Tagged: Book Review

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Grand Theories & the Path to Censorship: Book Review of “Free Speech Beyond Words” and “The Taming of Free Speech”

I authored a short review of the two books listed below. The review appears in the current issue of the Political Science Quarterly.

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First contention: Attempts to make the First Amendment safe frequently produce censorship. Take risk out of the jurisprudential equation, and little liberty is left. Oliver Wendell Holmes Jr. tagged it an “experiment,” this business of reconciling freedom with security. But experiments sometimes fail, which points back to risk. If one does not consent to these terms of our constitutional compact, then no freedom worth preserving will emerge. Or, to put it more cavalierly: yes, sometimes the Bill of Rights can be like a suicide pact—Justice Robert Jackson’s 1949 admonition in Terminiello v. City of Chicago (337 U.S. 1) notwithstanding, which returns us to Holmes’s Darwinian experiment.

Second contention: Theories of free speech, especially those of the “elevated” or “righteous” kind, lead inescapably to censorship. Take a canonical BIG NORM (for example, truth in the marketplace, self-realization, or democratic participation), link it to the First Amendment, and what inevitably follows is freedom cabined. Know this: the moral reformist and the progressive activist are censorial fellow travelers. Free-speech freedom must stand on its own legs, unfettered by intolerant ideological interventionists.

That conceptual frameworkprovides oneway to gaugemuchofwhatpasses as free-speech theorizing in modern America. Mind you, one need not accept that framework in order to appreciate several of the varied insights offered up in the two important books reviewed here. Moreover, the four authors of the two books under consideration urge us to consider a fundamental question—namely, how should we think about the First Amendment and our free-speech freedoms?

One book (Free Speech Beyond Words) invites us to think—and think hard—about why we protect “speech” that is not literally speech. The other book (The Taming of Free Speech) urges us to think—and think passionately—about the First Amendment as a weapon of the powerless to oppose the powerful.

The first book explains and challenges the existing premises underlying the reasons why some forms of expression (for example, art, music, and “nonsense”) are covered as “speech” under the First Amendment. The other book uses the “right of agitation” (correctly defined, of course) as the benchmark for protected expression.

Free Speech Beyond Words is more philosophical (that is, probative), whereas The Taming of Free Speech is more political and (selectively) historical. With analytical rigor, Mark V. Tushnet, Alan K. Chen, and Joseph Blocher fill diverse forms of expression into assorted doctrinal boxes to avoid reaching the right judicial result for the wrong reasons.

Laura Weinrib’s book, by stark contrast, reveals how a single-concept form of First Amendment jurisprudence (of the liberal left variety) proves the truth of the dangers flagged in my two contentions.

Apparently, the author of The Taming of Free Speech  would consider the following statement heretical: “We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.” Thus did Roger Baldwin (1884–1981) of the American Civil Liberties Union (ACLU) view things in 1939. By Weinrib’s measure, that is what is wrong with our free-speech jurisprudence and the modern ACLU’s defense (sometimes incomplete) of it. The powerless (not the powerful), workers (not employers), and individuals (not corporations) deserve First Amendment protection . . . or so her history of the First Amendment would have us believe. While there is more than a dollop of truth here, her jurisprudential key would cabin much of the free-speech freedom we enjoy today, and this in furtherance of Weinrib’s class-based Industrial Workers of the World–like understanding of the First Amendment.

David Cole, the ACLU’s national legal director, is understandably doubtful: “a conception of speech rights that turns on assessments of which views advance the interests of the weak over the strong, or of whether the marketplace of ideas is skewed by inequality, risks giving state officials the power to censor views they disfavor” (New York Review of Books, 23 March 2017).

In the “Going Further” portion of their work, the authors of Free Speech Beyond Words turn to still other forms of expression that are not literally “speech” in order to discern some stopping point to prevent tagging everything speech—for example, from artistic and erotic dance to sports and culinary arts to the digital collection and dissemination of data. Do such forms of expression qualify for coverage under the First Amendment? If so, why? Surely, and as the authors correctly reveal, it cannot be on account of such conceptual touchstones such as the marketplace of ideas or the “checking function” theories of free speech. Good theories, bad applications. To help resolve a given issue, the authors test drive assorted free-speech theories to see how they work in the context of a given form of expression. The problem: this back-and forth form of analysis is indeterminate, as revealed in their examination of data collection and dissemination, which discusses at least three different and sometimes incompatible theories but finds no resolution short of micro case-by-case analysis. Another challenge: have the authors identified all of the applicable theories or only the traditional lineup of hierarchical theories? If not, those problems associated with my second contention might well loom large.

It is true: our First Amendment jurisprudence needs astute thinkers like Professors Tushnet, Chen, and Blocher to get us to reconsider where we have been, where we may be tending, and why.

And what of Professor Weinrib? Yes, there is welcome room for her (and the likes of Steve Shiffrin and his What’s Wrong with the First Amendment) in our grand debate parlor. For what kind of robust First Amendment would we have if not for doctrinal agitators who rail against our “overprotective” free speech jurisprudence?

In the end, one lesson to be gleaned from both of these fine books is that a vibrant First Amendment culture requires a demanding degree of openmindedness.

Take heed!

RONALD K.L. COLLINS , University of Washington, School of Law

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FAN 71 (First Amendment News) Just Released: 2nd ed. of Cogan’s “The Complete Bill of Rights” — 30 New Pages on History of Press & Assembly Clauses

This book is an invaluable resource for constitutional scholars, teachers, litigators, and judges alike. It collects and collates the basic texts necessary for informed interpretation of the Bill of Rights and gives them to researchers in a compact, comprehensive, and reliable form that is wonderfully organized for both quick scanning and sustained critical analysis. It makes previously difficult research tasks easy and opens new lines of thinking at a glance.– Anthony G. Amsterdam (2015)

41lkMJ+mUtL._SX348_BO1,204,203,200_The second edition of Professor Neil Cogan’s monumental The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins (Oxford University Press) has just been released. Get out your wallet, for this book is well worth the $185.00 list price. Really!

Here is what Floyd Abrams said of the first edition: “For anyone interested in our Constitution, our history, or our political theory, this book is an intellectual treasure chest. It is more than legislative history. It is constitution-drafting in the raw — all the proposals and all the give-and-take (some of it disturbing) that resulted in the adoption of the Bill of Rights.” The historian Stanley Katz referred to it as “a major occasion in American publishing. . . . This is a triumph of careful and thoughtful scholarship. It is now one of the essential components of the the library of constitutionalism.” Though it is hard to imagine, Cogan’s second edition is even better and more triumphant!

 The second edition (1362 pp.) almost doubles the first edition (705 pp.) in length by adding, among other things, lengthy excerpts from the treatises and dictionaries familiar to judges and lawyers in the 1780s. (Note: the pages in the new edition are also longer and its margins are narrower.)

In the First Amendment section — other than in the religion clauses segments which total 146 pages — new materials were added to the Press Clause segment and to the Assembly Clause segment. The majority of the newly added materials in those areas appears in the Press Clause segment (five new entries: Bacon, Burn, Cunningham, Jacob, and Viner) and one new entry for the Assembly Clause segment (Burn). The new sources materials for those segments of second edition of The Complete Bill of Rights are listed below:

  1. Matthew Bacon, A New Abridgment of the Law (London (Savoy): E. & R. Nutt & R. Gosling, 1736) [NB: hyperlink is to a later edition]
  2. Richard Burn, Justice of the Peace & Parish Officer (London: Ho. Woodfall & W. Strahan, 10th ed., 1776) [NB: hyperlink is to a later edition]
  3. T. Cunningham, A New And Complete Law-Dictionary (London: Law Printers to the King, 1764, 1765) (Adams Library)
  4. Giles Jacob, The New-Law Dictionary (London (Savoy): Henry Lintot, 1743) (Adams Library) [NB: hyperlink is to an earlier edition]
  5. Charles Viner, A General Abridgment of Law and Equity (London, 1742) (Adams Library)

In the Press Clause segment, the 27 pages of new materials (pp.  182-208) consist of definitions and discussions of defamation:

  • What is it?
  • What amounts to a libel?
  • How much certainty is required?
  • Can statements made in court amount to defamation?
  • Who qualifies as a libeler?
  • What constitutes publishing?
  • What matters are for a judge or jury to decide?, and
  • What  punishment (civil and/or criminal), if any, is appropriate?

Beyond this, there is also an entry from Richard Burn’s treatise concerning religious and civil laws regulating swearing (pp. 206-208)

The new entry concerning the Assembly Clause (pp. 254-61) segment consists of seven pages (also from Richard Burn’s treatise). Those pages largely concern definitional and related questions, which are divided into the following six subcategories:

I.    “What is a riot, rout, or unlawful assembly”?

II.   “How the same may be restrained by a private person.” [re common law powers to suppress a riot]

III.  “How by a constable, or by other peace officer.” [re common law powers to suppress a riot]

IV.  “How by one justice.” [re statutory powers of a justice of the peace to restrain, arrest, chastise or punish.]

V.    “How by two justices.”  [re statutory powers of two or three justices of the peace to use “the power of the country” or that of the sheriff to enforce an order re a riot or unlawful assembly]

VI.  “How by a process out of chancery.” [re statutory powers of chancery court to inquire into the truth of any complaint brought by an aggrieved party].

Professor Neil Cogan

Professor Neil Cogan

Whatever one thinks of textualism and/or historicism, Professor Cogan has performed a great public service in bringing into sharper focus the historical backdrop of the Bill of Rights. In a 1993 letter to Cogan, the late Gerald Gunther tagged the first edition as a “very valuable book” and a “marvelous collection” of historical documents. (Cynthia Cotts, “A Dean’s Book on Bill of Rights Scores with Supremes, Scholar,” National Law Journal, Nov. 24, 1997). For those who knew Gerry Gunther, he was not one to offer exaggerated or unmerited praise. That said, he was too modest in his assessment of The Complete Bill of Rights. Then again, perhaps he knew better than most that superlatives may sometimes devalue the true worth of a great work. In that spirit, nothing much need be added other than this: The second edition of The Complete Bill of Rights is even more “valuable” than the first.    

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Barbara Babcock reviews new book on Ruth Bader Ginsburg

Professor Barbara Babcock

Professor Barbara Babcock

Over at SCOTUSblog, Standford Law Professor Emerita Barbara Babcock has a book review of Scott Dodson’s new The Legacy of Ruth Bader GinsburgCambridge University Press, 2015 (336 pp., cloth, $29.99), which he edited.

Babcock’s review is titled “Law Professor, Feminist, and Jurist” and draws on some of her own history with RBG.

As you may recall, in an earlier post on this blog Danielle Citron also wrote about Justice Ginsburg and the collection of essays in the Dodson volume.

In case you missed it, take a look at Gail Collins’ recent column in the New York Times titled “The Unsinkable R.B.G.”

(In the interest of full disclosure, I also serve as the book editor for SCOTUSblog.)