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