Vol. 10 No. 1 (January 2000) pp. 78-79.

FREEDOM OF SPEECH AND ITS LIMITS by Wojciech Sadurski. London: Kluwer Academic Publishers, 1999. 240 pp.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University.

Wojciech Sadurski states that the purpose of this book is "to place the arguments about legal restrictions of speech in a framework that facilitates legal reasoning about rights, and thus displays 'sufficient sensitivity to freedom of expression'" (p. 2). Specifically, he is concerned with assessing the validity of the various defenses of free expression that "exempt it from the ordinary operation of a harm calculus" (p. 2).

To explore legal restrictions on speech, Sadurski develops an analysis of hate speech both as an example of a discriminatory message and as an act of discrimination itself. He gets to this point by discussing broadly the Justifications of Freedom of Speech" in chapter 1 and assessing the harmful impact that speech may have in Chapter 2. Chapters 3 (Speech and Equality) and 4 (Discrimination and Illocutionary Acts) form the core of Sadurski'sanalysis. Here, he suggests that the impact of hate speech qua a discriminatory action might actually justify exempting it from the protections afforded the rest of speech.

In Chapter 5 (Viewpoint Neutrality and its Rationales), he casts key distinction between a valid and invalid restriction on speech in terms of the difference between those based on "paternalism" and those based on "intolerance." Thus, a paternalism-based restriction would be formally content neutral and based on some conception of the public good. Such a restriction would entail, perhaps, a restriction on the publication on government secrets or scientific knowledge such as how to construct an atomic bomb. In contrast, a restriction based on intolerance would involve the suppression some elements of a genre of speech but not others.

Sadurski says that paternalistic, subject-matter regulations are less objectionable than intolerant content or viewpoint regulations because 1) viewpoint- and subject matter-restrictions can be distinguished, 2) the latter tend to be paternalistic (and therefore more tolerable) than the former (which are more likely to be intolerant), and 3) that paternalism is less objectionable than intolerance (p. 177). Although acknowledging that these principles are not unassailable, they "illuminate" the force behind viewpoint neutrality as " a major regulative principle of freedom of speech."Of course, a restriction's intolerance or paternalism is certainly in the eye of the beholder. Sadurski acknowledges that this distinction between restricting content and restricting a viewpoint hinges upon the level of generality of one's approach to a speech-restriction controversy. Thus, in his analysis of UNITED STATES v. KOKINDA (1990), in which the U. S. Supreme Court sustained a ban on soliciting for money on the sidewalk outside of a post office, he notes

Page 79 begins here

that the divisions in the Court turned on whether a given Justice perceived the restriction as a content-neutral "time, place and manner" restriction or an attempt to prevent particular groups from expressing unpopular opinions.

In his concluding chapter, Sadurski essentially reviews the earlier parts of the book by discussing the various arguments that could be made in favor of or against restrictions on hate speech. Acknowledging that hate speech does inflict a psychic harm, he concludes that the one sound basis for restricting hate speech would be to take the communitarian -- as opposed to the liberal -- approach to individual liberty. This approach would protect individuals from the "psychic" harms that they might suffer from the vilification of their group. Nonetheless, he ends abruptly by rejecting the communitarian approach in favor of the individual freedoms that accompany the liberal approach to society.

Overall, the book is disappointing. The nature of Sadurski's intended audience is not at all clear. He makes some interesting points about content neutrality (paternalism v. intolerance) and offers some thoughtful responses to the arguments made by various justices in Supreme Court decisions in the United States. Especially, he offers an in-depth analysis of the Supreme Court decisions in R. A. V. v. ST. PAUL (1992), ROSENBERGER v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA (1995), and LAMB'S CHAPEL v. CENTER MORICHES UNION FREE SCHOOL DISTRICT (1993). However, the level of analysis is both too general and too specific. His discussion of the facts of these cases is not sufficiently detailed to convey the intricacies of American First Amendment law to a newcomer to the field. As a result, his responses to and criticism of the various justices' opinions are rendered somewhat abstract--despite their careful development--because he does not clearly develop the context in which the cases arose and the opinions were written. The book offers little in the way of new perspectives or contributions to the debate about free speech and the justifications suggested for various restrictions that might be imposed on it. The book would be much more useful with a better, more thorough discussion of the highlighted cases. Although Sadurski offers fair and reasonable criticisms of the diverse points of view concerning speech restrictions, one can find many other equally compelling discussions accompanied by better discussions of particular cases. In sum, FREEDOM OF SPEECH AND ITS LIMITS would be useful to a student making a first inquiry into the subject. However the student might return to the stacks after reading this book to seek out a more comprehensive discussion of speech law.

CASE REFERENCES:

LAMB'S CHAPEL v. CENTER MORICHES UNION FREE SCHOOL DISTRICT, 508 U.S. 384 (1993).

R. A. V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).

ROSENBERGER v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, 515 U.S 819 (1995).

UNITED STATES V. KOKINDA, 497 U.S. 720 (1990).