Alan Dershowitz, Joseph Mengele and Me:
The Limits of Libertarian Ideology
by Nikki Craft
Copyright © Nikki Craft, 1987. All Rights Reserved.
In the last decade I have grown increasingly apprehensive about the practices of the American Civil Liberties Union (ACLU)--more so than many who simply see it as an ally to help prevent governmental censorship of individual choice.
The ACLU has come to occupy a political space that many of us revere and even desperately need to believe is being properly defended. However, in plain fact, the ACLU often one-sidedly rushes to defend corporate propaganda without displaying an equal concern for balancing it with noncorporate communication.
Indeed, when it comes to "speech" the ACLU is 'ideologically stupid' in accepting the legal fiction that a corporation is just another 'individual' in terms of civil rights and responsibilities. Money talks in its "market place of ideas" and the ACLU echoes very loudly the interests especially of the sex capitalists. Corporations have enormous power in the 1980s and the ACLU too often gives them uncritical license.
Ideally, the ACLU's responsibility for expression should feature a concern that all ideas are protected in the "market place." However, an examination of the ACLU's defense of pornographers and the tobacco industry illuminates its actual priorities. Many ideas and voices are silenced without the ACLU speaking out. The reality is that of the five publications accepting the most advertising dollars from the tobacco industry, not one has run an article or editorial expressing criticism of smoking in the last five years. Where is the ACLU's concern for the anti-smoking viewpoint?
Feminists Ask: Who Pleads for Porn?
Feminists have a difficult time being heard in a corporate culture reflecting male interests. For instance, Ms. magazine has never been on sale in convenience stores everywhere, as were the top three porn magazines. American publishers have refused to publish Andrea Dworkin's (and other feminists) books because they disagreed with the content. B. Dalton Booksellers hardly allocates a women's section, and feminist literature in general is difficult to obtain because of distribution not because of interest. Yet, we never hear of the ACLU seeking to protect avenues of feminist expression.
On the contrary: civil libertarians urge feminists to remain silent so the First Amendment can continue to benefit pornography's free expression.
The Limit Is Tested
For 15 years, I have been both a frequent defender of free speech and a public critic of pornography. I have deplored the media treatment of women, especially the exploitation of violence. Refusal to suppress my disgust for pornographers has roused the ire of several ACLU figures. One of them is Harvard law professor Alan Dershowitz.
Alan Dershowitz has emerged as a tireless apologist for the pornography industry and Bob Guccione in particular. He speaks from the platform of a nationally syndicated column and he is an opinion writer for Penthouse magazine. Guccione, editor of Penthouse, has a remarkable fascination for violence and exudes a beady-eyed fascination for the coercion of women. Even though Dershowitz has stated that he realizes "violent pornography presents a problem," he remains employed by Penthouse.
Dershowitz, an active nudist for the last several decades who has spent much time on Martha's Vineyard beach, as will be seen, has played a major role on the legal side of the free beaches movement as well as in defending corporate misogyny. To define the situation at large I need to delve more deeply into the kind of libertarian ideology he represents.
When he discusses certain subjects, such as prostitution, we glimpse the Achilles heel beneath the Dershowitz robes. His class and sex biases blind him to issues of equality and civil liberties to such an extent that it's difficult to believe this man ever studied logic, much less ethics. Do I exaggerate? Let's see.
In matters of prostitution he clearly departs from a First Amendment stand. He advocates censorship of the media, political organizations, and vocal individuals to prevent making public the identities of the prostitute's johns. He wants only to protect their privacy. To Penthouse readers he writes, "It has become part of the rhetoric of certain feminists that johns must be arrested in the name of equality and feminism." Dershowitz warns that "the policy, in the name of a false equality, engenders the most thoughtless inequality." For, he goes on, "there really is an enormous difference in effect between the arrest of a professional prostitute and the arrest of an otherwise law-abiding citizen who occasionally seeks to taste the forbidden fruit of sex for hire. For the customer, the public arrest can be a catastophic event. It can ruin a marriage, destroy a reputation, scar his children, terminate a career. It can undo years of positive achievements--even if he's eventually exonerated.
"For the prostitute, an occasional arrest is an expected occupational hazard. The quick arraignment, bail and fine are regarded as a cost of doing business. She is back on the streets hustling her next john within hours. Certainly there is little stigma or embarassment in being arrested; the streetwalker publicly advertises what she's doing every time she puts on her 'uniform' and takes to the sidewalks." Dershowitz seems unconcerned about false arrests for prostitution or sufferings of prostitutes. He doesn't recognize that going to jail often may begin a life of real crime for these women, and that most prostitutes must rely on pimps to quickly post bail, if it is posted. Someone needs to tell this law professor that when a prostitute is convicted she can serve months and in cases years. He disregards the civil rights of whores.
I've been in many jails. I've passed time with prostitutes who were often just hours before on their knees from giving cops, politicians, and men like Alan Dershowitz blow jobs--and believe me, if anyone cared to listen to what they had to say or, better yet, if some publication paid them thousands of dollars as they do to Dershowitz to write nationally syndicated columns, a very different reality would emerge in our culture from the one our ACLU champion portrays. And there lies much of the problem. Alan Dershowitz, Bob Guccione, and the pornographers have too much "voice." They hold disproportionate power. They mold the reality. And most people--especially women, and prostitues in particular--have no real avenue of expression at all.
Once again: Who is attorney Dershowitz? In his book The Best Defense, he portrays himself as a commited advocate for very rich "underdogs." He has defended Milwaukee's reputed mob boss Frankie Balistrieri, notorious and bellicose Jewish Defense League founder Meir Kahane, and Bernard Bergman, a New York nursing home magnate infamous for victimizing the elderly with elaborate scams to rip off government money for services never rendered. Claus von Bulow, accused of a botched murder of his wife, got off because of Dershowitz's virtuoso legal technicalities. He was an outspoken advocate for a convicted murderer who showed no remorse for pouring gasoline over a woman while she was conscious and setting her on fire; he prated of his obstructionist due process issues to the media even after the Supreme Court ruled that the error on the search warrant was so minor it shouldn't affect the final verdict in the case.
In his opinion column, Dershowitz argues to uphold laws that deny a woman the right to file rape charges against abusive husbands. He has also criticized students for protesting against Covington & Burling (defense attorneys for the tobacco industry), one of the nation's largest law firms, successfully persuading them to disassociate from the racist regime in South Africa. In bed with the right wing himself, Dershowitz never tires of speaking against Andrea Dworkin, Catherine MacKinnon, and the entire anti-pornography movement, as being in the company of 'strange bed fellows.'
On his monthly page for Penthouse Dershowitz writes, "I would, at least in principle, represent anyone. But I must admit that when the Nazi doctor Joseph Mengele was alive, I had a recurring nightmare in which he would call me and ask me to represent him; I would wake up in a cold sweat after telling him to come to my office, unsure whether I would turn him in, represent him, or kill him."
My experience with the peculiar civil libertarian ideology of Dershowitz began in 1984 when I was first arrested on the Cape Cod National Seashore. Lee Baxandall and I contacted him by phone, explained the circumstances of the case, and after several conversations with both of us, he agreed to handle the appeal. Dershowitz had been a visitor to the Truro nude beach for years prior to becoming involved in a legal effort in U.S. District Court during 1974-76 at Boston, seeking to overturn a federal regulation banning public nudity at the Seashore. Because of this involvement as well as his legal expertise, Dershowitz seemed like the logical choice of legal counsel available to us.
However, I found that in The Best Defense he described nude beach rights as "similar to the rights of adults to view movies behind the closed doors of a theater." Of course he was discussing privacy issues. But I believe the remark illuminates more than a point of law. Consider: during our second phone conversation of 1984 the subject of pornography surfaced. He asked me, "How can any person working for the right of people to be seen nude on the beaches reasonably decide that people who want to be seen in pornography cannot be seen?" I tried to explain to him that I was not arguing for the right of women to be seen on beaches, but to be on beaches topless. This refers to personal activity and expression as well as to a state of existence, and has no inherent need of a viewer.
Does there exist, for Dershowitz, an overpowering thrill of seeing the female nude, such as to prevent him from seeing the issue from the woman's viewpoint? I haven't witnessed Dershowitz himself on the Truro nude beach. But I've been told that his eager response to nekkid women could be compared with that of a little boy let loose in a candy store! Be that as it may. I was beginning to sense because of his immaturity with regards to nudity and women that we would have some disagreements.
The next summer, I learned that Dershowitz had lied in a phone conversation with Marjorie Howard, a Boston Herald reporter, when he denied that he had ever agreed to take our appeal. He added that he could "never defend Craft on any charge because of her position against pornography."
Publicly and often, Dershowitz proclaims he "would never turn down a client accused of a serious crime on the basis of his or her political beliefs." He regards himself as an advocate "whose primary responsibility is to represent unpopular clients against the power of governments and other large institutions." He couldn't bring himself to defend l'il shirt-free ole me, however, on a federal discrimination point of law with First Amendment import.
Me and Joseph Mengele?
I have had to come to see Dershowitz as both more and less than a libertarian advocate. He uses his voice, amplified by an easy access to mass media, to speak for the people he represents, and a quick overview of the peculiarly limited range of his clients will suggest that they may express his own, perhaps otherwise unavowable, priorities and values.
Dare I suggest it? Perhaps if I had killed a woman instead of opposing pornography, Alan Dershowitz would be my defense attorney today. That is, if I would have him.