Dershowitz shouts reason (not fire!)

Alan Dershowitz is a force of nature in the legal profession. As a lawyer he has represented some of the most unpopular defendants in recent American history, believing that every individual is entitled to a fair day in court. His clients have included Claus von Bulow, O.J. Simpson, Michael Milken and Mike Tyson.

As a journalist, lecturer, and radio/television commentator, Dershowitz has been a leader in the debate over civil liberties. As the author of best-selling books (like “Chutzpah!” and, more recently, “The Case for Israel”) he shares the lessons of a lifetime in law. He takes his astute legal analysis even further in analysis even further with 40 years of pioneering rights battles in “Shouting Fire: Civil Liberties in a Turbulent Age.”

The book’s title comes from Justice Oliver Wendell Holmes’ classic example of unprotected speech: one cannot falsely shout “Fire!” in a crowded theater. Typically, Dershowitz takes the Holmes claim and deconstructs its mythic status. This is consistent with Dershowitz’s interest in the origin and evolution of rights. At issue in the “fire” case was a leaflet urging World War I draftees to resist induction.

The publisher claimed free speech, but Holmes opined that circumstances always determined limits to protected speech, and that the most stringent protection would not justify someone to cause a panic by falsely shouting “fire!” Dershowitz shows the analogy is inapt because it is directed not to mind and conscience, but to immediate action. There is no time for thoughtful reflection. Dershowitz continues: “It is a ‘clang’ sound, the equivalent of setting off a nonverbal alarm.” Of course, setting off an alarm bell is not free speech.

Unlike many other scholars, the Harvard law professor does not attribute the source of human rights and civil liberties to God or natural law. Instead, he creates a new and novel explanation and justification for the development of human rights: they emerge from wrongs, from our intensive experience with human injustice. We remedy wrongs by creating rights.

Dershowitz builds his theory of justice and rights on the long shadows of human unfairness and mistreatment. “Rights are the dynamic product of democratic processes, informed by the gradual changes of history and experience.” In Dershowitz’s view, law, morality and truth “are ongoing processes for resolving conflicts in a society comprising people with differing histories, experiences, perceptions, value hierarchies and world views.”

Thus does Dershowitz underscore the situational complexity required to talk about rights, which are often at someone else’s expense and frequently abridge one another (my right to drive fast and your right to not be endangered by it). Our rights are contextual: mine start where yours end, and vice versa. But in real life they overlap or even oppose one another. It is not difficult to see how many rights, legitimately derived from processes of conflict-negotiation, are in fact themselves conflicting.

In a long list, Dershowitz inventories an “Addendum of Rights and Counter-Rights.” Some of the more obvious include the right to life of a fetus versus the counter-right to choose abortion, or the right to life of a dying person versus the counter-right of assisted suicide.

Other contemporary rights conflicts include the right to anonymity versus the right to be protected from identify theft and the right to not to be DNA tested versus the right to derive evidence of innocence. The wisdom of Solomon will be needed to resolve these conflicts. But as Dershowitz points out, meeting such challenges is incumbent upon a democratic society.

Dershowitz plows into this formidable topic with relish. He addresses a gallery of complex and controversial topics, including the right not to be censored by government, the right to believe and disbelieve, the death penalty, the right to a zealous and ethical lawyer and the right to an honest judge. The volume concludes on the contemporary question raised by homeland security: Can rights be suspended in times of national emergency?

Finally, mention must be made not only of this book’s significant content, but also of its impeccable form. Well-organized and coherent, Dershowitz argues his case with eloquence, reason and compassion. One may not agree with every sentiment, but the lucidity and compelling power of the author’s prose is indisputable and makes “Shouting Fire” an informative, stimulating and pleasurable read.

“Shouting Fire: Civil Liberties in a Turbulent Age,” by Alan M. Dershowitz (512 pages, Little Brown & Co., $26.95.)