The Chilmark Free Public Library board of trustees earlier this year unanimously voted to invite Chilmark summer resident, defense attorney, and retired Harvard law professor Alan Dershowitz to speak at the library about his new book. Last year, the library’s trustees denied his request, and Dershowitz claimed they violated his First Amendment right of free speech. He even threatened to sue.
Let’s briefly examine his claim, even though it appears that the issue has now been resolved, if only to a certain extent.
First, a bit of history. The original 13 states ratified the Constitution in 1788, and the First Federal Congress convened a year later. Many state ratifying conventions demanded that this first Congress add a Bill of Rights, because the original document failed to include one. The first 10 amendments were added in 1791, just two years later.
Now familiar to most Americans, the Bill of Rights includes guarantees of free speech and a free press; freedom of religion; the prohibition of searches and seizures without search warrants and a ban on cruel and unusual punishments; and more. None of these rights and liberties are absolute. A hospital, for example, may create a quiet zone in certain parts of the building because of patient needs.
Second, some constitutional developments. Some 85 years ago, the court adopted yet another judge-made principle, namely the “public forum” doctrine. This recognized the importance of the discussion of public affairs in public streets, parks, and facilities. Certainly, the Chilmark library is such a facility.
But there is more: Over the past 75 years or so, the Supreme Court developed a hierarchy of the rights and freedoms guaranteed in the Bill of Rights. The court regards some, but not all of them, as fundamental to the operation of a free society and a democratic order. This hierarchy is also entirely judge-made, because the framers of the Constitution never considered them a hierarchy.
The First Amendment’s guarantee of free speech is a fundamental right: If candidates for public office were unable to express their views, voters would be ignorant of their political and social policies, and unable to cast an educated vote.
For this reason, the court has made it awfully difficult, if not impossible, to forbid someone from exercising a right to speak. The court places the burden of proof on the institution, in this case the Chilmark library, to show why it had “a compelling reason” to disallow certain speech. This is a high bar to reach. Could such speech lead to violence, injury, or death? Might there be a riot, or perhaps property damage? Can this be proved?
Library director Ebba Hierta told The MV Times, “The reason I grew reluctant to extend invitations to Alan [Dershowitz] is this: The circus that surrounds this man who so ably courts controversy got in the way of the library’s important mission — serving the residents and visitors of Chilmark. When 200-plus people crammed into the library, with dozens more milling about harassing staff because they couldn’t hear the lecture; when local businesses lost money because our patrons filled their parking lots; when patrons not interested in hearing Alan could not take care of their library business; that’s when I realized the eminent Harvard professor emeritus had outgrown our little library.”
The question last year was whether the library’s rationale was sufficiently compelling to deny someone the right to speak in what is effectively a public forum. But that was last year, because now the two sides have agreed that Dershowitz may speak on June 20. But with conditions.
Unproblematic is the requirement that his address take place when the library is closed. More challenging is the limitation on attendance numbers, set by the trustees at 25 people. He has objected to this limit, and may well argue that the library’s meeting room has often held more than that number.
According to The MV Times, Dershowitz said, “If they have a special rule for me, I’m not happy with that,” because it does not apply to anyone else speaking at the library. The Times noted that “Dershowitz himself was first to suggest the attendance limit last year, in his letter to library director Ebba Hierta.”
The fact is that the issue concerning the First Amendment appears to be resolved in part. If the trustees can show that their reasons for limiting attendance are as compelling as those cited by the library director, then they can set the number at 25. On the other hand, if those reasons are insufficiently compelling, the number of attendees should be limited only to the number of people the fire marshal allows for the size of the room.
Jack Fruchtman, who lives in Aquinnah, is the author of “American Constitutional History,” now in its second edition.