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Book Review: Freedom and its Excesses
posted by Ronald K.L. Collins
Free Speech: A Very Short Introduction by Nigel Warburton. Oxford University Press, 2009, pp. 115. Paper: $11.95.
What do you get with freedom? Excesses! Exploitation! And what does one say to that? A small price to pay. . . Without free communication . . . we don’t have a free society.
– Hugh Hefner
Shortly before he became the darling of liberals, Justice Oliver Wendell Holmes first defended and then cabined the principle of free expression: “The First Amendment,” he wrote, “prohibit[s] legislation against free speech.” But then, as he continued his thought, he stressed the obvious: it was not “intended to give immunity for every possible use of language.” It’s an old saw, one Holmes invoked in his cramped opinion in Frohwerk v. United States (1919). “A little breath” of the wrong kind of expression, he added, “would be enough to kindle a flame.” Result: First Amendment claim denied.
To defend freedom, one must be a risk-taker. To recast it in metaphoric vernacular, one must be willing to let a few fires burn. In the end, those who would protect free speech must be prepared to defend its excesses. For example, under our federal and state constitutions, some kinds of hurtful, disruptive, and hateful speech are protected. So, too, is blasphemous speech as well as many kinds of generally offensive speech, “worthless” and “mindless” speech, and even certain kinds of sexual expression, even when lewd and exploitative.
Like it or not, that is the creed of modern America’s law of free speech. It is a creed of libertarian-like toleration, one grounded in an idea that not even Voltaire ever expressly defended, if only because he never said “I despise what you say, but will defend to the death your right to say it.” (Apparently, Evelyn Beatrice Hall coined the phrase in a 1906 work on Voltaire.)
But Nigel Warburton, a philosopher at the Open University based in the U.K., appears willing to openly champion what old Voltaire never did. “Freedom of speech is worth defending vigorously,” he writes in Free Speech: A Very Short Introduction, “even when you hate what is being spoken.” So just how far is he prepared to go? Metaphorically put, how many fires will he let burn in the name of this beloved principle?
March 4, 2010 at 9:49 pm
Posted in: Book Reviews, Constitutional Law, First Amendment
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Book Review: The Universal First Amendment – Bold Ideas for Press Freedom in a Global Era
posted by Ronald K.L. Collins
Uninhibited, Robust and Wide-Open: A Press for a New Century by Lee C. Bollinger. Oxford University Press, 2010, pp. 210. Cloth: $21.95.
Thirty or so years ago I had the honor of working with Robert Maynard Hutchins (then at the Center for the Study of Democratic Institutions) to help organize a two-day conference on constitutional law. Hutchins knew all of the luminaries of the day and invited notables such as Charles Black, Henry Steele Commager, Max Lerner, Louis Pollak, Ruth Bader Ginsburg, Laurence Tribe, Jesse Choper, and Charles Wyzanski. He turned to me, then a recent law graduate, to help identify some of the “up and coming players” in constitutional law – people who would “make a name for themselves and leave a mark on the law.” Happily, I obliged him and recommended, among others, Steve Shiffrin (UCLA) and C. Edwin Baker (Oregon). Oh, there was one other person I recommended; he was then an associate professor at the University of Michigan – Lee Carroll Bollinger.
Back then, in a cogent essay entitled “Elitism, The Masses & the Idea of Self-Government” (published in Constitutional Government in America), Professor Bollinger expressed concern about the “‘central meaning of the First Amendment,’” particularly as it pertained to broadcast regulation. Since then he has revisited that general concern, in one way or another, in a variety of thoughtful works such as The Tolerant Society (1986), Images of a Free Press (1991), and Eternally Vigilant (2002) co-edited with Geoffrey R. Stone. Now, with the recent publication of Uninhibited, Robust and Wide-Open, Lee Bollinger (president of Columbia) returns, yet again, to the grand optimism expressed by Justice William Brennan in New York Times Co. v. Sullivan (1964), from which the title of his latest book derives.
The book is the eighth installment in Oxford’s Inalienable Rights Series edited by Professor Stone. Bollinger is a sensible pick given his background as an esteemed First Amendment scholar and as a university president whose toleration has been tested by both campus free speech protestors (see NYT, Oct. 22, ‘06) and by critics outraged by his willingness to allow Iran’s president to speak at Columbia (see WSJ, Sept. 24, ‘07). He also serves as a director of the Washington Post Company. All in all, Bollinger brings both idealism and pragmatism to his project. As the book’s title suggests, his hope is to infuse the spirit of the former into the realities of the latter. Professor Bollinger thus invites his readers and the courts to reconsider and recast some of their notions of First Amendment law.
January 13, 2010 at 6:50 pm
Posted in: Articles and Books, Book Reviews, First Amendment
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