So to Speak podcast transcript: Harvey Silverglate, the beatnik criminal defense attorney

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: So Harvey, long time listeners will recall that we’ve done an episode with you about FIRE in the past. That might’ve been 2019?

Harvey Silverglate: Maybe a little older.

Nico Perrino: Yeah. Might’ve been a little longer. I came up to Boston to interview you in your office. But today, you’re back here. Down here in FIRE’s Philadelphia office. It’s been a couple of years. Talking to the interns. We’re excited to have you back. Actually, the first time I met you was when I was a fire intern in 2010. You had come down and spoken to the interns, and I remember that conversation vividly. It happened in FIRE’s old office. The staff was maybe 12 or 13 people at the time. I think now, we’re something like 120 full or part time. It’s kind of amazing this organization that you founded way back in 1999 with Alan Charles Kors has grown into what it’s become, hasn’t it?

Harvey Silverglate: Yeah. Wow. Well, in a way, that’s disappointing because I was hoping that I would go out of business. Instead, the problem has gotten worse. And, in any event, FIRE has now expanded its purview from just educational liberties to the greater society. So, it looks like we’re here to stay, and it looks like it may be growing forever. What I realize is that I was really naïve, bordering on stupidity, to think that we could solve the problem of free speech on campus in 10 to 15 years and then go out of business.

But, the great Nat Hentoff was right that the problem of censorship and tax on liberty are forever. And so, vigilance has to be eternal. And, it’s simply something society has to learn to live with that you battle. Every generation has its own battles. But, FIRE ain’t going out of business.

Nico Perrino: Yeah. In addition to being FIRE’s cofounder, you’re a criminal defense attorney.

Harvey Silverglate: Yes.

Nico Perrino: What got you interested in the law? And, in particular, free speech and civil liberties work.

Harvey Silverglate: Well, first of all, I am a criminal defense and civil liberties lawyer. One of my earliest cases involved Harvard students arrested en mass for protesting against the Vietnam War. They were charged with riot in Harvard Yard. So, that was a partial criminal case and it was a partial free speech case. So, these two elements have wafted in and out of my law practice and my field of interest since the beginning.

Nico Perrino: ‘Cause the story lives on in FIRE lore. I don’t know the details of it, but the way you talk about it is these students had taken over the president’s office. Even up to carrying him out in his chair. So, how does it intersect with free speech rather than civil disobedience?

Harvey Silverglate: Yes. Okay. Here’s what happened. This was a demonstration against the Vietnam War, and what they were really demonstrating about was the students believed, and they were right, that faculty members were acting as consultants for the Department of Defense, and they were –

Nico Perrino: Can you watch your feet? Just ‘cause it’s picking up on the mic.

Harvey Silverglate: They were pursuing helping the Department of Defense in this very unpopular war. And, the building that they took over was a building of faculty records that would’ve had an indication of which faculty members were working in collaboration with the Department of Defense. That’s what they took over. They carried out the Dean of Students who happened to have his office in that building.

Nico Perrino: So, it’s not the president. It’s the dean.

Harvey Silverglate: That’s the part about the dean. And, they took it over. They were a little under 195 students who were involved in this, and they were all arrested. The campus police were supplemented by the state police. They even threatened to call in the National Guard if necessary. And, they charged all of them in District Court. And, they were all acquitted because the jury was so opposed to the war that they voted their political views rather than the facts. The facts were very clear.

Nico Perrino: Yeah. Jury nullification.

Harvey Silverglate: Jury nullification. I couldn’t believe –

Nico Perrino: You can’t advise the jury that they can do that, though, right? That would result in a mistrial?

Harvey Silverglate: You can’t. Yes. The judge would not instruct the jurors that they could disobey with the judge’s instructions.

Nico Perrino: But, if they all decide to do that without saying that’s what they’re doing?

Harvey Silverglate: Jury verdicts are final. And, they can’t be punished for failing to obey the judge’s instructions. For failing to follow the facts. It’s a great country. It’s one of the great protections of liberty that we have. And, this is something that started when England owned the United States.

Nico Perrino: The trial of John Peter Zenger, right? Was a trial that resulted in a nullification of their seditious libel law application.

Harvey Silverglate: Yep. Jury nullification has a long and distinguished history in this republic, and it will continue to do so as long as the Constitution is not amended to do away with it.

Nico Perrino: You mentioned that that case at Harvard, though, was a civil liberties and a free speech case. Obviously, they were protesting. How do you see the relationship between civil disobedience and free speech? One of the things we find now, particularly with regard to hecklers on college campuses, you’re seeing this uptick in students taking over events and shouting down speakers because they don’t like what they have to say, and they argue that that’s war speech. At SUNY Albany, a conservative commentator, Ian Hayworth, was set to give a speech defending free speech on campus, and the students did a conga line in front of him shutting down the event and screaming, “This is what free speech looks like.”

At Stanford, for example, when the dean apologized to Judge Duncan for the shutdown on campus, her classroom was taken over and papered with flyers that said, “Counter protest is free speech, too.” But, FIRE takes the position that mob censorship tactics and taking over an event is not more speech. If you do it, it’s civil disobedience and you can be punished for it.

Harvey Silverglate: It’s a crime.

Nico Perrino: It’s a crime. And so, it sounds like what the students did there was an act of civil disobedience. Although, it was paired with a political cause or a protest. Civil disobedience can be protest.

Harvey Silverglate: The students I represented who took over the university committed a crime. That was very clear. My job as a defense lawyer was to give them the best defense possible, which is what the Constitution required of me. And, juries are able to vote. Theoretically, they obey the judge’s instructions. But, in reality, conscience has a lot to do with it. I actually think that’s a very good idea because when a society goes over the edge and moves in a direction that is not good, that is too authoritarian, that a lot of people disagree with, jurors have the power to nullify. They don’t have the right to nullify, but they have the power to nullify. That’s a subtle distinction.

And, I think jury nullification is a great protector of liberty. And, I had no problem with the fact that I won those cases because the Vietnam War ended shortly after that because of the protests. What other country in the world, when the people at the top decide to launch a war, what other country in the world ends up stopping the war because of popular dissent? We’re unique.

Nico Perrino: And, I’m sorry to linger on it, but I just find it so fascinating. We don’t have these conversations often on the show. There is a history in the United States of America, in the colonies, with John Peter Zenger, as I mentioned, a newspaper publisher who criticized the colonial governor of I believe it was New York. I believe it was New York. It wasn’t Pennsylvania. And then, was put in front of a jury and the jury voted on its conscience to acquit him of the crime of seditious libel. Seditious libel, for those who are unfamiliar with it, you think of libel, you think of a defamatory statement of a falsehood. It could be seditious libel even if it was true what you were saying about them, or it was mere opinion.

So, there is that history in the American colonies. But, jury nullification isn’t supported by very many people, right? ‘Cause it’s essentially the nullification of the application of the law in what you perceive to be an unjust circumstance. So, amongst the criminal defense bar, so to speak, are you kind of a minority in thinking that it’s sometimes appropriate?

Harvey Silverglate: Well, I haven’t done a survey, but I bet you a lot of criminal defense lawyers are in favor of jury nullification. ‘Cause we’ve all represented people who have clearly violated a Constitutional law in a situation where human judgement, human compassion, human common sense tells you this was a prosecution that should’ve never been brought. And, for example, if somebody injures a loved one of yours’s, you go over and punch them in the nose. You’re guilty of assault and battery, the society says. Society punishes the wrongdoer.

But, I’ll tell you right now, you would have trouble getting a conviction. You would not very easily be convicted if you’re charged with assault and battery because jurors would say it’s perfectly understandable. He lost his cool. It was his wife or his child who was assaulted by this person. True, he should’ve left this punishment to the state. He inflicted some of his own. As long as you didn’t maim or kill the guy, you just gave him a black and blue mark, a jury would use its common sense and human judgement experience, and acquit.

Nico Perrino: It’s interesting you bring up that example ‘cause there is a video going around the internet right now. There’s a group in the UK that’s I think called Just Stop Oil. They’re an environmentalist activist group trying to stop the use of fossil fuels and oil, and one of the things they do is they block off streets to prevent cars from coming through, and they sit down, and they hold arms, and they’re wearing these orange vests. And, in this video that’s gone viral, a woman gets out of her car and says, “I need to get my daughter to the hospital. She’s sitting the car.”

And, there a lot of people in the comments on these videos that said she should just drive her car through them. She’s told them. She’s given them notice that a life is potentially at stake. This child needs to get to the hospital. And, they continue to sit there and block her from taking care of her child. Now, I don’t know what the laws are over there, but I imagine if she drove through these protestors, that would be something she could potentially be prosecuted for. Although, there would be an argument maybe that she was held hostage, or entrapped, or something. But –

Harvey Silverglate: I’ll tell you what would’ve happened. If she had drove through and hurt or even killed somebody, it would be a death caused in the process of saving another. I don’t think any prosecutor would bring a charge. And, if the prosecutor brought it, no jury would have 12 out of 12 people voting a conviction. A prosecutor is ethically required to bring a charge only when he or she is confident that there is enough evidence and the circumstances are such that a conviction is likely. I do not think a prosecutor would bring that prosecution because a conviction is not likely. The jury would not criminally convict this woman for saving her child. It’s as simple as that. Now, probably what she could’ve done –

Nico Perrino: And, she didn’t do anything in this case. At least, as far as the video shows.

Harvey Silverglate: She could’ve gone very slowly and sort of pushed them aside with her car. Maybe somebody would’ve been hurt, but not awfully likely. There are ways out of these situations. But, if in the end somebody was hurt, there wouldn’t be a jury conviction, in my opinion.

Nico Perrino: You talk about jury discretion or jury nullification. The ability of a jury, despite the fact someone who is on trial might’ve clearly committed the law if it was done, or the prosecution was brought in a context that made it seem like it should’ve never been brought in the first place, they had the discretion to nullify that despite what the judge might tell them. What about prosecutorial discretion? You see a lot of conservatives in particular, law and order conservatives right now upset that there are many newly elected district attorneys in many cities who are not prosecuting petty crime, or even pursuing folks who steal from a Walgreens or break car windows in the streets of San Francisco, or make life difficult for people peacefully going about their business who are just trying to purchase something in the Walmart and they see someone just grabbing things.

The Walgreens employees are told not to do anything. Let the police deal with it, but the police don’t deal with it because they know that the prosecutors are never gonna prosecute it. How do you feel about those sorts of things?

Harvey Silverglate: The problem with that, of course, is a lot of these conundrums, there are two sides. One is that there are limited resources for prosecuting people. You’re much better off prosecuting illegal possession of guns, assaults and batteries, murder, crimes like that than petty theft. The other side of the argument is it creates this society which becomes quite lawless in certain ways. After all, merchants have to make a living also. If petty theft gets too high, they have to close down their stores.

So, the difficult questions have two sides for answers. Part of the problem with the petty theft is that our society hasn’t dealt with inequality well enough, and there are people who steal because they need to rather than just because they want to. So, that has to be put into the mix. I think that a announced policy of not going after petty theft puts a tremendous burden on merchants, and I think it’s probably not a good idea. I think it is okay if these people are arrested and prosecutors decide we’re not gonna prosecute this case, or if you do six months of community service, we’ll drop the charge. That’s a good halfway point.

A lot of these difficult questions don’t have easy, as you know, answers. The answer is either no, but or yes, but. And, the thing is there is this human phenomenon called nuance. And, we don’t think in a sufficiently nuanced way about these hard issues. But, there are middle points that can solve a lot of these problems in a nuanced way that will not give either side a complete victory, which is better for society in the long run.

Nico Perrino: Well, you saw in the ‘90s under Mayor Rudy Giuliani the implementation of the broken window policy, which is you go after these low level crimes, broken windows, theft, drug use in the streets. Because the theory in their mind was these are crimes or misdemeanors that signal worse behavior to come. Or, that the people who do these things often create multiple – But, it was a civil liberties disaster in many cases.

Harvey Silverglate: Right. What the broken windows does is creates an environment where petty crime is tolerated, and then it leads, in theory, to more serious crimes. But, when you announce you’re not going to prosecute a certain kind of crime, you encourage that –

Nico Perrino: Behavior that gets repeated.

Harvey Silverglate: Yes. Yep.

Nico Perrino: As a criminal defense attorney, and FIRE does due process work on campus, I’m sure you’ve had experiences throughout your career where by you representing people who you know are guilty or who you suspect are guilty, I don’t know if these are things – I’m not a lawyer myself. You ask your client. Probably not. You don’t ask your client whether they did it or didn’t. Maybe you do. But, I think there’s a fundamental lack of education around first principles in the United States, and particularly fundamental lack of understanding and appreciation for the principles of due process where even if someone looks very guilty, they need to be allowed to have a robust defense. Either appointed or one if they have means, they secure themselves. They get their own lawyers.

Why is that the case? Why does someone who they’re caught on video murdering someone or caught on video assaulting someone, why does that person deserve a robust defense just as much as the person where the evidence isn’t as clear? Or, there’s a suspicion that it’s a bunk prosecution and they didn’t commit the crime?

Harvey Silverglate: Okay. First of all, you realize that the Constitution doesn’t talk about deserve. It talks about rights. Moral issues in these ethical judgements are not in the Constitution. Number one. Number two: I have never had a criminal case where I haven’t asked the client if he or she was guilty.

Nico Perrino: Yes. Are there some lawyers who don’t, though?

Harvey Silverglate: Oh, some lawyers do not. But, let me tell you why a lawyer should and why I have always done it. Including in murders. Because a lawyer who isn’t in possession of all of the facts cannot give adequate representation. Vigorous representation of any defendant. Because you then end up getting surprised by something you weren’t prepared for because you haven’t ascertained every single fact from the client. A lawyer has an obligation to not disclose this to anybody.

Remember, there are three groups in our society who have absolute privileges to now disclose what they learn from a client or a patient. It’s the doctor-patient privilege, there’s the lawyer-client privilege, and there’s the priest-penitent privilege. Those are the only three. People in those three professions cannot be forced to disclose what is told to them, and the reason is that they cannot do their jobs unless they know every fact.

Now, what is the result of the fact that I find out that a client of mine has committed a murder? I say, “Well, you’re not gonna take the stand.” But, it’s not up to me whether the client takes the stand. I had one case in which a client confessed to a murder and decided he was gonna take the stand and deny it. What I did was I put him on. I had him identify himself. And, I said, “Would you tell your story to the jury?” I did not ask questions because I did not want to be ethically – I did not want to be complicit in supporting perjury. I probably could not have gotten in trouble for doing so. But, as a matter of my own professional standards, I said, “Would you tell your story to the jury?”

Told the story to the jury. Was convicted. It was not a convincing story ‘cause it was against all the known facts. So, life is nuanced, and law practice is nuanced. And, there are usually ways out of any conundrum.

Nico Perrino: Okay. Yeah. So, do you find that there’s any personal moral quandary that you have if you know that someone committed a murder with providing them a robust defense? Or, is the argument that to the extent the state is gonna take someone’s liberty or perhaps in some states, even their life away, the burden of proof is on them to bring it to bear? Otherwise, you just take it at face value?

Harvey Silverglate: I go by the standard that it is incorporated in the following efforts: Better that 10 guilty people go free than that one innocent person be convicted. A society dedicated to liberty has to make the judgement in that direction. In the end, we don’t live in a more dangerous society. The biggest danger in our society is the fact that guns – that the court has interpreted the Second Amendment allowing anybody to own a gun. I think that’s probably an overly expansive definition of what the Constitution requires, but I’m not on the Supreme Court. There are too many guns.

Nico Perrino: Criminal defense attorneys don’t get on the Supreme Court, do they?

Harvey Silverglate: They do not. I think Ruth Bader Ginsburg – I’m trying to remember if she ever did any criminal defense work. She was a public defender, I believe.

Nico Perrino: She might’ve been. Yeah.

Harvey Silverglate: But no, they don’t get on the Supreme Court. But, I think that in the end, what you’re saying is there are costs to being in a society where liberty is valued very, very highly. I don’t deny that. But –

Nico Perrino: But, there are also costs living in a society where the government can just say someone’s guilty without having to prove it, and throw them in jail. And, that’s why I think at its core that even when an attorney knows they’re guilty, it’s important that the attorney force the government to make its case.

Harvey Silverglate: Oh, yeah. Those costs. The question you asked me, I can’t count the number of times I’ve been asked the question, and here is my answer: If I was a doctor, and I’m walking down the street, and some guy walking down the street has a heart attack, and that is a very vicious member of the mafia. A known killer.

Nico Perrino: And, someone who is likely to kill again.

Harvey Silverglate: Who is likely to kill again. Do I go over and apply cardiac pulmonary resuscitation or don’t I? It is unethical for a physician to make the judgement over life and death. Physicians take a Hippocratic Oath. If they err, they err on the side of saving a life. They do not make a decision that person should be dead. Lawyers have exactly the same obligation. My obligation is to ensure that the rights of this person are protected. By protecting that person’s rights, I’m protecting your rights. I’m protecting my rights. And, it sounds cold blooded, but it’s not. Consistency is important.

Nico Perrino: Process is important.

Harvey Silverglate: Process is important. That’s why the Constitution talks about due process. Everybody gets the same trial. You don’t make decisions ahead of time if someone’s entitled to a fair trial and who isn’t. Who deserves a lawyer and who isn’t. We have public defenders to represent for free some of the worst people in the country. And, in the end, it protects a free society.

Nico Perrino: Yeah. It protects the institution of justice, as well.

Harvey Silverglate: Correct.

Nico Perrino: I often fear that we lose trust in our institutions because we lose trust in the process that the institutions go through to arrive at their outcomes. You can only trust the outcome of a trial if you trust that the process was fair. And, it’s the same thing with freedom of speech, by the way.

Harvey Silverglate: Yeah. Absolutely. The Constitution’s use of the word “due process.” It’s right in there.

Nico Perrino: Yeah. It’s the same thing with freedom of speech. Right now, we see a rejection or a lack of trust in many of our institutions. You can look at the CDC around the Coronavirus thing, and in many cases, because there were efforts to censor dissent. Just look at the lab leak theory of the Coronavirus. It looks now like some of the scientists behind the proximal origins paper that was really at the crux of arguing that it came from the wet market in Wuhan rather than the lab in Wuhan. They knew themselves that it was probably more likely that it came out from the lab, but they worried about the consequences of it.

And, you saw other institutions putting pressure on social media companies to censor people who had dissenting opinions about the origins of Covid. Well now, it looks like according to United States intelligence agencies that not only is it possible that the Coronavirus leaked from a lab, it’s more likely than not that it leaked from a lab. And then, you see surrounding the Covid debate, as well, and I’m just using that as an example ‘cause it’s most recent, the attempts to censor speech about vaccines, or the efficacy of masks, or even how you could get Coronavirus. One could argue that you could get it outside, or from surfaces. It seems less likely now.

And, because there were efforts to censor and kind of calcify the science at any one moment, then it became clear later that the science had changed, people just lack trust in the institutions. But, I think if they allowed for a more robust debate around the science or the history, and then the debate pushed the conversation naturally in one direction or another, they would have been more inclined to accept the conclusions.

Harvey Silverglate: Remember this: if censorship is allowed, the civil war begins over the question of who does the censoring and whose the censored. And, if nothing else, civil peace is kept by having the same rule applied to everybody, and that rule allows absolute free speech.

Nico Perrino: You grew up in Brooklyn.

Harvey Silverglate: Yes.

Nico Perrino: Did that experience in Brooklyn [inaudible] [00:27:59] is a mutual friend of our’s, shape your outlook on civil liberties issue and perhaps lead to you going into the line of work that became your life’s profession?

Harvey Silverglate: Yes. If I grew up in Scarsdale or I grew up in Ames, Iowa, I would probably have a different point of view because I would be imbued with a different culture.

Nico Perrino: Well, you were for a long time on the board of the Massachusetts’s ACLU. You were its director for a while.

Harvey Silverglate: Correct.

Nico Perrino: In making Mighty Ira, I was shocked by the number of people who worked at the ACLU or had some connection to it who grew up in Brooklyn.

Harvey Silverglate: Yeah. Well, I was not director. I was president of the board.

Nico Perrino: President of the board. Excuse me.

Harvey Silverglate: I was president of the board for 30 years. But, in Brooklyn, it was a pretty tough neighborhood. It was composed of 50% Jews who lived together. There were the Jewish buildings. 50% of Italian Catholics. They lived in the Italian Catholic building. There were a lot of conflicts between the two, even though many of them were immigrants, and the sons of daughters of immigrants. They had a lot in common that they didn’t realize.

But, I had an aphorism. When the Italian kids called me a kike, I said to myself, “Sticks and stones can break my bones, but names can never harm me.” So, I developed a very thick skin. Now, the Italian kids –

Nico Perrino: Yeah. Could we talk about that aphorism, too? ‘Cause I think some people think of it literally. Like, words can never hurt you. They can never break through your skin or upset your mental equilibrium. And, that might be true for some people. But, I think what it’s telling you is that you don’t need to let words hurt you or harm you. That that’s a choice that you get to make for yourself. And so, it kind of stiffens the spine, so to speak, so that you’re not a wilting flower every time you encounter someone who might be mean spirited.

But, a lot of times, people take it literally, and they dismiss it as a result of saying, “Well, no. Words can be hurtful.” Rather than thinking it’s words don’t have to be hurtful. You have a choice. There’s something between what someone else has said and your reaction to it. It’s how you interpret that and reply to it in your mind.

Harvey Silverglate: Yeah. Correct. It’s the definition of what hurtful is. If hurtful is to believe feelings are hurt, well that’s too bad. That’s the price of living in a free society. You have your feelings hurt daily. As long as you don’t get punched in the nose. And, I have developed a very thick skin, partly because I’m a free speech absolutist. Partly because I’m a criminal defense attorney whose represented some very bad people. Partly because I’m an academic freedom absolutist and I believe people should be able to spout some very weird – To use the word hurtful, I hate the word hurtful.

And, I think that you have to develop a thicker skin living in a free society. Think of the alternative. So, is it perfect? Is it comfortable? No. But, whoever promised us a rose garden? Life is difficult. There’s diseases. There’s disasters. There’s betrayals. There’s global warming. We have an enormous number of problems. Nobody ever promised us a rose garden. If you balance everything out, we’re better off with absolute free speech than we are with exceptions. It’s really as simple as that.

Nico Perrino: How’d you get to Princeton?

Harvey Silverglate: Well, my father who never finished high school, he had three professions. He was a furrier, he was a cab driver in Brooklyn, and he ran a candy stand. Ran. Didn’t own. Ran a candy stand in the southern movie theater in Times Square. And, we lived hand to mouth because he didn’t have even a high school education. And so, what happened was when he was a furrier, he was a member of the furrier’s union. He reported to the National Labor Relations Board a crooked election. He had learned about a crooked election by the Russian thugs who ran the furrier’s union.

Two days later, two thugs showed up at our door asking my mother, “Is Mr. Silverglate homes?” He wasn’t, fortunately. Two weeks later, we moved from Brooklyn to Maywood, New Jersey. A suburb of Hackensack. ‘Cause my father got a job at a non-union fur shop in Passaic, New Jersey. So, here we are now. I am Maywood, New Jersey. A Brooklyn kid. I didn’t really like Maywood, New Jersey. I was a Brooklyn boy. But, my father’s safety was involved. So, we moved.

Princeton had a scholarship fund set up by a fellow named Caine. C-A-I-N-E. He was a New Jerseyite. He never married. Never had children. And, he donated his full fortune from raising thoroughbred racehorses to Princeton with the provision that Princeton could use the income for other purposes generally, it had to give full scholarships to three students. One from Bogota High School, which is where I went, one from Hackensack High School, which was the neighboring town, and one from Hasbrouck Heights High School. I was first in my class in Bogota, and I got the Caine Scholarship. Believe it or not, Princeton was the only place I could afford to go because I had a full scholarship. All tuition. All costs.

Nico Perrino: What did you think of Princeton when you were there? I remember talking with your cofounder of FIRE, Alan Charles Kors, who it sounds like didn’t love Princeton.

Harvey Silverglate: No, I didn’t love it. I hated it.

Nico Perrino: Was it anti-Semitic there?

Harvey Silverglate: It was anti-Semitic. There were no blacks in my class. 52% of my classmates were from south of the Mason Dixon line. There was segregation. In fact, the son of one of the governors or mayors who put fire hoses on the black demonstrators, his son was in my class. I think it might’ve been Art Hains. And, there were nine blacks in my class. They were all sons of African presidents who had traveled cheap. No American blacks. I graduated Princeton in ’64. The class of ’65 had a black kid named Robert Engs. I said, “Bob, how did you get in?” And, he said, “My father’s an Air Force general and they were afraid he’d strafe the campus if they didn’t let me in.”

It was awful. I got a first rate education, but it really tested my ability to be in a hostile environment. In an odd way, I think that my thick skin was developed at Princeton by the number of people who called me a kike. I suddenly realized what it meant as sticks and stones can break my bones, names can never harm me. It was a hostile environment, to use a modern phrase. But, I got a great education. It was good enough so I got into Harvard Law School.

Nico Perrino: And, when did you decide you wanted to be a lawyer?

Harvey Silverglate: That is a story that is one of my favorite life stories. Funny you should ask that story.

Nico Perrino: We don’t have a ton of time, so we’ll take the abridged version.

Harvey Silverglate: Here’s the abridged version. My parents wanted me to be a doctor. All Jewish kids in my generation were supposed to be doctors. In fact, my girlfriend was chosen by my parents because she was the daughter of our physician in Hackensack, New Jersey. The idea was I would go to medical school, we would marry, and I would go into partnership with her father, and when he retired, I would –

Nico Perrino: They had the whole life planned out for you.

Harvey Silverglate: Whole life planned out. Princeton gave me a fellowship to go to Paris the summer between my sophomore and junior year. They got me a job where I could earn board. They paid my air fare. I was out of the country and away from my family for the first time ever, and I rethought my life. I decided I was not in love with this woman who they had chosen for me.

Nico Perrino: Was she in love with you?

Harvey Silverglate: I think so.

Nico Perrino: I’m assuming you were chosen for her, as well.

Harvey Silverglate: Yes. And, I decided that I was more interested in the people that caused problems than the people’s germs. The problems germs caused people. I switched from pre-med to pre-law. I broke up with my girlfriend. I went to Harvard Law School. Upon my graduating, I met Elsa Dorfman, who I fell in love with instantly. She fell in love with me instantly. And, that began a 53 year romance, which ended when she died of kidney failure in 2020.

Nico Perrino: She was really a fantastic human being. And, for any of our listeners who are interested in learning more about your late wife, Errol Morris made a documentary about her.

Harvey Silverglate: The B-Side: Elsa Dorfman’s Portrait Photography. He made it.

Nico Perrino: And, you guys had an incredible life together. I don’t probably know it as intimately as maybe Will Creeley, whose father was a friend of yours’s.

Harvey Silverglate: Probably one of Elsa’s five closest friends in life.

Nico Perrino: Would it be fair to say that you kind of ran in famous beatnik circles?

Harvey Silverglate: Yes.

Nico Perrino: Because a lot of your friends were famous beatniks, right?

Harvey Silverglate: Yes.

Nico Perrino: Like?

Harvey Silverglate: Allen Ginsberg. Peter Orlovsky. Well, in a way, Bob Creeley.

Nico Perrino: Bob Creeley. Will Creeley’s father is a famed American poet.

Harvey Silverglate: Right. Great American poet. One of Elsa’s five closest friends in the world. Allen Ginsberg. So, I –

Nico Perrino: Yeah. Is there a picture of Bob Dylan in your guys’ home?

Harvey Silverglate: Yes.

Nico Perrino: I vaguely recall her taking one of those.

Harvey Silverglate: Elsa took a fabulous photograph. Bob Dylan came to Cambridge in a funded review tour. And, Allen used to stay at our house every time he was in the area doing a poetry reading or whatever, and he got a note saying – It was pinned at the door ‘cause we weren’t home when Dylan came by. It said, “Allen, I’m gonna be playing at the Harvard Square Theater tonight. The rolling films and review. Come on by. I left your name at the door. You can get in.” So, Allen says to Elsa, “Hey Elsa, this is your opportunity to take some good photographs of a friend of mine.” She says, “Who?” He says, “Bob Dylan.” She says, “Oh yeah. Let’s go.” So, she –

Nico Perrino: Is Bob famous at this point?

Harvey Silverglate: Oh, yeah. Very famous. So, she grabs me and she says, “Harvey,” – She was born and bred in Boston. “Harvey, let’s go.” So, the three of us go to the Harvard Square Theater. We went backstage because Allen just said, “Oh, tell Bob that Allen’s here.” And, Allen said, “Come on.” So, Elsa took some fabulous pictures. She has an iconic picture of Dylan teaching Allen how to play the guitar and it’s called the Guitar Lesson, and it’s got the date. And I, in fact, donated a copy to Harvard University recently, and it’s hiding in the office of the president.

Nico Perrino: Okay. Would you be okay with us sharing a photo on the video version of this? So, people can see what you’re talking about.

Harvey Silverglate: Sure. Yep. And, Larry Bacow had just stepped down from being president of Harvard. He just told me the other day that the new president, Claudine Gay, she’s leaving it in the office hanging up. It’s such a wonderful picture. And so, that El had a lot of poet friends, and I got to know them all. I sort of benefited. I know a lot of people, but she knew a lot more people.

Nico Perrino: Oh, wonderful. When you went to Harvard Law School, my history might be wrong here, but wasn’t there a time for most of American history, in fact, when you didn’t need to go to law school to become a lawyer?

Harvey Silverglate: In the early days, that’s true.

Nico Perrino: Yeah. Now, you need to go to an accredited law school in most cases to become a lawyer. They have reader programs in some states.

Harvey Silverglate: Right. There was an early period when all you had to do was apprentice to a lawyer, and it was assumed that if you could apprentice, you could pick up what you needed to know. I think that’s probably good. I don’t think you should have to go to law school to be a lawyer. I think you should have to pass a test for competence. But, higher education is an industry.

Nico Perrino: There are a lot of people who say it doesn’t need to be three years. It could be two years.

Harvey Silverglate: Oh, easily could be. Absolutely could be two years.

Nico Perrino: Yeah. What got you interested in free speech? Do you have an origin story?

Harvey Silverglate: I was born and raised in Brooklyn.

Nico Perrino: So, that is the origin story?

Harvey Silverglate: That’s the origin. It’s cultural.

Nico Perrino: There wasn’t some sort of incident at Princeton?

Harvey Silverglate: No, no. I was raised in a culture where you didn’t punch the other guy in the nose. You called him or her a name, and that got it out of your system. And, it’s a fabulous formula for civil peace. Is it comfortable? Well, like life is comfortable. No, it’s all always comfortable. But, I always talk about Life Magazine used to have a part with the Saturday Evening Post. Those were the two big family magazines. And, Life had a brilliant –

Nico Perrino: Saturday Evening Post, by the way, used to published by Curtis Publishing, which is the building that FIRE’s office used to be in here in Philadelphia. I think they’re in Indianapolis now.

Harvey Silverglate: Correct. Small world.

Nico Perrino: I know.

Harvey Silverglate: But, Life Magazine published a centerfold. A two page spread. Life had red letters on a white background. That was the logo of Life. And, if you hold up the centerfold, it said, “Life, consider the alternative.” And, of course, it was a double entendre. The alternative for the ad was the Saturday Evening Post. But, think of the alternative to Life. It was a brilliant ad.

Neither of my parents went to college. My father never finished high school. There were notebooks in my house, but there was one thing we had. A subscription to Life Magazine. It was mostly pictures. It was called the Picture Magazine. We had Life Magazine in the house. That was what I was brought up with.

Nico Perrino: Yeah. When you met Professor Kors at Princeton, did you guys have kind of a shared concern for academic freedom and freedom of expression at that point? Or, did it only come as you went through your career as a criminal defense attorney seeing what’s happening? And, you were like a Cambridge institution, just so our audience knows, and you’re very much tied in with what’s happening in Harvard Yard and Harvard Square. And then, of course, Alan went on to become a professor. One of the greatest professors of the Enlightenment in America, if not the world. So, you both knew about campus issues including violations of free speech rights. So, did it just evolve over time?

Harvey Silverglate: Yes. We were friends at Princeton. And, we came to Cambridge. I believe he got his PhD at Harvard and I got my law degree at Harvard.

Nico Perrino: Oh, did he really?

Harvey Silverglate: Wasn’t he at Harvard?

Nico Perrino: I don’t know. Maybe.

Harvey Silverglate: I think so.

Nico Perrino: It’s probably easy enough to find online.

Harvey Silverglate: Anyway, what happened was there was an incident at Penn where a Israeli born student named Eden Jacobowitz was prosecuted for racial harassment because a group of black sorority sisters were whooping it up. This was during the exam period. They had finished their exams. He still had to study for his exams. And, were outside his dorm room making a lot of noise. He was trying to study, so he opens the window and he yells, “Shut up you water buffalo.”

Sheldon Hackney, the appropriate named president of Penn at the time got the theory that it was a racial epithet because he thought water buffalo was a large, unruly, black animal native to Africa. Well, in fact, water buffalo are not black. They’re brown. And, they’re not native to Africa. They’re native to Asia. And Eden, whose first language was Hebrew and Yiddish, was calling them the best English translation he could make of the word “behema.” Behema is a large, unruly animal that my grandmother used to call me when I was unruly. “Stop being a behema.” My grandmother spoke only Yiddish. Stop being a behema. A large, unruly animal.

That’s what he was saying. There was no racial overtone or meaning at all. Kors called me up and said he was the faculty advisor to Eden, but they needed an expert in free speech and academic freedom. Could I work with Kors on the defense of Jacobowitz? I said, “Sure.” And, we did. Kors was brilliant in his defense. He got every newspaper in the country interested.

Nico Perrino: National headlines. It became a cause. Yeah.

Harvey Silverglate: National headlines. It was a cause. I helped on the legal end. We were gonna sue Penn if we had to. But, we prevailed. Prevailed because Hackney finally realized he was wrong, and because of the pressure of the press stuff, he had to admit it. And, after that, Kors and I started getting requests by faculty members and students about their own free speech problems. We couldn’t handle it all. We had day jobs.

We started FIRE. We hired one executive director, and Kors and I volunteered as much time as we could. And, I expected FIRE would go out of business is 10, 15 years ‘cause the problem of censorship on college campuses was such a self-contradiction. So absurd that it would be like topping over a tower of dominoes. Well, I was wrong about that. It’s been more persistent. We now have about 120 –

Nico Perrino: I think for some reason the number 124 full and part time. That might include interns.

Harvey Silverglate: So, I’m not longer predicting anything. But obviously, the fight for liberty, as Hourglass has probably told you, is eternal. It’s never won, but you’re lucky if it’s never lost. If it goes on forever. And, that’s okay with me now. I’m adjusted to the fact.

Nico Perrino: Last question here, ‘cause I know you have a train to catch to head back up north. We talk about Brooklyn a lot. I have a lot of experience talking with people who went into civil liberties, particularly free speech work, because they grew up in Brooklyn. There’s an old saying that if you call up the ACLU with a free speech case and get someone with a Brooklyn accent on the phone, then you’re probably in good hands.

Harvey Silverglate: Yeah. It’s cultural.

Nico Perrino: But, we live in an increasingly empathetic society where bullying is top of mind for parents and educators. And, there are a lot of systems in place to ensure that kids’ interactions with each other don’t devolve into name calling or into bullying. So, Ira talks about this. Same sort of story. They were on the streets of Brooklyn. There were no parents there to mediate their differences. They figured out how to solve their disputes through words, and sometimes that was name calling, but you came out of it knowing that you had agency and you could figure out things on your own. In an increasingly empathetic, and sensitive, and kind society, do you worry that people will appreciate freedom of expression the same way you guys did?

Harvey Silverglate: First of all, let me tell you the movement toward outflowing hate speech, the movement toward protecting kids’ feelings rather than the rights of those who wanna call them names is very dangerous. Dangerous. Why? Because it doesn’t give you any indication of who you should not turn your back on. In Princeton, when people called me a kike, I said to myself, “That’s somebody I’m not gonna turn my back on. That’s somebody I’m not gonna trust. That’s somebody who hates me.” I knew that because we were free to call each other names.

The ability to express hatred is easily as important as the ability or the right to express love. I love you and I hate you are two sides of the coin. But, you wanna know who loves you, and you certainly wanna know who hates you. No distinction should be made legally between hate speech and love speech. It’s as simple as that.

Nico Perrino: Well, I think we have to leave it there, Harvey. We’ve got a lot more stories that we can run through. And so, hopefully we have –

Harvey Silverglate: Endless.

Nico Perrino: It’s an excuse for another podcast. But, I appreciate you taking the time here on your visit to FIRE’s Philly office. Maybe next summer, you come back, talk to next year’s interns and we do part two.

Harvey Silverglate: Yep.

Nico Perrino: Thanks again.

Harvey Silverglate: This is part three actually, isn’t it?

Nico Perrino: Well, yeah. Yeah, I guess the first podcast we did was kind of your story of the founding of FIRE up until now and talking about things that were happening today. I wanted to get a little bit more of your background here, and also your background about being a criminal defense attorney. So, I think we got that. But, I’m sure you have a lot of stories about working with clients between Princeton and the founding of FIRE.

Harvey Silverglate: Yeah. There’s a reporter for the Boston Globe, Mark Feeney, who did the obituary. He’s actually a movie reviewer, but he did the obituary of Elsa because he was a good friend of her’s. So, he did her obituary.

Nico Perrino: She had so many interesting friends. Allen Ginsburg. Errol Morris. Yeah.

Harvey Silverglate: Yeah. And, he has said to me that he thinks I should write a memoir of life with Elsa. That she was so interesting that I should write a memoir about it. And, I’m thinking of it. Right now, I’m doing a book, The Shadow University Part Two with Sam.

Nico Perrino: Samuel Abrams?

Harvey Silverglate: Yeah. And, yeah. Assuming I’m still censured here for that. I am 81. I’m thinking of doing a book about life with Elsa ‘cause it was so interesting. So interesting.

Nico Perrino: Yeah. Well, you should at the very least sit down and tell the stories. You tell the stories. Record them. It might make writing that memoir a little bit easier. And, you can get someone to kinda help you pull it all together. But, I would be interested in reading that book. So, I do hope that you find the time to do it.

Harvey Silverglate: Yep. I hope I find the time to do it.

Nico Perrino: Thanks, Harvey.

Harvey Silverglate: All right, Nico.