VOL. 6 NO. 6 (June , 1996) pp. 105-108.
FREEING THE FIRST AMENDMENT: CRITICAL PERSPECTIVES ON FREEDOM OF
EXPRESSION by David S. Allen and Robert Jensen (Editors). New
York University Press, 1995. 288pp. Cloth $50.00. Paper $18.50.
Reviewed by Donald W. Crowley (University of Idaho).
This volume of 14 rather disparate essays suggests that the First
Amendment needs to be freed. From what? While the answer still
won't be clear after reading the book, the essays are loosely
united by the view that our understanding of the First Amendment
needs to be freed from a prevailing liberal orthodoxy.
The notion that there is a liberal orthodoxy that dominates
academia, law schools, and the judicial systems runs more or less
through entire book. This view is most directly stated by
Frederick Schauer in the second essay where he claims that within
academia the ideology that more speech is better prevails and
that this is true despite the fact that the U.S. already allows
for more free speech than any other country (p.13). Schauer
further argues that despite the devotion of academia to freedom
of speech very little attention is paid to justifying this
position. Thus, in academic domains there seems to be
"little free thought about free thought, little free inquiry
about free inquiry, and little free speech about free
speech" (p.13).
If Schauer is right then this volume is certainly needed since it
subjects the First Amendment doctrine to a dizzying array of
criticisms. However given the multitude of critiques easily found
in law journals and other scholarly works, it is far from clear
that there is a liberal orthodoxy in academia or anywhere else
that non-reflectively supports the need for greater free speech.
The essays in this volume certainly add to our appreciation of
the tensions, problems and shortcomings in First Amendment
theory. Still, if one reads these essays hoping to find a
coherent theory of what the First Amendment should mean in modern
America one is likely to be disappointed.
Virtually all of the essays share the notion that there is
something wrong with our current understanding of free speech.
However, several essays advocate vast expansions of the
protection offered by the First Amendment by applying the free
speech rights to the workplace. Others call for a shrinking of
current protections emphasizing the alleged harm caused by some
types of speech (hate speech, pornography) and the manner in
which such speech actually serves to silence some voices. A third
concern raised by many of the essays is the need to
reconceptualize the First Amendment in terms of providing greater
protection for speech that furthers public dialog and democratic
participation.
Two essays, one by Thomas Street and another by Victoria Smith
Holden argue that in some fundamental sense the First Amendment's
protection for free speech misses a major part of what concerns
working men and women due to its failure to reach the workplace.
Streeter argues that formalistic legal approaches to free speech
with its emphasis on speech-action distinctions and
content-neutral regulations has been indifferent or at least
insensitive to context and power relations and thus offers
"symbolic protection to soap boxes while in practice
protecting media corporations much more effectively that
dissidents" (p.46). Addressing such concerns Victoria Smith
Holden argues for an expansion of free speech doctrine to
workplaces while Cass Sunstein advocates a new deal for speech
which would allow greater government regulation of media giants
in the interests of furthering democratic debate. Holden's view
would seem to require significant revisions in our understanding
of constitutional law by altering the state action doctrine but
Holden argues more creatively for a new application of the
Thirteenth Amendment. "Expansion of the Thirteenth Amendment
to cover basic labor rights, such as free speech...could come
through an incorporation process such as has occurred with the
Fourteenth Amendment." In an era where decrying judicial
activism (at least liberal judicial activism) is dominant, it is
hard to imagine under what circumstances such a suggestion would
be taken seriously.
More plausible is the appeal of Cass Sunstein to rethink our
understanding of free speech as it applies to government
licensing and regulation of broadcasting. Sunstein suggests that
"government regulation of speech might, in some
circumstances, promote free speech, and should not be treated as
abridgment at all" (p.55). Sunstein argues that broadcasters
are "given property rights in their licenses by government,
and the grant of such rights is unambiguously state action"
(p.59). The ability of "enormous institutions having huge
resources" to obtain such rights allows them to dominate
communication and thus effectively silence other voices (p.58).
Sunstein's argument suggests a type of positive right of access,
or at least a positive obligation of government to regulate in
the broader interests of promoting a democratic polity. However,
since Sunstein's view of regulation would not allow for
viewpoint-discrimination, his approach would adhere to
significant parts of current doctrine. David Allen's essay poses
a more serious threat to current understanding. His argument is
that the First Amendment should be aimed at creating an active
public but an informed one. Sharing Sunstein's and Streeter's
concern with elite institutions dominating citizen participation
, Allen claims that prevailing liberal theory is more concerned
with "educating citizens so that they might be able to
indirectly participate in democracy" (p.99) instead of
allowing the space in which citizens can become active
participants in the life of the community. Allen argues that by
framing the First Amendment debate in terms of a speech-conduct
dichotomy the Supreme Court has aided in the creating of an
inactive citizenry. Allen's societal critique has merit, but it
isn't obvious that the Supreme Court's speech-action dichotomy
has played much of a role in creating an inactive citizenry. Like
Holden, I would think more would be gained by expanding free
speech claims to areas of social life heretofore unprotected.
A vastly different line of criticism emerges from at least three
of the other essays. These essays, in differing degrees, argue
that prevailing definitions of harm need to be reconsidered. In
separate essays Owen Fiss and Robin Barnes attack the Court's
view of hate speech that emerges from the 1992 R.A.V. V. CITY OF
ST. PAUL decisions. The Court ruled against the St. Paul hate
speech ordinance on the grounds that it tended to favor one side
of the debate by prohibiting some types of "fighting
words" while allowing others. Fiss suggests that the Court
should allow such laws if they serve to prohibit speech that
interferes with the speech rights of others and "discourages
them from participating in the deliberative activities of
society" (p.85). This approach would require an analysis of
the context to determine whether the speech being regulated
actually had a "silencing effect" (p.87).
Robin Barnes articulates the conflict between equality norms and
liberty norms more starkly in stating that "Racist hate
speech activity in public fora not only promotes harassment and
intimidation, but jeopardizes safety, feeds the collective
frustrations of the community, and thwarts prospects for
meaningful initiatives toward open and productive dialogue by
lowering the quality of public discourse" (p.260). In this
light, Barnes would adhere to the Court's (1969) decision in
BRANDENBURG V. OHIO but reach opposite results in R.A.V. and the
Skokie case.
Pushing the potential silencing effects of harmful speech
further, Robert Jensen and Elvia Arriola argue that we should
reject the notion hat speech deserves greater protection than
other forms of behavior (p. 210). Their version of feminism
suggests that free speech doctrine must be concerned about more
than the absence of governmental restraints, but also about
"oppressed people being free from the communication of
others that harms them, both directly and indirectly..."
(p.213). "This involves restraints on both public and
private power to help prevent harm and the positive use of public
power to help people find a voice: (p.213). Their essay doesn't
provide an analysis of harm nor provide a sense for how
government might help give people a voice.
Curiously, the essay which comes closest to defending traditional
approaches to the First Amendment comes the perspective of
another oppressed group, lesbians and gay men. Paul Siegel
provides a note of caution to those anxious to endorse
"First Amendment revisionism" by claiming that gay
groups have been most likely to prevail when they can offer
"a clear and plausible argument based on traditionally
accepted First Amendment principles" (p.225). Siegel even
suggests restraint in shrinking the state action doctrine, lest
the price paid for allowing gay marchers in the St. Patrick's Day
parade is religious fundamentalist participation in gay rights
events (p.236).
As a whole these essays don't add up to a coherent case against
traditional approaches to analyzing the First Amendment. Cass
Sunstein's desire to reconsider the role of government regulation
in the broadcasting industry could be accomplished, with the help
of Congress, with little damage to traditional First Amendment
doctrine. The objection to such regulations is less likely to
come from the liberal orthodoxy decried by Schauer than by
defenders of property rights. More problematic is the tension
between the goal of equality and the goal of free expression
which is most sharply drawn by the conflict over hate speech
codes. Even here Justice Scalia's understanding of the
"fighting words doctrine" leaves room for restriction
of hate speech. Perhaps Fiss is right and the fighting words
doctrine needs to be reevaluated in light of whether the speech
in question "has a silencing effect" Such an approach
would not be consistent with absolutist interpretations of the
Amendment but the convoluted combinations of balancing and
assorted versions of clear and present danger that have typically
dominated Supreme Court decision making could well make room for
such considerations.
Whether such a move would be beneficial is a more difficult
question. The marketplace of ideas metaphor is clearly an
imperfect one, but it can serve to remind us that regulation of
speech may not have the results we desire. The final essay in
this collection suggests that we can't make up our mind whether
words are powerful or powerless. This, I believe, misstates the
issue. Word are clearly potentially powerful, but do we make them
less powerful by seeking to punish those who use words that harm
us? Ultimately we render them less powerful by finding the voice
to counter them.
References:
BRANDENBURG V. OHIO, 395 U.S. 444 (1969).
NATIONAL SOCIALIST PARTY OF AMERICA V. SKOKIE, 432 U.S. 43
(1977).
R.A.V. V. CITY OF ST. PAUL, 505 U.S. ____ (slip opinion) 1992.
Copyright 1996