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Alan Dershowitz Talks Porn, Free Speech And Defending The Bad Guy
Interviews|Dec 23, 2019

Alan Dershowitz Talks Porn, Free Speech And Defending The Bad Guy

The Famous US Attorney Gives Us His Side Of The Bob Guccione Story
Sean Bruce

Our industry – that is, the adult industry – is small. Sure, the scope is huge; there is no denying the influence pornography has had on society, especially these days. But its characters and the original visionaries, particularly in print, are relatively few. You can probably name them on one hand: Hefner, Flynt – and our guy, Bob Guccione. 

And while the first two names on that small list have had countless column inches afforded them, or in the case of Larry Flynt, a lionising filmic depiction, Bob Guccione, the founder of Penthouse Magazine remains relatively unknown.

Certainly, in many regards, he was larger than life. But the gold chains, bared chest and his colourful public persona belied a different man, whose artistic sentiments and deeply held convictions around sex, society and politics were somewhat more nuanced than what you might’ve gleaned through the lens of this magazine. 

To better understand his motivations, we spoke with another well-known American who, for a period, was one of Bob’s fiercest defenders. Alan Dershowitz, whose legal career is far too storied to fit into this brief introductory paragraph, is perhaps best known for his controversial choice in client. Harry Reems (who was convicted under obscenity laws for distribution of the infamous Deep Throat) O.J Simpson, Jeffrey Epstein, Harvey Weinstein, are just a few names that have made their way into Dershowtiz’s Rolodex over the years. 

During the 70s, 80s and 90s, pornography, speech and expression were under threat by right-wing religious types, on one side, and far-left radical feminists on the other. 

Against these forces, together, Dershowitz and Guccione were integral in the battle for the preservation and defence of the U.S. Constitution’s First Amendment. 

The impact of their work, which goes far beyond nebulous ideas about obscenity and pornography, can still be felt today.

How would you describe Bob Guccione?

He was a surprisingly low-key, serious intellectual, highly regarded artist and a literary innovator. When you met with Bob, you were in for an intellectual feast. He would show you his art collection, he would show you his own paintings. He would talk about serious philosophical issues.

When I first went to the Penthouse mansion on 70-something street, I was surprised to see what good taste was reflected in the house itself. Much of the material was ordered from Italy. It was elegant and beautiful, and the one thing that was absent, that would surprise everybody, there were no women other than his staff. There were no Penthouse models. It was not a sexual environment or atmosphere. It was a very intellectual and artistic atmosphere, and the people he invited for dinners, which I was included among them, were not the flashy Hollywood types. They were serious intellectuals. Philosophers, artists and sometimes athletes. 

Bob didn’t have a strictly academic background. How seriously did you take him as an intellectual? 

Look, I grew up in Brooklyn as a street kid, and the smartest people I ever met were not my colleagues at Harvard. They were people I knew from the streets of Brooklyn, and so I have never believed that there is a necessary correlation between formal education and intelligence. And Bob was a perfect example of somebody who had incredible smarts; street smarts and artistic smarts and emotional intelligence. He understood his academic limitations and he never tried to show off.

At dinner parties, he would sit and mostly just think, and then occasionally say a few things slowly and with humility, that turned out to be among the most brilliant comments made by the people at the event. He was understated, and that’s hard for people to understand when you see him through the pages of his magazine. He’s not that person.

He had very controversial ideas about his magazine. Some of them succeeded, some of them failed. I, for example, was a critic of the magazine becoming too explicit in the end, but he wanted to do that. But that’s not who he was. I was once in the Playboy Mansion for some event. Nothing could be more different than the Playboy Mansion on the one hand, and Bob’s beautiful townhouse in New York on the other hand. There’re tremendous differences between the men as well. I’ve met Hugh Hefner, I’ve met Larry Flynt and I knew Bob Guccione. You can’t lump the three of them together. They are extraordinarily different people. They may have been engaged in some of the same activities from a business point of view, but they bore no resemblance to each other from a personal point of view. 

Would you call Bob Guccione a businessman or a visionary first?

I don’t think he was a good businessman. I think he was a mediocre businessman. I think he had a great vision, but some of his enterprises obviously, most particularly his Atlantic City enterprises, failed. 

In the end, he died poor. He had to sell his art collection – it was a great tragedy. And he had to sell his magazine, so I would not call him a great businessman, but I don’t think he focused on the business. I think he was first and foremost a visionary and an artist, and somebody who cared about the products he was producing, but he didn’t focus as much as he probably should have on the economic aspects of it. 

And let me add one thing. There was one thing that was totally out of character, and I could never understand it. You talked to Bob, and there was never any discussion about sex. There was always discussion about great, great issues. And then you looked at the medallion around his neck. He has a gold chain, and at the end of the gold chain was a gold penis. And I could never understand that. I could understand it on Hugh Hefner. I could understand that on some of the other people in the business, but maybe he just thought it was artistic and beautiful, but I remember saying, “That’s just not what I expected.” It was what I expected before I knew Bob, but once I knew him, it was not what I expected. And I never asked him about it. I probably should have, because I had a close enough friendship with him that I could have asked him that. But I never did.

You were called a “pornocrat” by the late Andrea Dworkin and you were attacked by both the religious right and feminist left for defending pornography. Why did you take those cases?

I took those cases because I thought the First Amendment was in danger from both the right and the left. From the religious right and from the radical feminist left. And pornography is an easy target. But if you begin to compromise the First Amendment over pornography or erotic material, it doesn’t stop there. And so, I thought it was a very important point of principle to defend free speech.

I’ll give you an example, though. I represented the movie called Deep Throat. I never saw it, to this day I’ve never seen it. 

I did that out of principle. I wanted to get up in court and say to the judge or the jury, “Ladies and gentlemen of the jury, Your Honour, this is not about this film. This is about the right of people to decide whether they choose to see this film or not. I have chosen not to see it. Many of you have chosen not to see it. Some of you would choose to see it. In China, you have no choice. They make you watch propaganda. In the United States, the government can’t make you watch a film and can’t tell you not to watch a film. And so, I’m here to defend a film I’ve never seen.” And that worked very well and very effectively.

I’m not a big fan of pornography, and I wasn’t a big fan of how Penthouse, in the end, became more explicit. I found that to myself, it didn’t appeal to my own aesthetic taste. But that’s not what the issue was. I defended Penthouse’s right to publish those visuals, even though I didn’t particularly think it was the right thing, or a good thing to do.

The common argument against pornography is that it’s harmful or exploitative in its portrayal of sex and women. Do you still hold the same position about pornography today as you did then?

As long as it’s adult pornography, and as long as it’s consensual, and as long as the people who pose for it are well paid and well cared for and well treated. I remember having a conversation with a woman who worked for Penthouse. She had previously worked for Condé Nast, which has a very large female audience, and she told me that she was treated much better at Penthouse than she had been at Condé Nast.

I care about the externalities. I do think that some of the portrayals in pornography are demeaning to women, but once you allow that to be a criterion for censorship, there’s no closing that door. And so, on the one hand, you can complain about how women are portrayed, and I will continue to do that. On the other hand, you defend the right of the publisher to make choices about how he wants to portray women. That’s within the spirit and letter of the First Amendment.

I don’t like anti-Semitism, but I defend the right of an anti-Semite to write a book against Jews. That’s the right of every individual. I will respond to the book in the marketplace of ideas, but I will defend the right of the anti-Semite to express his or her negative views. And I did that when I came to the defence of the Nazis who marched through Skokie, Illinois, back in the 1970s. I despised them, I wouldn’t have shed a tear if they had been hit by a truck, but I didn’t want the government to come in and tell people what they can and can’t hear or see. That’s a distinction that I continue to make.

You once said, “Bob Guccione did more for the First Amendment in the 70s and 80s than the Supreme Court.” What did you mean by this?

I wrote about that in my book Taking the Stand. The Supreme Court in the 1970s and 80s was setting back free speech. It was imposing limitations on erotic, obscene, pornographic material. It made it much easier for the states and the Federal Government to prosecute them. We were losing cases in the courts of law, but we were winning them in the court of public opinion.

Eventually, the law caught up with Bob Guccione, rather than the other way around. 

Currently, if you look at Supreme Court decisions, even the ones that are governing today, much of what’s on the internet could be banned, but it’s not. So here we have a situation where the First Amendment was really defined by practice, rather than what a bunch of old judges in robes said.

You’ve been criticised for your choice of clients over the years. What is it about defending the ‘bad guy’ for you? 

Well, it’s so easy to represent good guys. It’s so easy to represent people who are popular. But the essence of the role of a lawyer is to defend the most despised, the most unpopular, the people who even your own friends hate. And people tell me that today all the time, “All right, we understand you’re representing Bob Guccione. We understand you represent OJ Simpson. But Donald Trump? Come on, how can you be saying anything positive about Donald Trump?”. Or I represented Jeffrey Epstein. It never changes. Only the people change.

Nobody likes lawyers. They like you when you represent people who they like, and they hate you when they represent people they don’t like. And they just don’t seem to understand the real role of a lawyer in defending either the First Amendment or defending people who are accused of a crime. You can’t start making distinctions based on who you like and who you don’t like.

I make my own decisions about every single issue, and it creates problems for me, obviously. The other day, I was on Martha’s Vineyard, and a guy came up to me and gave me the finger. And I said, “All right, I get you. But what is the finger for? Is it for Trump? Is it for Epstein? Is it for Israel? I gave him a whole long list of things that he could be giving me the finger for. And he was so embarrassed he walked away. He didn’t know why he was giving me the finger. He just didn’t like me. But there are so many reasons. 

There’s a great novel about a criminal defence lawyer who’s killed. And they can never, ever solve the crime, because there were so many people who were motivated to kill him that there was almost nobody they could exclude. The people he represented and didn’t get a good deal for. The people he represented and got a good result. And so, I feel that way sometimes. If I were ever murdered, there would be a lot of joy in the world from different elements. 

Censorship has most often been associated with – particularly in the past few decades – conservative religious institutions and Reaganite policies surrounding ‘obscenity’. Today the charge is levelled at large social media companies from Silicon Valley, and college campus agitators from the left. Do you think the fight for free speech is now predominantly a conservative cause rather than a liberal one?

Well, it’s a selfish conservative cause. The conservatives are now into protecting free speech if they’re the victims of censorship. When I was growing up, the conservatives were on the forefront of censorship. I was fighting against McCarthyism. Everybody believes in free speech for me but not for thee. And the number of people that actually defend the free speech of everybody – who pass what I call the shoe on the other foot test – are very, very few. And I’m proud to be among them. 

What do you think is Bob’s legacy to the world? 

I think Bob deserves to be regarded as one of the heroes of not only freedom of speech, but of sexual freedom and of understanding the relationship between sexuality and politics. Like many heroes, he was abused during his lifetime and attacked during his lifetime. I hope he will be more fondly remembered by history as somebody who contributed significantly to the freedoms we take for granted today.