"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 Instead, the longtime admirer of Thomas Jefferson and defender of civil liberties found something even better: an unpublished letter Jefferson wrote in 1801 concerning freedom of speech.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. …