Vol. 14 No. 4 (April 2004)
NO ESCAPE: FREEDOM OF SPEECH AND THE PARADOX OF RIGHTS,
by Paul A. Passavant. New York:
New York University Press, 2002. 256pp.
Cloth $60.00. ISBN: 0-1-8147-6695-1. Paper $20.00. ISBN: 0-8147-6696-X.
Reviewed by Kyu Ho Youm, School of Journalism and Communication,
University of Oregon. Email: youm@uoregon.edu
Do Americans have a constitutional right to refuse to identify
themselves to police when they are asked to do so? This was the question before the U.S.
Supreme Court at oral argument on March 22, 2004, in reviewing the Nevada
Supreme Court’s 4-3 decision against Larry Hiibel, who refused-11 times-to
give his name to police officers in 2000. “The government has a legitimate interest in crime prevention,”
Conrad Hafen, a senior deputy attorney general of Nevada, told the Associated
Press. “Our argument is that
the government interests are so much greater than simply a person’s right
to say ‘I’m not going to give you my name.’” Gary Peck, executive director of the American Civil Liberties
Union of Nevada countered: “We don’t live in Russia in the 1950s. People [in the United States] have a right to be left alone unless they’re doing
something wrong” (emphasis added).
The most recent confrontation between the government’s
interest in crime prevention and “people’s” right to remain silent under
the Bill of Rights illustrates the widely accepted disparate view on liberals’
right vs. communitarians’ sense of societal security. At the same time, the discursive approach of the parties, and
especially of the civil libertarians in Hiibel’s ongoing privacy case before
the U.S. Supreme Court, showcases the “moral geography” of the United States
derived from the Cold War.
Professor Paul A. Passavant’s book, NO ESCAPE: FREEDOM
OF SPEECH AND THE PARADOX OF RIGHTS, challenges the dichotomous approach
to the relationship between liberalism and communitarianism. The author argues: “[T]he conventional perspectives on rights
neglect how recognizing rights for subjects also requires the production
of subjects for rights” (p.xi).
Passavant states that rights are not as discrete as they
are claimed to be by the community.
In this light, he calls attention to the U.S. Constitution, positing
that “when rights are claimed and contested within the framework of the
U.S. Constitution, the subject position to which rights attach is the American
people. Thus, when one claims a right like freedom
of speech in this context, one also claims identity with the American people”
(p.xi).
Instead of diverging from national identity, claiming rights
is co-existent with nationalism, according to Passavant, assistant professor
of Political Science at Hobart and William Smith Colleges. Consequently, he finds neither the liberal
nor the communitarian position on rights to be correct. In many ways, the sociopolitics and law
of the post-9/11 United States validates his conclusion: “Practices of rights
help to generate forms of social identity that sustain a rights claim. Rights claims, in addition to repressing
certain forms of identity, produce identities” (p.xii).
Passavant does not devote much space to addressing the
issue whether his well-reasoned arguments-e.g., no conflict between liberalism
and nationalism-are applicable to the USA Patriot Act and other restrictive
legal mechanisms in the United States after 9/11. Indeed, he did not have opportunity to do so, because he was
finishing his book in the summer of 2001.
He writes in the Preface to his book, however, that nationalism and
racism are more sweeping as the raison d’etre of many nation-states around the world. In the United States, he notes,
“America is forthrightly constituted as the exemplar of Western civilization
and its rights are regulated according to the strictest, most exclusive
logic of a racially based nationalism” (p.xiii).
To be or not to be an American is the crucial test in defining
whether rights are denied or recognized. The increasingly unilateral response of the United States to
the 9/11 terrorist attacks confirms Passavant’s view of post-Cold War America
on rights: “America sees itself and the world in terms of the racialized
moral geography of the West versus the Rest” (p.xiii).
The book, which comprises six main chapters, plus “Introduction”
and “Conclusion,” centers on the often ignored connection between liberalism
and nationalism. Passavant
uses freedom of speech as an example of the “classic liberal right” in contrasting
these two value systems. His
understanding of free speech is clearly inclusive in that he makes no distinction
among freedom of speech, press, or expression, although they need to be
differentiated in certain situations, as suggested by Robert Martin (1999).
The “Introduction,” subtitled “Freedom of Speech and the
Paradox of Rights,” takes a critical look into the misunderstanding of rights
vs. communitarian values. Passavant
rejects the “conventional theory” on the supposedly clear-cut division between
liberalism and nationalism. Instead, he establishes liberalism’s co-relationship with nationalism
under “modern” conditions, and he concludes that the typical notion that
liberalism is antithetical to nationalism is false.
Passavant’s efforts to connect rights to nationalism revolve
around the intersection between the right under the U.S. Constitution and
“the people”-i.e., American people.
He characterizes “the people” as the referent of freedom of speech
and other rights under the Bill of Rights.
Passavant asserts that being “an American” is a sine qua non of invocation of legal rights under the Constitution.
His discussion of the “American people” as eligible for free speech
rights is clearly confined to U.S. citizens, based on his textual analysis
of the U.S. Constitution and on the U.S. Supreme Court’s interpretations of those
rights. Consequently, he rejects
the word “person” in the U.S. Constitution as embodying the “abstract subject
of rights . . . truly at the heart of the U.S. Constitution” (p.6). In the “Conclusion,” however, Passavant
notes that the Supreme Court’s interpretation in ZADVYDAS v. DAVIS (2001)
of the Fifth Amendment (prohibiting the Government from depriving “any person”
of liberty without due process of law) indicates “a potential crack” in
the “American people” centrality. (pp.191-92)
Passavant’s emphasis on citizenship as the key national
identity for rights under the U.S. Constitution stands in sharp contrast
with Georgetown University law professor Dave Cole’s position on the distinction
or non-distinction between citizens and foreign nationals. Cole wrote in 2003:
The
Constitution does distinguish in some respects between the rights of citizens
and noncitizens: the right not to have one’s vote discriminatorily denied
and the right to run for federal elective office are expressly restricted
to citizens. All other rights,
however, are written without such a limitation. . . .
The
fact that the Framers chose to limit to citizens only the rights to vote
and to run for federal office is one indication that they did not intend
other constitutional rights to be limited to citizens. Accordingly, the Supreme Court has squarely stated that neither
the First Amendment nor the Fifth Amendment “acknowledges any distinction
between citizens and resident aliens.” (pp.212, 213)
Nonetheless, Passavant contends that adjudication of rights
is intertwined with adjudication of the identity of the American people. Thus, “What identity is given to the ‘American
people,’” he states, “helps to determine whether a given act is an instance
of ‘free speech’ that is protected by the Constitution’s First Amendment,
or whether it constitutes a social problem that is policed legitimately
in the social interests of the American body politic” (p.8).
The historical organization of the book is due to the author’s
use of various legal events “as means for diagnosing the U.S. national formation
at specific junctures.” Chapter
1, “Liberal Legal Rights and the Grounds of Nationalism,” sets the stage
for examination of the historical coincidence between liberalism and nationalism.
It analyzes how the protections of rights and the founding occurred
simultaneously and why the rights proclaimed in the Declaration of Independence
and guaranteed in the Bill of Rights are for the American “people” as a
nation, rather than directed to “abstract, generic persons.”
In Chapter 2, “John Burgess Is to Woodrow Wilson as Individual
Rights Are to Community?: Nation, Race, and the Right of Free Speech,” Passavant
offers a detailed, powerful rebuttal to Mark Graber’s argument that President
Woodrow Wilson’s policy on political dissent, as well as John Burgess’ criticism
of the policy, exemplifies the difference between nationalism and individual
rights. He attributes Graber’s
and other First Amendment scholars’ misunderstanding of Wilson vs. Burgess
on free speech to their “misplaced reliance on the idea that liberalism
and nationalism are antithetical.”
The “Millian paradigm” is used in Chapter 3 to highlight
the discursive background of free speech as a constitutional right. As indicated in the chapter title-“A
Moral Geography of Liberty: John Stuart Mill and American Free Speech Discourse”-the
paradigm recognizes discourse of free speech as “a marketplace of competing
ideas.” Passavant’s analysis of Mill’s racialized moral geography and its
relationship to free speech discourse is astutely developed and cogently
presented.
Chapter 4, “The Landscape of Rights Claiming,” focuses
upon how the U.S-Soviet confrontation in the Cold War placed the rights
debates as a defining element of the United States domestically and internationally. The moral geography of the United States
in the post-Cold War era, as dramatized by the Salman Rushdie affair, explains
why America “is a nation that understands itself as representing the civilized
West” (p.130).
Chapter 5, “Whose First Amendment Is It, Anyway?” uses
hate speech and multiculturalism to illustrate how American rights define the United States as a nation in a class
by itself. Passavant examines
the application of the First Amendment to hate speech codes and related
issues such as academic freedom. Several
leading hate speech decisions, including R.A.V. v. ST. PAUL, are informatively
noted. Passavant is critical
of Justice Antonin Scalia’s opinion for the U.S. Supreme Court in R.A.V.
for its inconsistent “fighting words” arguments.
In Chapter 6, “The Governmentality of Discussion,” Passavant
analyzes how the 1990s’ debate over sexual expression exemplifies rights
claims as determined by the identity of the American people. The “Conclusion” summarizes the author’s key arguments. At
the same time, Passavant thoughtfully qualifies the nation-state centrality
of his legal rights arguments, recognizing that global sovereignty will
be more than empty rhetoric. Likewise,
as noted above, he calls attention to the Supreme Court’s 2001 interpretation
of “person” under the Fifth Amendment and the implications for his interpretive
emphasis on identity.
Overall, NO ESCAPE offers new insights on the relationship
between liberalism and communitarianism by critically delving into historical
events, sociopolitics, and legal developments. It challenges the conventional wisdom regarding the inherent
conflict between expanding liberal rights while enhancing communitarian
values. Although some readers
will likely find Passavant’s “People” notion a little bit too limiting,
they should find considerable value in his judiciously documented and forceful
argument. This is true especially
in today’s context, where we are seriously challenged to reconsider how
to balance safety with freedom in the United States and abroad.
REFERENCES:
Cole, David.
2003. ENEMY ALIENS: DOUBLE
STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM. New York: New Press.
Martin, Robert
(ed.). 1999. SPEAKING FREELY: EXPRESSION AND THE LAW IN THE COMMONWEALTH.
Toronto: Irwin Law.
CASE REFERENCES:
R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).
ZADVYDAS v. DAVIS, 533 U.S. 678 (2001).
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Copyright 2004 by the author, Kyu Ho Youm