I authored a short review of the two books listed below. The review appears in the current issue of the Political Science Quarterly.
- Free Speech Beyond Words: The Surprising Reach of the First Amendment by Mark V. Tushnet, Alan K. Chen, and Joseph Blocher. New York, New York University Press, 2017. 272 pp.$28.00.
- The Taming of Free Speech:America’s Civil Liberties Compromise by Laura Weinrib. Cambridge, MA, Harvard University Press,2016. 480 pp. $45.00.
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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