The Franklin Case (Cont'd)
To the Editor:
I was truly surprised, and disappointed, to see Herbert L. Packer become so personal in his response to my letter [Letters from Readers, August] about his article, “Academic Freedom and the Franklin Case” [April]. The case obviously raises important and controversial issues about which reasonable men can and do disagree. But instead of responding to my arguments on their merits, Mr. Packer seeks to discredit me by implying that I became involved in the Franklin case not because of my longstanding commitment to civil liberties and academic freedom, but rather because I had a political or personal interest in Franklin’s “cause.” Mr. Packer does not come right out and say this because he knows it is demonstrably untrue, but he does imply it by his invocation of the following “facts”: 1) “he [Dershowitz] had spent a couple of hours with Franklin”; 2) “only he [Dershowitz] and Franklin know what went on during that conference”; 3) “the two men [Joel Klein, who agreed to represent Franklin, and Dershowitz] are, I understand, close friends”; 4) “he [Dershowitz] had, before the presentation of the facts in the hearing, already committed himself to Franklin’s cause. . . .”
The only way I know of to respond to this kind of argument-by-insinuation is to flush each of the intended inferences out into the open where they can be candidly confronted and answered.
As I made clear in my original letter, Franklin had asked me to serve as his attorney; the purpose of our meeting was to discuss that and the possibility of securing other counsel. Mr. Packer knows that I am professionally bound to keep the specific content of our discussion confidential, since a conference between a lawyer and one who is seeking to retain him professionally is as privileged as a conference between a lawyer and one who is already his client. Mr. Packer’s snide comment that “[o]nly he and Franklin know what went on during that conference” smacks of primitive McCarthyism. Knowing that I am not at liberty to disclose what went on, he implies that it was something that I would be embarrassed to have revealed. I can assure the readers that this is not so. Indeed, I would be pleased to have the contents of our meeting disclosed by Franklin (who, under the Canons of Ethics, is the only person authorized to make such disclosure) .
Mr. Packer’s invocation of my friendship with Joel Klein contains a double implication: 1) that Klein is “committed” to Franklin’s “cause,” since he agreed to represent him, and 2) that I must also be committed, since Klein and I are, as Mr. Packer understands it, “close friends.” Both implications are unfounded. Klein agreed to assist Franklin professionally only after it became clear that no one else in the Stanford community would do so. He is not, as I understand it, committed to or sympathetic with Franklin’s political views. Moreover, Klein and I disagree about a great many political and legal issues. Friendship—at least the kind I have—does not presuppose uniformity of opinions on all issues. Indeed, the legal position advocated by Klein, as counsel for Franklin, differed in fundamental respects from the legal position that I advocated as counsel for the ACLU. For example, Klein argued that his client was entitled to prevent Henry Cabot Lodge from speaking if Lodge was indeed a “war criminal.” The ACLU brief, on the other hand, “vigorously [disputed the claim] that there is a ‘right’ to silence a speaker who is accused of being a ‘war criminal.’” Accordingly, it took the position that if Franklin “intentionally engaged in concerted activity designed to silence Ambassador Lodge,” then “discipline would be appropriate.” (The Board found in favor of Franklin on the “Lodge incident.”) There were a number of other important respects in which the ACLU brief departed from Franklin’s positions. Needless to say, neither Klein nor Franklin was pleased with the ACLU’s positions on these issues.
Mr. Packer’s statement that I was “already committed . . . to Franklin’s cause” even before the facts were presented is apparently intended to convey the impression that my commitment was of a political or personal nature, or—at the very least—that I am the kind of knee-jerk liberal who automatically sides with radicals regardless of the facts. There are two things wrong with this argument. First, the factual allegation is false: I became interested in the merits of the case only after I heard the tapes and the accounts of the speeches that formed the basis of the charges against Franklin. Indeed, I did not communicate my concerns to the ACLU until well after the close of the university’s factual case. Second—and far more important—I am not and have never been “committed” to Franklin’s “cause.” What I said in my original letter obviously bears repetition in light of Mr. Packer’s continuing innuendos:
Bruce Franklin’s political views are despicable to me. I firmly believe that he is a dangerous person. I sincerely hope that he fails in his goals, and I will do everything I can—consistent with the Constitution—to see that his ideas are rejected in the free market-place of ideas.
Mr. Packer also seeks to convey the impression that I acted improperly in filing an amicus brief on behalf of the ACLU since I did not “represent disinterested opinion.” Mr. Packer’s discussion of this issue is totally misleading, the more so since it appears in a publication whose readership consists primarily of non-lawyers who cannot be expected to recognize the distortion. He suggests—though again he does not say it directly—that it is improper for an attorney to submit a brief amicus curiae unless he “represent[s] a disinterested opinion.” It is easy to understand how a layman might be misled by the words amicus curiae (literally, “friend of the court”) to believe that disinterestedness or neutrality is required of one who files such a brief. But as any experienced attorney or law teacher well knows, there is no such requirement, either in law or in practice. On the contrary, virtually all briefs amicus curiae are filed by persons or organizations with concrete interests in the outcome of the litigation. These interests are sometimes financial, sometimes political, and sometimes of a civil-rights nature. As one writer has summarized the current situation: “Amicus curiae briefs are expected to represent a specific rather than a diffuse interest.” Indeed, the rules of the United States Supreme Court require that an applicant to file a brief amicus curiae state an “interest” in the case. The ACLU explicitly stated its interest in the first paragraph of its brief as follows:
The American Civil Liberties Union is a nationwide organization devoted to the preservation of civil liberties. . . . It is filing this brief to express its views on the civil-liberties issues surrounding the disciplinary proceeding against Professor Bruce Franklin of Stanford University.
That quotation from the ACLU brief should also demonstrate the falsity of Mr. Packer’s statement that “The chairman of the Advisory Board asked [me] to disclose [my] interest, if [I] had one,” and that I professed to be outraged by this request. The chairman never requested me to disclose my interest, since it was well known to all from the beginning that I was interested in the civil-liberties and academic-freedom issues. Nor would I ever express outrage at such a request: I would proudly proclaim my interest, since I regard it as a virtue to be interested in—rather than neutral about—such issues. What the chairman did ask me to disclose was the nature of my consultation with either of the parties. This I could not do, because, in the words of a statement issued on behalf of the ACLU at that time, “To comply with such a request would significantly hamper [the ACLU's] important work in the area of civil liberties and would compromise the constitutional privileges of confidentiality.” (Ultimately, the Board dropped its unprecedented requirement and the ACLU brief was filed over my name plus that of the Legal Director of the ACLU and, significantly, two of Mr. Packer’s colleagues on the Stanford Law faculty.)
There was, of course, nothing improper about counsel for amicus curiae meeting with one of the parties. This is done all the time, by “interested” organizations that file amicus curiae briefs (such as the ACLU and the NAACP).
Mr. Packer strikes a particularly low blow in suggesting that there was something improper in Joel Klein’s assisting Franklin since “the Harvard Law School . . . paid Mr. Klein to work for Mr. Dershowitz during his year at the Center.” (Why else would Mr. Packer mention the source of Klein’s funding except to imply that Harvard funds were being improperly diverted to the Franklin defense?) The facts are as follows: Mr. Klein was paid to assist me at the Center on the basis of a forty-hour-work week. Neither Harvard nor I imagined that we were purchasing Klein’s entire day. During the course of the year he did many things in his spare time, including work on the McGovern campaign. What he did beyond the forty or so hours he worked on our academic project was entirely his business. When the Franklin case began, Klein did not ask me whether he could work on it, he simply informed me—that he would be working on it during his spare time. He assured me that any time he spent during the day would be made up by evening work. In fact, Klein’s work on the academic project averaged well over forty hours a week, even during the height of the Franklin case (as anyone at the Center can attest) . Klein was scrupulous to avoid using Harvard or Center funds on the Franklin case; he paid—out of his own pocket—for Xeroxing, postage, and other costs incurred in connection with the case.
As Mr. Packer well knows, hundreds of law professors—including many of his colleagues as well as mine—represent clients in their spare time, both with and without fees. Is Mr. Packer suggesting that this widely accepted practice represents an improper diversion of university funds? Or is it improper only when the cause is one with which Mr. Packer disagrees? Mr. Packer’s not-so-veiled suggestion of impropriety on my part is extremely unfair; his gratuitous dragging in of Joel Klein, a young man who is not yet a member of the bar, is inexcusable. Nor can Mr. Packer claim ignorance on this matter. In a letter dated May 30, 1972, I informed him of the facts relating to Klein’s funding and his involvement in the Franklin case. Moreover, at least three of Mr. Packer’s colleagues advised him that there was no basis for any suggestion of impropriety and urged him not to publish it. I simply do not understand why Mr. Packer insisted on insinuating something he knew to be untrue.
One final word: I am proud of my involvement in the Franklin case. It was, I believe, important for an outside organization like the ACLU—and an outside professor—to bring another, less parochial, perspective to an issue with the nationwide ramifications of the Franklin dismissal. Mr. Packer’s forced efforts to contrive accusations against Mr. Klein and myself for our participation in the case invites comparison to the unfounded accusations leveled by some in the South against Northern civil-rights lawyers who “intruded” themselves into the “local” problems of Mississippi and Alabama during the early 1960′s. I am genuinely sorry that the issue has become so personal. I did not expect that it would. But innuendos and insinuations of the kind made by Herbert Packer cannot go unchallenged, lest we return to an age that I had assumed was long discredited among thoughtful people.
Alan M. Dershowitz
Harvard Law School
Herbert L. Packer writes:
I never professed to question Mr. Dershowitz’s longstanding devotion to civil liberties. His letter reveals that his devotion occasionally leads him into largely irrelevant outbursts that one hopes will cease. As for the case, Mr. Dershowitz has added nothing new to the Franklin affair in this lengthy emotional and self-serving exercise in prolixity. I refer the reader to the original article on the Franklin case (published in April) and to the exchange of letters (published in August). I hope that this is the last of the Franklin case.