Garrett Epps

Albany Law Review, Summer, 2008

So that would be my response to--

MR. DERSHOWITZ: And I think it's very situational. I think, as Scotty Reston did famously say, that he withheld reporting the troop movements leading up to Bay of Pigs, and he would never do it again. He wished he hadn't. He knew it was the biggest mistake of his career, and he had learned it in a confidential way, but that's the way that journalists do learn things. I think if you had this discussion, however, in 1944, in 1945, when we were fighting the good war--the authorized war; the war that was declared by Congress; the last time we had such an experience of lawful war--I think the attitude to your--what people would say is you have a right; that you may be right. Reasonable people can disagree. If reasonable people agree to pass narrow legislation to prevent the disclosure of troop movements during a war, even if you learn it by the usual reporting methods, that would be sustainable under the First Amendment of the Constitution. That is, you might be right, but even if you're right, if the--if you go back in history, it becomes, of course, a much more believable story. But plainly, not Madison or Hamilton or anybody at that time would imagine that the First Amendment covered that kind of thing. And they had a very constraining view of what freedom of speech was in those days. And I don't know if you--you know, I'm sure you know this, but just a year or two years before Oliver Wendell Holmes wrote his famous Shouting Fire, he wrote a decision in a Washington State case, which is absolutely shocking. Washington--the City of Washington--had an area where people would go skinny dipping, and a small newspaper in Washington wrote an opinion piece saying the police should not arrest these people for skinny dipping; skinny dipping is part of the cultural tradition in this part of Washington State. But nudity in the parks was against the law. This case came up to the United States Supreme Court, and Oliver Wendell Holmes wrote an opinion saying there was nothing unconstitutional under the First Amendment. So Holmes gets on the Court, and nothing unconstitutional under the First Amendment about prohibiting speech that advocates crime, even crime like nude swimming, he said. An editorial on that--forbidding an editorial like that from being written is no different than requiring vaccination from communicable disease. We had no sensitivity toward the First Amendment at all until--

MR. FINKELMAN: Well, I--

MR. DERSHOWITZ:--Brandeis gets on board, essentially; until Holmes begins to--telling him and persuading him that he's wrong, and then it gets turned around, and it gets turned around. You're right, it was a two-step process.

MR. FINKELMAN: I think--you know, I don't want to go into Holmes too much. I mean, we're here to talk about Dershowitz, not Holmes. And I know not all Harvard Law professors believe that, but it does strike me that Holmes's reputation as a civil libertarian in a great variety of ways, and what, you know, his ability to use language was brilliant. And that--and to paint metaphors and short little pithy sentences, and that, I think, enhances his reputation, probably does him justice.