Vol. 13 No. 6 (June 2003)

FREEDOM OF SPEECH: RIGHTS AND LIBERTIES UNDER THE LAW by Ken I. Kersch.  Santa Barbara, California: ABC-CLIO, 2003.  393pp.  Cloth $55.00.   ISBN:  1-57607-600-8.

Reviewed by Mark C. Miller, Associate Professor and Chair, Department of Government, Clark University.

FREEDOM OF SPEECH: RIGHTS AND LIBERTIES UNDER THE LAW discusses the U.S. constitutional principle of freedom of speech from an historical and theoretical point of view.  It briefly mentions some U.S. Supreme Court cases dealing with the First Amendment, but those judicial opinions are clearly not the main focus of the book.  Kersch treats freedom of speech and freedom of the press cases as interchangeable.  The book’s historical analysis of the concept is strong, although the discussion of contemporary freedom of speech issues is much weaker.

The book is divided into six chapters, including one that consists of an annotated glossary of key terms, and another that contains key excerpts of various commentaries and some judicial opinions on the principle of freedom of speech.   There is very little linkage between the first four chapters and the glossary or the excerpts of opinions and commentaries.  The textual chapters cover the first 182 pages of the book, while the glossary and the commentaries add another 200 pages.  The commentaries range from John Milton to Emma Goldman and the opinion excerpts are from significant U.S. Supreme Court speech cases.

In the first chapter Kersch provides an interesting discussion of theoretical arguments against government regulation of speech, as well as some of the arguments in favor of regulating speech.  The second chapter examines free speech principles in England and in the American colonies.  While its primary focus is the early period, the chapter does also include some of the debates from the latter part of the 19^th century.  The third chapter looks at free speech issues in the 20^th century.  Finally, Kersch attempts to highlight some of the speech issues likely to arise in the future in Chapter Four.

While I found the author’s historical analysis to be generally useful and interesting, I was disappointed with his discussion of free speech issues after the 1960s.   Indeed, the treatment of contemporary free speech debates tends to be overly simplistic.  Although I certainly agree with the author’s strong civil libertarian bias on these issues, I was troubled by the book’s dismissal of all contemporary arguments in favor of regulating speech as either mere political correctness or rooted in an irrational fear of terrorism.  The book needed to do more to differentiate the attacks on freedom of speech from both the right and the left, and to explain the political and theoretical justifications for these attacks on free speech.  For example, the question of whether the government should regulate pornography is very different from the question of whether tobacco companies should be able to advertise their products.  Yet the author lumps many of these contemporary debates together under the umbrella of political correctness.

It would have been useful to consider the need to balance rights, such as with the question of whether anti-abortion protestors should be allowed to intimidate women and doctors as they enter abortion clinics—but Kersch presents no such discussion.  There is also very little evaluation of the Supreme Court’s protection of hate speech, while simultaneously allowing increased sentences for hate-motivated crimes.  In addition, the book presents almost no discussion of flag burning or other forms of symbolic expression.  And, Kersch makes little effort to examine the jurisprudential views of First Amendment issues among the current justices on the U.S. Supreme Court or how they differ.

Thus the book provides a nice historical overview of free expression questions, but it leaves me wanting a much more sophisticated exploration of the current and future issues surrounding speech under our Constitution.  I found the first three chapters of the book to be quite useful, but wanted more from the rest of the book.  I would have liked a more detailed examination of recent Supreme Court cases, and the historical analysis should have been clearly linked to the glossary and commentaries which follow.  The target audience is not clear, but parts of the book could be useful for introductory undergraduate students.  Given the price, I would expect more.

*********************************************************************
Copyright 2003 by the author, Mark C. Miller.