Q&A: How Deep is the Crisis in American Free Speech?

American Experiment President John Hinderaker interviews renowned legal scholar Alan Dershowitz about attacks on First Amendment rights, and what can be done.

Professor Dershowitz, I graduated from Harvard Law School in 1974, and you were already on the faculty. You’ve had a remarkably long run at the law school.

Alan Dershowitz: It was 50 years. I started when I was 25 years old. I had students in my class who were older than I was. I remember my first class I taught there, I had David Gergen, Stuart Eizenstat. I had so many people who had distinguished careers. I’ve had over 10,000 students, and I would say I’m proud of almost all of them. I won’t name the ones I’m not so proud of. But I’ve been very fortunate to be able to have some influence on the legal thinking of generations of students.

There’s a widespread sense that free speech is under attack in America in a way that we haven’t seen for a long time. Talk about that a little, if you would.

I grew up during McCarthyism, so I understand when free speech is in danger. Free speech was very much in danger when I was a college student, and I defended the free-speech rights of people who I fundamentally disagreed with, communists and people of every background. In those days, it was the right that was trying to suppress free speech. Today, it’s the hard left that’s trying to suppress free speech. Just think about a headline in the last hours, where the New Yorker under pressure from hard-left people, cancels a speech by a controversial conservative speaker and the public seems to accept that.

Today, conservative speakers are banned on college campuses. There was an effort to ban me at Berkeley because I am pro-Israel, support the two-state solution and have a moderate view on the Middle East. The ban failed because I threatened to bring a lawsuit. But there are great dangers with limitations of free speech on college campuses today. College students are the future leaders of our country. And so, the kind of diminished respect that we seem to have for the marketplace of ideas among young people has the danger of spreading to leaders of our country in years to come.

It seems to me there are multiple threats to free speech. You’ve mentioned the universities as one place where free speech, especially conservative speech, is very much under attack. What do you see as the solution?

The solution is that students demand the right to hear speakers of every background and every type. Free speech is also being suppressed in the classroom itself. We have teachers who will not allow alternate points of view to be expressed in their classrooms. They use the lectern as a vehicle for propaganda, teaching students not how to think, but what to think. And that’s another subtler danger to free speech. I remember, too, that universities are not just the properties of a current student body. The constituents of universities include alumni, donors, and other people in the community. And I think there ought to be more active efforts to make sure that the university remains an open marketplace of ideas to all points of view.

One thing Center of the American Experiment has exposed over the last year or two is that suppression of free speech and political indoctrination now extends down into high schools and even earlier grades.

I think we’re seeing a diminution of free speech, generally, all through our culture. And I think it’s very, very dangerous, because you’re right. Even in high schools there are efforts to constrain the open marketplace of ideas. I think it has to stop.

Another battleground in the free speech wars is how the left outsources censorship to Silicon Valley. We’ve seen how the tech titans of Silicon Valley, all of whom seem to lean left, minimize conservative voices in a variety of ways. And that’s a tricky issue, because those private companies are not subject to the First Amendment.

It’s a very tricky issue, and the hardest part of it is—I’m speaking for myself now—I don’t know what the truth is. I hear people like Sheryl Sandberg and others testify to Congress that it’s not true. They use objective algorithms, they say, and they don’t put their thumb on the scale against conservative points of view. They acknowledge that most of their employees are on the left, but they claim there’s no impact.

I think the first step is to learn the truth, and we’re not going to learn it from Congress. We’re not going to learn it from corporate officials. I would like to see scholarly work done on this, with the cooperation of these companies, with objective, neutral people looking into what the truth is and in what way the thumb of censorship may be on the scales. As I say, I don’t know the reality. I don’t believe the self-serving arguments of either side at this point; I don’t take them as gospel. Then, once we know the truth, we can decide whether to treat these very, very large corporations as essentially public utilities or whether we should just allow the marketplace to operate and allow conservatives to come up with their own algorithms.

I’m also concerned that free speech has become very adversarial, and the media have become adversarial. As a defense lawyer, I’m used to an adversary system. I present one version of the facts, and prosecutors present another version. Then there’s a fact finder, judge or jury. I never thought that was going to be true of the media. But today, if you want to figure out the truth, you have to watch all sides; you’re going to get totally different versions of the truth from CNN, from Fox, from the New York Times, and from other places. And the editorial page has morphed into the front page. The New York Times, for example, now features news analysis on the front page. Well, news analysis is often a disguise for editorials. So, I do think we’re seeing the introduction of an adversarial system into the media. And many people only want to hear one side.

There are people who watch only Fox, and people who watch only MSNBC. And they accept the truth of Fox and the truth of MSNBC as the ultimate truth. Now, that’s not as bad as the New York Times, because everybody knows Fox has a point of view. Everybody knows MSNBC has a point of view. But the New York Times claims it publishes all the news that’s fit to print. I don’t believe that. I think the New York Times publishes all the news that fits its narrative. And its narrative has been moving further and further to the left. I can think of so many instances where important news just never appeared in the New York Times because it didn’t fit the narrative of its editors and its publishers.

I think most people have figured out that newspapers like the Times and the Washington Post very much have a point of view, and people read those newspapers with that understanding in mind.

I hope so. But I think there are a lot of people who don’t. I know people who just believe everything they read in the New York Times or hear on NPR. And I know people who believe everything they hear on Fox News.

Going back for a moment, Professor, to the tech titans of Silicon Valley. You see YouTube demonetizing Prager University’s videos and Facebook labeling Diamond and Silk, a comedy duo that likes President Trump, as “unsafe.” I find it very hard to see things like that and not believe there is a thumb on the scale.

I’ve been victimized myself. I gave a series of lectures to Prager University, and one of them talked about the establishment of the state of Israel as purely historical. It talked about how Israel was established by the pen, not the sword, that most of its founders were lawyers and that they insisted on full legal documentation, that the land was bought from distant landlords. It was all factual, all documented. And YouTube decided that it was not appropriate for children to watch. I’m not bringing a lawsuit because I have concerns about bringing lawsuits against the media, but Prager is bringing the lawsuit about my video.

Interesting. You mentioned the possibility of bringing competitors to some of these platforms, that maybe conservatives should set up their own Facebook, their own Twitter, whatever. But isn’t there a problem arising from network effects? In other words, I wonder whether these platforms don’t tend to be natural monopolies. You know, we used to have Facebook and Myspace. Well, now we just have Facebook. And the value of the platform depends in considerable part on the fact that everybody’s on it.

It’s interesting because you now get conservatives who are generally completely in favor of free market competition complaining about the free market effects of Facebook establishing a monopoly. And it’s the liberals who for years have said we need some government regulation that are now saying hands off. This is a very difficult problem. I think a lot more thought has to go into it.

You know, taxi cabs are owned by private companies, but they can’t refuse to serve people, and they can’t discriminate against people in certain neighborhoods. Sometimes private companies serving the public have obligations beyond simply what the market provides. It’s complicated. Of course, the difference is that taxis need medallions. They need some government approval, whereas Facebook can operate with no government approval at all. So, it’s very complicated. And for a civil libertarian like me who believes strongly in free speech and in government staying out of regulating the media, it presents a particularly difficult dilemma.

Professor Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He has been called one of America’s “most distinguished defenders of individual rights,” and “the best-known criminal lawyer in the world.” A graduate of Brooklyn College and Yale Law School, he joined the Harvard Law School faculty at age 25, after clerking for Judge David Bazelon and Justice Arthur Goldberg.