How the First Amendment Saved Jamie Raskin's Father | Opinion

I like Congressman Jamie Raskin (D-MD). He was my former student at Harvard Law School, a distinguished professor of constitutional law and now a progressive member of Congress leading the House impeachment managers in their effort to have the Senate convict and disqualify former President Donald Trump.

During one of his Senate speeches this week, he quoted his late, great father Marcus Raskin. I also knew Marcus: I met him, a prominent left-wing intellectual, when he was indicted for conspiracy to obstruct the Vietnam War effort by encouraging young men to resist the draft. He coauthored a call to resist illegitimate authority and stood trial along with doctor Benjamin Spock and others who advocated the burning of draft cards, break-ins at draft boards and other unlawful actions to obstruct the war effort. Many young people did what was advocated and were punished for their unlawful acts.

Marcus, who was charged only with inciting these unlawful acts by others, was represented by my mentor, teacher and dear friend, General Telford Taylor, who had been America's chief prosecutor at the Nuremberg trials. I consulted with Taylor on Marcus' defense, which ultimately prevailed.

Unsurprisingly, the defense was that the First Amendment protected Marcus' advocacy of resistance to the draft, even if such resistance then took a form of unlawful actions by others. Civil libertarians and liberals from all across the country rallied to the defense of "the Spock 5," invoking the First Amendment.

The jury acquitted Marcus, and the court of appeals reversed the convictions of the other defendants. They were all saved by a broad reading of the First Amendment.

Several years later, Marcus was once again protected by a broad reading of the First Amendment, when he served as an intermediary between Daniel Ellsberg, who unlawfully stole the Pentagon Papers, and The New York Times, which published them despite their being classified. But for the First Amendment, Marcus would have been charged with conspiracy to publish classified material.

Lead House impeachment manager Rep. Jamie Raskin
Lead House impeachment manager Rep. Jamie Raskin (D-MD) congress.gov via Getty Images

Now, Marcus' son Jamie is quoting his father in a speech that would cut the heart out the very First Amendment that twice saved his father. If Jamie Raskin's current view of the First Amendment had prevailed back in the day, his father would likely have been convicted of two felonies. If President Trump incited his followers to commit unlawful conduct, so did Marcus. I believe that neither incited violence and that both were protected by the First Amendment.

Nor is he alone. Hundreds of members of Congress, academics and ordinary Americans seem willing to compromise our fundamental freedoms of speech, expression and assembly in order to create a "Trump exception" to the First Amendment.

I would have thought that Jamie Raskin—in light of his history as a constitutional law professor, his family history under the First Amendment and his own protests against the 2016 election—would be leading the charge to protect the First Amendment. But no! He is leading the charge to compromise President Trump's free speech rights—and thus the rights of all Americans to express controversial, even wrongheaded and provocative, views.

Jamie Raskin has sought to distinguish his father's invocation of the First Amendment from Donald Trump's on the ground that his father was an ordinary citizen protesting the actions of the government, whereas President Trump was the government itself. But the First Amendment recognizes no such distinction. Moreover, President Trump was protesting the actions of other branches of government—wrongly in my view, but constitutionally nonetheless.

Marcus Raskin's broad invocation of the First Amendment to protect his advocacy of unlawful acts of protest sets the correct standard under which such constitutional protections for speech should be judged. Jamie Raskin's far narrower and more partisan view of the First Amendment is inconsistent with that view. I hope that the next time Jamie Raskin quotes his wonderful father, he will remind his listeners how the same First Amendment that he is now seeking to narrow protected his father's just and righteous protests against the Vietnam War—as well his own unrighteousness protests after the 2016 presidential election. Free speech for me and my father, but not for Donald Trump, is not the American way.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, is available on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.