Vol. 13 No. 12 (December 2003)

SPEECH, CONDUCT, AND THE FIRST AMENDMENT, by Howard Schweber. New York: Peter Lang Publishing, 2003. 421 pp. Paperback $33.95. ISBN: 0-8204-5295-5.

Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer@fsc.edu .

This book, authored by Howard Schweber, Professor in the Political Science Department at the University of Wisconsin-Madison, is part of a series of "Teaching Texts" on law and politics. Previous volumes in this series have dealt with such diverse issues as sexual harassment, same sex marriage, gun rights, and international human rights. Books in this series are designed to provide a concise and affordable treatment of important subjects to be used in the undergraduate classroom. In this regard, SPEECH, CONDUCT, AND THE FIRST AMENDMENT is an unqualified success.

The book is divided into ten chapters. The first chapter details the historical background behind the adoption of the First Amendment. Special emphasis is given to the Massachusetts Body of Liberties and the Virginia Declaration of Rights as foundational sources which inspired Madison in composing what ultimately became the First Amendment. The chapter also includes a classic reading from Thomas I. Emerson to focus the reader on a unified reading of the Amendment. Finally, the chapter concludes with a short glossary of terms that are especially helpful to readers confronting this area of law for the first time.

Chapter Two begins a substantive look at the speech clause of the First Amendment, and Schweber guides the reader through the early days of free speech before turning to specific cases. The discussion begins properly with SCHENCK and ABRAMS and continues through the classic Holmes and Brandeis dissents of the era. Interestingly, however, the first actual case excerpt included in the chapter is from BRANDENBURG v. OHIO. While the author explains the development of the clear and present danger test and the problems regarding its application, it is not until this point where he allows the Court to speak for itself. The chapter also focuses in detail on obscenity, fighting words, libel, and public forums as the author skillfully moves from one topic to the next. Once again, however, only two additional cases are excerpted in the remainder of this chapter.

Chapter Three is quite far reaching, covering the more modern approach to libel and obscenity, as well as new topics in sexual harassment, commercial speech, and hate speech. This chapter does an excellent job alternating between the narrative and several extended excerpts from classic Supreme Court opinions. The selection of cases here is outstanding; the cases are quite current and provocative, and the skill of the author in connecting these diverse topics into a single cohesive chapter is noteworthy.

Chapter Four focuses on the speech/conduct dichotomy and is the best speech chapter in the book. It is clearly focused with an ample number of cases to illustrate the points made by the author. This attempt at line-drawing can be very complicated for undergraduates to grasp. Schweber's treatment of this complex material is outstanding, making the subject approachable and easy to follow by clearly building from one case to another and applying the lessons of prior decisions.

Chapters Five and Six provide the book's explanation of the religion clauses. Chapter Five begins with the establishment clause, tracing its evolution over the years. As with most books, this chapter leads with EVERSON v. BOARD OF EDUCATION and follows that up with LEMON v. KURTZMAN. The presentation veers away from most other books of this genre in taking no position on the LEMON test. Rather, the author leaves questions regarding LEMON's validity to the Justices themselves. Further, he presents a balanced look at competing views, allowing the reader to tackle this complex issue individually. Chapter Six continues with an assessment of free exercise. The author here makes an interesting choice, spending the bulk of the chapter to a consideration of government accommodation of religious practice in such cases as SHERBERT v. VERNER (making adjustments for Sabbatarians who refused to work on Saturday) and WISCONSIN v. YODER (allowing exemptions from school attendance laws for the Amish). The chapter concludes with the landmark decision in EMPLOYMENT DIVISION v. SMITH, which, in holding that a generally applicable law will be allowable even if it burdens religious practice (in this case the ingestion of peyote as part of a Native American religious ritual), drastically altered the free exercise landscape and calling into question the prior decisions included in chapter. The author does briefly address these changes; however, SMITH rightfully should have a more prominent role in this section of the book.

Chapter Seven returns to the topic of free speech by examining cases dealing with the government as a speaker as well as access to government property for speech. This is actually a nice bridge between the first two sections of the book, as much of the speech challenged in this section is religious speech. Accordingly, Schweber is able to show the interconnectivity of many First Amendment rights.

Chapter Eight deals with freedom of the press. For this reviewer, this is the strongest chapter in the book. In most case books dealing with First Amendment issues, press issues generally get short shrift. Schweber provides the most complete analysis of the law and a sampling of the most relevant press cases to be found in any single volume. The chapter starts with the idea of prior restraints and what the First Amendment intended regarding the press. All of the important landmark cases one would expect to find are here interspersed with sharp analysis. However, the chapter goes on to cover many areas that are too often neglected, including Libel (beyond simply NEW YORK TIMES v. SULLIVAN), invasion of privacy, limits on access by the media, reporter's privilege, and restrictions on the broadcast media. This chapter is clearly the strength of the book. Chapter Nine considers the often overlooked rights to petition and assembly. While short, this chapter also provides material not regularly available in a book of this size and price and is a fine addition to the study of the First Amendment.

The book concludes with the presentation of three different views of the First Amendment-1) the affirmative approach, which views the First Amendment as a guarantor of minority rights rather than a limit on government power; 2) the negative approach, which sees the First Amendment as allowing government action through the democratic process with impact on rights through various balancing tests; and 3) the activist approach, according to which the First Amendment creates conditions of broadly conceived equality, thus allowing certain ideas to be declared wrong and off limits. Each method is clearly articulated and followed by excerpts from classic writings on the approach. The author does a nice job making these approaches accessible to the reader and is a nice conclusion to a fine book.

While the author has made some questionable choices regarding organization (as mentioned above), I am not aware of any single volume on the First Amendment which is as comprehensive and readable as this one. The fact that it was released in paperback and priced reasonably only adds to its value. Overall, I cannot recommend this book highly enough.

CASE REFERENCES:

ABRAMS v. UNITED STATES, 250 US 616 (1919).

BRANDENBURG v. OHIO, 395 US 444 (1969).

EMPLOYMENT DIVISION v. SMITH, 494 US 872 (1990).

EVERSON v. BOARD OF EDUCATION, 330 US 1 (1947).

LEMON v. KURTZMAN, 403 US 602 (1971).

NEW YORK TIMES v. SULLIVAN, 376 US 254 (1964).

SCHENCK v. UNITED STATES, 249 US 47 (1919).

SHERBERT v. VERNER, 374 US 398 (1963).

WISCONSIN v. YODER, 406 US 205 (1972).

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Copyright 2003 by the author, Paul Weizer.