, Justice Thomas thinks we can under a common carrier notion.
And it's interesting.
It's a very, it's one of the most interesting First Amendment opinions in recent years, the recent opinion of Justice Thomas.
I think in the end, it would be dangerous to treat newspapers or internet as common carriers.
I think it would have too much of a restriction on free speech, but it's worth considering.
What do you mean, what is a common carrier, like a phone?
Yeah, the phone company, the buses, they can't discriminate.
You can't have a bus that says, we'll take you from New York to Boston, but if you're a Republican, you can't get on my bus.
You can't do that if you hold yourself out to be a common carrier.
Now, the closest they've come is they've applied the common carrier doctrine, not only to telephones, but to telegraphs.
Now, telegraphs are written material.
And so if somebody wants to send a telegraph saying, for example, what President Trump has said in his tweets, under the current law, Twitter can ban him, but the telegraph company can't.
And Justice Thomas said, you know what, that doesn't really make much sense.
We should apply the common carrier notion to very, very large carriers of information today.
It's a very interesting approach, but we have to think hard about it.
I mean, it really is disturbing to me that President Trump, who was indeed the President of the United States, whether you liked him or not, who had got more votes than anybody but Joe Biden in the election, that he now can't, literally can't speak on the major vehicles of communication in this country.
They'll take him off YouTube.
You interview him.
They'll ban you from YouTube.
They won't let him go on Twitter.
They started parlors so other people would have a place to speak.
They knocked Parlor off their servers.
I mean, I'm representing Mike Pillow, and I'm representing them precisely on that ground.
Mike Lindell, who I disagree with on a great many of his claims, has the right to express them.
And now he can't get on any major media because they'll be responsible in defamation for what he says.
He could conceivably get on the social media because of Section 230, but they won't let him on.
So he too has been silenced.
Now, I think he should be allowed to speak.
Let me give you another story, which you won't even believe.
This is so terrible.
The Case Against Censorship00:03:38
So Bobby Kennedy, the son of the former attorney general and a very distinguished environmental lawyer, is a vaccine skeptic.
And I'm a skeptic about everything, but I believe in vaccination.
I've been vaccinated.
So he challenged me to debate him.
And we had a great debate for over an hour about the science, technology, the constitutionality, the history.
Lots of people watched it.
Tens of thousands of people watched it.
And then YouTube took it down.
They didn't want anybody to hear Bobby Kennedy's views.
They were perfectly happy to have him hear my views.
So they gave me a victory by a technical knockout.
I don't want to win by a technical knockout.
I want to win the marketplace of ideas.
I want the people to be persuaded.
And if they're persuaded by his ideas, let them follow his ideas.
That's what the marketplace of ideas means.
That is an amazing story.
The other story that I found enormously disturbing, we're talking to Alan Dershowitz.
His new book is called The Case Against the New Censorship.
It was the story on Amazon when they took down When Harry Became Sally, which was a book, a very responsible, scholarly, compassionate book, but opposed to the ideas of transgender, of the transgender movement.
Amazon sells 90% of the new books in this country.
And it doesn't seem to me too big a stretch to want them to carry books.
Books do these things.
They put forward dangerous ideas.
They put forward exciting ideas, ideas that go against the grain.
To have them take those down, it just seems to me such a violation of trust.
And just to add this, that if they start to take them down, publishers won't publish them.
They will literally erase those ideas from the public sphere.
Don't even need Amazon now.
Look at Simon ⁇ Schuster.
They decided to publish two books by the former vice president Pence.
No, I don't agree with Pence's ideas.
I don't know whether I'm going to read his book or not.
Probably I would because I like to read opposing points of view.
But 300 people at Simon ⁇ Schuster, writers, editors, agents, young people mostly said, no, no, no, not in our company.
We're not publishing his book.
Or Norton decides to stop publishing a biography of Philip Roth because the author was accused of being involved in sexual misconduct.
He denies it.
Nobody has seen the proof of it.
And yet I can't read the Philip Roth biography because Norton won't publish it.
What people seem to forget is that the First Amendment has two aspects.
Number one, the right of the speaker to speak.
So the publisher who published the Philip Roth biography has his right.
But then there's the right of the reader, the listener, the viewer.
We have a First Amendment right to listen.
That's what's so wrong with canceled culture.
When they canceled James Levine at the Metropolitan Opera, I love James Levine.
I love opera.
Don't deny me the right to hear the greatest conductor in modern history just because you don't like what he may have done when he was 25 years old.
You may want to punish him, but don't punish me.
And you're punishing me when you deprive me of the right to hear him.
You deprive me of the right to read Vice President Pence's book or the biography of Philip Roth.
People seem to forget about that aspect of the First Amendment.
You know, I have to ask you this again.
It's sort of what I opened with, but I want to take it from a slightly different point of view.
I mean, ideas, we all know, have consequences, and ideas tend to move toward their reasonable conclusions.
Public Defenders of Free Speech00:02:59
The left is censoring in a way the right hasn't done for a long, long time.
I mean, not since I was a kid was the right really censorious.
Isn't there something?
I mean, the complaint that we conservatives have about the left is that everything the government gives you takes away from your freedom.
Everything the government gives you comes with a price tag.
And the price tag is not just money.
It's also freedom.
It feels to me like these are people who have lost the argument.
When they lost the election, they wanted to get rid of the Electoral College.
When they lost the majority in the Supreme Court, they wanted to stack the Supreme Court.
Now they've lost the argument and they want to get rid of free speech.
And some of them even say this.
I mean, people in the New York Times saying free speech was all right when it was supporting the underdog, but now that it's supporting conservatives, it's no good.
Do you think there is anything inherent in the liberal point of view, the left-wing point of view, let's call it, that just trends toward this kind of oppression?
Well, historically, the extreme left has always opposed free speech and due process, as has the extreme right.
I grew up with McCarthyism.
During McCarthyism, was the champions of free speech.
You've heard of the free speech movement?
The free speech movement wasn't a free speech movement.
It was a movement for free speech by the left, but not the right.
Free speech for me, but not for thee.
Today, conservatives are the victims of suppression.
So suddenly they've become strong supporters of free speech.
I don't believe that necessarily there's anything on the right which inclines them to want more free speech and anything on the left that inclines them not to.
It's always free speech for me, but not for thee.
It's always selfish who genuinely believe in free speech.
I founded a few years ago, the Free Speech Club.
In order to get a membership in the Free Speech Club, you have to publicly defend the right of somebody who so disturbs you, who is so abhorrent.
If you're a Jew, you have to defend the rights of Nazis.
If you're a black, you have to defend dysgenics, that absurd notion.
If you're a woman, you have to defend pornography and sexism.
And you can't get into the club unless you demonstrate that you're willing to really go to the mat the way Voltaire said.
I disagree with what you say, but I will defend to the death your right to say it.
You know, how many members are in that club?
Hold the meeting in a phone booth.
You're a member.
I'm a member.
Harvey Silverglade's a member.
Alan Kors is a member.
Nadine Strawson is a member.
One organization that I can think of today, FIRE, qualifies for a membership.
No longer the ACLU, no longer many, many other organizations.
So I think we've seen it on both sides.
A very fair point that because right people on the right generally are suspicious of government, they should be suspicious of governmental restrictions on free speech, but on the other hand, people on the right are generally more favorable to corporate freedom, corporate power.
Ambivalence On The Right00:00:47
So I think there's a lot of ambivalence about on the right about Facebook now, because Facebook and Twitter and and Youtube are left-wing oriented, it makes it easier for conservatives.
But I wonder how many conservatives really are prepared to say the government, the government should have some power to compel private corporations not to censor things if the shoe were on the other foot.
I don't know what the I'm arguing with them now.
Some of them say that they shouldn't be able to do it now.
I got to stop there.
Alan Dershowitz, the book is called The Case Against the New Censorship.
I really enjoyed talking to you.
I hope you'll come back.
Thanks very much.
You're a great person to have a conversation with.
I wish there were more of these kinds of discussions.