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New Book Highlights Thomas Jefferson's Free Speech Concerns

In the aftermath of the September 11, 2001 terrorist attacks on the United States, Americans have been engaged in an intense debate over how to balance our government's need to protect us from terrorist violence against the constitutionally guaranteed right to free speech - including hateful speech - that they also enjoy.

A newly discovered letter written two centuries ago by founding father Thomas Jefferson shows that this debate is as old as the Republic itself. Jefferson's letter and its relevance are the subjects of a new book by Harvard University law professor Alan Dershowitz.

For most of his professional life, Alan Dershowitz has been interested in the First Amendment to the U.S. Constitution, and has written several books over nearly 50 years exploring the foundations of free speech set forth in that legislation.

But the story of Dershowitz's new book Finding Jefferson: A Lost Letter, A Remarkable Discovery, and the First Amendment in an Age of Terrorism, really began only in 2006.

While browsing in a favorite rare books shop in New York City, he was shown a time-worn, hand-written letter dated July 3, 1801, the night before the 25th anniversary of the Declaration of Independence. Jefferson had recently been installed as President after a very contentious election.

"And he sits down and writes a letter all about the very issues I'd been thinking about all my life!" crows Dershowitz. "If I were more of a person who believed in fate I would say, 'My God, he wrote it to me!'" That discovery ultimately led to he new book. "I just wanted everybody in the world to read this letter."

President Jefferson had written that single-page letter in response to a published sermon by Stanley Griswold, a popular preacher of the day. Griswold had said that if a clergyman made a sermon that inspired followers to commit crimes, the minister should be punished. "Jefferson said 'no,'" paraphrases Dershowitz, "and that people have a right to express these views. What we should do is wait until the first crime is committed — the first physical act — and punish that.'"

In his missive, Jefferson wrote that "we have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors" and that "these are safer correctives than the conscience of a judge."

In other words, if ideas and opinions are allowed to compete freely in the public sphere, everyday people can judge for themselves what to believe and how to act. "That was a very radical view at the time," says Dershowitz, who claims that Jefferson was a true democrat. "He thought if you allowed any kind of censorship it would be the conscience of elite judges that would decide what we could say and when we could say it, rather than individuals themselves making that decision."

Dershowitz sometimes challenges the founder's arguments in Finding Jefferson. For example, he notes that the "free marketplace of ideas" that Jefferson praises doesn't always operate for the best. As examples, he cites the free elections in Nazi Germany in 1932 that put Adolph Hitler in power.

Jefferson was no anarchist. While he believed people should be allowed to express any opinion (even an opinion that a crime should be committed), "the state stands ready," in his words, "to punish the first criminal act produced by the false reasoning." On that point Dershowitz sounds a cautious note.

"What if we can't wait for the crime to be committed? What if the crime is a mass act of terrorism, 9/11 or worse, or chemical, biological or nuclear terrorism? Do we permit a religious leader to inspire or incite his followers to commit acts of terrorism that we may not be able to tolerate? Hard questions.".

These are difficult questions Dershowitz is not certain how to answer definitively himself. He believes Jefferson would have been more willing to acknowledge the dangers we face in the current era, but that the founder would still say that, on balance, "it's better to have open, free dialogue than having the government deciding what you can hear or can't hear."

Dershowitz himself praises Denmark's leaders who, in 2005, resisted calls for censorship of the press from Muslims who were offended by newspaper cartoons depicting the Muslim prophet, Mohammed, in what they deemed a disrespectful light. "Once you start creating exceptions, everybody demands an exception in their own interest," he says. "Suddenly, there is nothing left."

Alan Dershowitz's new book is a welcome contribution to the ongoing debate about free speech in an age of terrorism. It's a useful reminder, too, that Thomas Jefferson's thoughts on the subject remain as relevant and provocative today as when he first expressed them, over two centuries ago.