The Dershowitz flap at the Chilmark Free Public Library


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.


  1. As I commented earlier, if there is a God, no one will show up. Hopefully that will send a message to Dershowitz.

    • America is sick of intolerant people, and it’s not going to tolerate them anymore. Tolerance, in this sense, is relatively new, not something even thought desirable through most of human history. After all, why tolerate error? This is precisely what tolerance requires of us. Genuine tolerance, as opposed to its pale counterfeits, requires us to allow those who espouse or live out ideas we think wrong, perhaps even harmful, not only to do so but also to try to persuade others to do the same. A number of important notions imbedded in this concept are often ignored when charges of intolerance are thrown around.
      First, one is not tolerant of something unless one objects to it. I do not tolerate something I either accept or am indifferent to, because it requires nothing of me. Most social liberals, for instance, cannot rightfully be said to be tolerant regarding same sex marriage since they have no objection to it. You do not have to tolerate that which you accept or affirm. If you want to know whether a liberal is tolerant, ask what he or she thinks of Trump or Pat Robertson or Candace Owen. If tolerance requires an initial objection, then conservatives, ironically, may be much more tolerant than liberals, because there are so many more things to which they object. The least tolerant person is the person who accepts everything, because such a person is not required to overcome any internal objections.

  2. I am disappointed that you did not address in more detail the issue of whether a speaker is constitutionally entitled by the government to a platform upon which to speak. The Chilmark Library is a public place, but the summer speakers series is not a public street corner where one and all may speak if they so desire. Is Alan guaranteed a spot each year because he has spoken there occasionally in the past. Is there any indication, other than his own claims, that he was denied a spot on the program because of his viewpoints? It would be helpful if you could expand your analysis of the “public forum doctrine” to explain this aspect of the problem, which really is the crux of the matter here. Thank you.

    • Vicki, I also looked back to August 18, 2022, to the Times article about a possible compromise between the library and Dershowitz.

      Under the article were 86 comments, including yours and mine. At the time I wrote:
      “Jackie Mendez August 22, 2022 At 5:44 pm
      Vicki, I saw your other comment where you seem to take a peculiar glee in ridiculing a human being you obviously dislike.
      Explicitly, which of Alan’s constitutional arguments on Trump’s behalf have been a stretch, silly, or outright wrong? Please be specific about which arguments you refer to and why you, a self-described teacher of constitutional law, think they are wrong. Maybe he is wrong, I can’t say, but apparently you can’t either, or you would have. Without an objection to a specific, single one of his Trump defenses, it’s merely a matter of you dismissing a person because you don’t like him for what he believes. That’s not very tolerant now, is it? Was it about a President or Vice-President not being held to the same rules and standards on declassifying documents as everyone else? Making a blanket, generalized statement of insult upon insult, as you have done, has little meaning and adds nothing to the pile-on but more piling on. Why resort to this sort of venting? How does one “run into” another person in public, say at the beach, the theater, or a movie, and then somehow try having a discussion that turns into screaming? Did you accost him while he was out with his family, or perhaps picking up veggies at the farmers’ market? I know if I “ran into” someone with the attitude you’re displaying here and then demanding I somehow defend my views right there and then, I’d probably yell and curse at you. Why would he call you an antisemite? Imagine if you’d been able to ask any sort of question you’d like, be it edgy or rude or anything at all, at a scheduled event where this was encouraged, like at a library author’s talk event? You make an excellent point about why an Allen Dershowitz talk is something the community wants. Plus, a scheduled event would prevent these discourteous public run-ins that you seem to have incited, if I am to believe you at all, which I don’t, to be honest. I’ve been to a couple of AD library talks and trust me, someone (or more) always asks an “edgy” question after they’ve made a statement criticizing Alan’s views. Most people, like you in this comment thread, don’t want to ask a question after a talk. They want to give their point of view. But still, I’ve never seen AD react in anger. I’m curious at what you might have said to him during your run-in, or did you want us to believe you simply walked up to him, said hello, and he started screaming? In public? It’s possible there was a run in and he got angry, but I highly doubt it happened out of the blue.
      I do remember what it means to have liberal democratic ideals– but I’m wondering what’s happening here? Am I the only liberal democrat who will object to all this uncorroborated hate speech and slander targeting a seasonal local who has loved and supported this island for half a century? This unrestrained glee at attacking the man, and the barely veiled 
antisemitism I am seeing in other comments is more disturbing than I can say. Every time I see yet another intelligent person jump on the slander wagon and up the hate ante to a higher level, I am stunned at my community’s intolerance.”

      You never answered me, Vicki, although perhaps you did not have a chance. There’s no time like the present.

      BTW, my comments from almost a year ago, do expose that the library’s valid concern over crowd size, and then expanded last year to include the “didn’t apply in time even though the director has final say and discretion,” has since grown to include things like roaming attendees harassing library personnel, interfering with normal library business, and taking parking spaces from local businesses for a few hours once per year or less. It took almost a year to come up with this piled on reasoning to excuse what Alan Dershowitz and others see as the Chilmark Library censoring a speaker because he defended Trump.

  3. To the editor: are you afraid the author’s feelings will be hurt if he is gently questioned on his opinion?

  4. It’s fascinating to watch the left eat one of their own. Claus von Bulow didn’t bother any of you. Patty Hearst, Mike Tyson’s rape appeal, Jim Bakker, Leona Helmsley, OJ freakin Simpson – you were all ok chatting with Alan on the porch of the general store. But Donald Trump? Oh, no. That’s a bridge too far – he doesn’t deserve representation. Maybe not even a trial. Fascinating to see such visceral hatred expressed by those who fancy themselves to be tolerant. One step out of line with the current orthodoxy of the left, and Alan D’s lifetime of liberal bonafides have no currency here. It’s an interesting glimpse into the hive mind of liberal MV. I was never a fan of Alan, nor Kunstler or Kuby, but I would be interested in listening to their legal musings. But now we’re in this post Trump bizarro world where Larry David is the intellectual grown-up in the room and Alan Dershowitz is treated like a moronic punching bag in the comments section. By all means, carry on.

    • How did you come to the conclusion that those of us on the left were OK with Alan’s representation of Von Bulow, Hearst, Tyson, or Simpson? You know what they say about making generalizations. He has a history of representing guilty rich people in high profile cases that make good tabloid headlines. He seems to love the attention and notoriety.
      For the record, I was never a fan of Alan and would never set foot on the porch of the Chilmark store for any reason.
      All that aside, my dislike for him is based on things unrelated to his legal work.

  5. I congratulate AD on a masterful job of stirring a tempest in a teapot yet again! AD is a very bright guy. Always clear thinking. Sticks to his academic and intellectual principles. I always learn something from him. And yes, he does invite controversy. But, so what?? We need more public intellectuals willing to risk dinner party invitations by exercising independent thought. As for the elitist left leaning denizens of up-island chic, so quick to find fault with others, please quit your whining. You’re getting what you really want from your summering in Chilmark. You get to bring some war stories back to your salons and privileged enclaves back on the mainland. AD is providing you material to help you find meaning in your otherwise empty wealthy lives. For even more fun with this crowd, check out Radical Chic by Tom Wolfe. A sharper wit is hard to find. And more entertaining!

  6. Disagree, respectfully, Bert. I cannot be the only one who “judges” Mr. Dershowitz on the body of his work, and not merely on his involvement w/Donald Trump.

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