Vol. 5, No. 8 (August, 1995) pp. 201-203

FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH by Kent Greenawalt. Princeton: Princeton University Press, 1995. 189 pp.

Reviewed by Paul L. Rosen (Carleton University, Ottawa)

Disquisitions on the general utility of speech and especially reasoned grounds for the expansive construction of the First Amendment, as well as insights into the special circumstances justifying its circumscription, must thread their way carefully through treacherous theoretical minefields. Given the paramount importance of speech rights in a liberal democratic polity, and with the U.S. model growing increasingly conservative, this is by no means an easy task.

With right wing noses disjointed by the flag burning decisions, and with left wing critics and activists pressing for hate propaganda limitations, the Amendment seems shrouded by controversy and commentary which is often emotive and at the same time curiously disciplined. Greenawalt, despite all these difficulties, displays an unerring sense of the logical course around explosive ideological snares, and provides the reader with a vivid and detailed map for navigating the Court's speech jurisprudence, heavy on rules and tests, and somewhat short on an objective vision of how the speech provision meshes with the principle of equality, or for that matter, the Amendment's collateral establishment clause.

This work proceeds by integrating four earlier lectures into a splendid tapestry that covers flag burning (symbolic speech), hate speech and campus codes, workplace equity, obscenity, campaign finance and suppression of abortion advice. Comparative insight is gained with some reference to the Canadian constitutional landscape and specifically the treatment by the Supreme Court of the troublesome questions of hate propaganda and obscenity. Finally, the discussion is framed with a concluding chapter analyzing communitarian and individualistic approaches to these knotty issues.

Greenawalt, a Columbia Professor of law, handles effortlessly the evolving and occasionally tortuous rule matrix that has characterized First Amendment jurisprudence from its early twentieth century beginning. In highlighting the substantial interest test, (U.S. V. O'BRIEN) the author hints at the inability of make shift rules, particularly in volatile fact situations (draft card burning), to substitute for political prudence and judgment. The Court in this 1968 case evaded the putative speech issue and its manifold ramifications, as it had done earlier with obscenity, and would do later with workplace discrimination and in a different fashion with cross burning, by simply mandating that the disputed statute was one that addressed a concern quite separate from the cardinal principle of speech or expression.

Similarly, the question of harassing workplace speech could be side stepped by focusing instead on the problem of discrimination and the demand for equality. On the other hand, in the defense of speech rights in R.A.V. V. ST. PAUL, (1992), Justice Scalia in a content rule elaboration of the Amendment, emasculated the concept of fighting words by arguing myopically that their significance could be understood as a

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mode of address rather than verbal vessels replete with explosive oral missiles.

Accordingly, if there is a moment of revealing truth in the overall sea of manipulative legal logic, it came in 1964 (JACOBELLIS V. OHIO), when Justice Stewart conceded the near impossibility of a viable definition of pornography, and retreated candidly instead to intuition, "I know it when I see it."

The Canadian Supreme Court in dealing with obscenity and more extensively with hate propaganda, speech offenses punishable under the federal criminal code, has been able to grapple with the core speech issue in a more forthright way than its American counterpart. The Canadian Charter of Rights and Freedom is a modern document having been adopted only in 1982. As Greenawalt points out, for this reason the Court is less encumbered by meandering precedent, and as a result enjoys more leeway in applying the speech provision (2b). More importantly, the Court may simultaneously find that a statute breeches speech rights guaranteed by the Charter, but still leave the offending law intact under section one, which circumscribes the protective ambit of the document "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In other words, Canada possesses an integral O'Brien test which relieves the Court of the arduous charade of splitting legal hairs in order to fashion a patchwork of operative and sometimes philosophically queasy rules to fit the political climate of the day.

Greenawalt notes the multicultural character of Canadian society and its leftist group orientation, so different from the emphasis on individualism in the United States, that buttresses the Canadian Court in upholding speech restrictions which mutatis mutandis would be dead letters before the ink dried in the democracy to the south. He fails to mention several provisions which make group rights a main Charter plank, in particular section 27 which directs that, "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."

It would be hard to imagine a parallel amendment instructing the U.S. Supreme Court on how to interpret all ambiguous constitutional language by now well worn and wrenched in so many different directions. Since the Canadian Court and case record on speech diverges vividly with the First Amendment experience, it comes as a mild surprise that Greenawalt finds refreshing elements in the Charter even with the risk it poses of further speech limitations -- "It is hard not to be attracted by the flexible and intelligent evaluation of the Canadian Supreme Court; that seems so much more sensible than the categorical boxes and blindness to nuance[s] of dominant American approaches." (p. 123).

While speech rights in the two countries differ markedly, there may be a juridical movement towards convergence, despite the institutional forces that act to sustain them. In this light, already in 1992 the false news provision of the hate speech section of the criminal code was invalidated (R. V. ZUNDEL), though this case cannot be

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said confidently to portend any definite trend. Greenawalt, however, does see on the part of the U.S. Supreme Court, a certain genuflection towards statism. He cites the refusal of the Court in 1986 to permit native Americans to use peyote in their religious ceremonies (EMPLOYMENT DIVISION V. SMITH), and the 1991 abortion gag decision (RUST V. SULLIVAN), as illustrative. Certainly, the action of the Court this June to uphold a thirty day moratorium on solicitations by "ambulance chasers," (FLORIDA BAR V. WENT FOR IT), and a decision which in effect ordered a state in the name of free speech to violate the establishment clause, (ROSENBERGER V. UNIVERSITY OF VIRGINIA), provides additional material for reflection along these lines.

That the judicial construction of speech rights is an uncertain and frequently arbitrary art, is made amply clear by this finely crafted book. Both Courts must contend with political pressures, and the recent House passage of a flag desecration amendment, shows there is no likely relief in sight. Free speech jurisprudence, as important, vital and eloquent as it may be, sometimes resonates with strained and insensitive reasoning. Greenawalt critiques the higher and lower tones of this constitutional dialogue, with skill and discernment.

REFERENCES:

EMPLOYMENT DIVISION V. SMITH, 495 U.S. 872 (1990)

FLORIDA BAR V. WENT FOR IT, SLIP, JUNE 1995

JACOBELLIS V. OHIO, 178 7.S. 184, 197 (1964)

R.A.V. V. ST. PAUL, 112 S. CT. 2538 (1992)

ROSENBERGER V. UNIVERSITY OF VIRGINIA, SLIP, JUNE 1995

RUST V. SULLIVAN, 500 U.S. 173 (1991)

U.S. V. O'BRIEN, 391 U.S. 367 (1968)

ZUNDEL V. R. (1992) 2 S.C.R. 731