ISSN 1062-7421
Vol. 12 No. 4 (April 2002) pp. 220-224.

ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA by Lee C. Bollinger and Geoffrey R. Stone (Editors). Chicago: University of Chicago Press, 2002. 320 pp. Cloth $35.00. ISBN: 0-226-06353-4.

Reviewed by Ken I. Kersch, Ann and Herbert W. Vaughan Fellow, James Madison Program in American Ideals and Institutions, Department of Politics,
Princeton University.

There are a number of intimations in this book that a change may be at hand in the ways in which we approach and understood free speech. And one such intimation suffuses the substantive arguments of the text. This edited volume is a product of the legal academy, and, indeed, of that academy at its most Olympian heights (eight of its twelve contributors are senior faculty members at just two law schools, Columbia and the University of Chicago). However, in taking up questions of First Amendment theory, the law professors here demonstrate a marked and wholly unexpected--at least to me--attentiveness to history and to political context. Nearly all the contributors structure their inquiries as, in some fundamental way, empirical. They all take up the trajectory of modern First Amendment jurisprudence, starting, for many, with SCHENCK v. UNITED STATES (1919). Then they consider that trajectory as a phenomenon to be first described, and, then, explained. Also, they ask what, in light of that history, is happening with First Amendment law today. The normative analysis of the more familiar type that is the typical province of these law professors is undertaken only in the context of a discernable, but not obtrusive, developmental focus.

The empiricism works especially well here, since the contributors prove to be not simply good theorists, as we had already known about most of them, but also an observant lot. in fact, they may be an observant lot BECAUSE they are good theorists; often, true-believing, "pure" empiricists are blind to the ways in which a methodological fundamentalism has the effect of taking a richly textured--and, hence, fascinating--topography and flattening it. The contributors to this volume have the intellectual confidence, on the basis of what they see, to rearrange the field's most familiar categories, and to set up their own taxonomies (or anti-taxonomies) that they contend better reflect the landscape that they see before them. The inclination to address theory and practice side-by-side is not only what makes many of these
essays so perceptive; it is also what makes them cohere.

These authors, it should be said, did not inaugurate the turn toward empiricism concerning free speech, though they have proved that they can spot an interesting new intellectual departure when they see one. The trend toward empiricism in the study of free speech must in some sense be a matter of intellectual history. Also, that turn in intellectual history is plainly a reflection of an altered political environment. The events of September 11 have taught many of us--paleo-liberals, perhaps, excepted--what we once knew about civil liberties, but

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which our triumph-of-justice civil libertarian narratives have tended to obscure. That is that the scope of civil liberties has always altered with the perception of the seriousness of the threat to the nation. It has taught us once again, moreover, that such an alteration is constitutive of the nature of civil liberty itself. This, despite the complacent consensus opinion of less menacing times, is how civil liberties work, and how civil liberties always have worked. Thus, where DENNIS v. UNITED STATES (1951) was once understood by all right-thinking people as an epic clash between the forces of light and darkness, or an irrational and maddening outburst of McCarthyite hysteria by minds (like Learned Hand's and Robert Jackson's) that, in other respects, were typically quite lucid, now we can see once again that DENNIS actually reflected a serious political and constitutional debate amongst thoughtful people who were faced with real dangers and serious threats. Who knew? History actually exists.

Even before September 11, though, things were changing. The old consensuses within the legal academy about the Warren Court jurisprudence as the Platonic embodiment of justice and the perfection of the judicial role have long since fallen away (Ronald Reagan's presidency was both an effect and a cause of the demise of the liberal consensus). Whatever readers may think about this turn of events as a matter of policy, there seems little doubt that the collapse of the intellectual hegemony of the old triumph-of-principle school has been a great intellectual boon. This collapse has predictably rendered the old-school Kantian constitutionalism of someone like Ronald Dworkin, which depended for its plausibility upon the genteel consensus that reigned in the faculty lounges of the law schools, less and
less relevant. In its place, the collapse of the old hegemony has naturally summoned forth and accorded pride of place to politically sensitive historical and historicist approaches to the freedom of speech.

ETERNALLY VIGILANT is a thoughtfully organized and clearly written book. The corpus of substantive contributions is helpfully book ended by introductory and concluding colloquies between the editors, Lee Bollinger and Geoffrey Stone. These colloquies offer readers pithy summaries of the history and principles of the modern law of the freedom of speech, and brief but sagacious reflections on that history and those principles (the argument of the substantive chapters themselves are summarized by the editors as each chapter appears). In a chapter entitled "Freedom of Speech and the Common-Law Constitution," David Strauss begins by providing a masterly account of the Court's case-by-case development of modern free speech doctrine (perhaps the best short account of that development I have read).

Next, in a chapter entitled "Free Speech and Good Character: From Milton and Brandeis to the Present," Vincent Blasi provides a useful overview of the various purposes that have, over time, been advanced in defense of a broader understanding of the freedom of speech. Blasi rejects "the tired trilogy of conventional free-speech justifications [individual self-fulfillment, the search for truth, and self-government] [as] at best incomplete and at worst so abstract and protean as to be of limited intellectual or practical utility." (p. 62). He then presents what he argues is the deeper justification, emphasizing the way in which free speech nurtures character traits such as inquisitiveness, skepticism, initiative, and

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courage, that conduce to the society's collective interest.

Kent Greenawalt's essay, "'Clear and Present Danger' and Criminal Speech" explores the problems that the criminalization of subversive advocacy and criminal speech, long staples of American law, raise for First Amendment theories. "The Speech Market and the Legacy of SCHENCK" presents Richard Posner at his most intellectually playful and counter-intuitive best. In his contribution, Posner skewers the transcendental nonsense that has made discussion of the First Amendment into a debate concerning values and principles. Shimmering rhetoric and bromides aside, empirical observation of the actual operation of the Amendment, Posner contends, has always been, at bottom, about cost-benefit analysis.

In "Reconciling Theory and Doctrine in First Amendment Jurisprudence," Robert Post, after an empirical survey of modern First Amendment doctrine, advances a pluralist (or anti-monist) theory of free speech purposes that he argues best reflects the nature of the actual doctrinal landscape. Ultimately, Post finds that, again, as an empirical (as opposed to a normative) matter, a participatory understanding of the First Amendment sits at the top of that scale. And this ranking, he argues, is what is distinctive about the American law of the freedom of speech. In his chapter, "First Amendment Opportunism," Frederick Schauer spotlights the ways in which an increasing array of social problems have been opportunistically recast by political and legal actors as problems of freedom of speech. He then ventures a list of tentative explanations for these developments. Stanley Fish's "The Dance of Theory" gets down to the theoretical basics and makes the case that all of the efforts of legal theorists to separate the law of free speech from politics, including the efforts of people like Robert Post and Judith Butler, who purport not to be doing this, have failed. For Fish, free speech law is politics, and liberal, universalist free speech theory has amounted to a long and sustained project to deny this.

Lillian BeVier, in "The Invisible Hand of the Marketplace of Ideas," is also out to clear away "the doctrinal litter that clutters up the First Amendment landscape" (p. 233). Her essay starts from the sharp observation that, at the same time that legal liability for harmful behavior in general has been radically increased, legal liability for harmful speech has been radically diminished. She asks why this is the case, and finds that the answer lies in an attentiveness to the structure of contemporary markets for political and commercial information.

The book concludes with a pair of essays focused on First Amendment issues raised by new technologies. Owen Fiss's essay on "The Censorship of Television," sees the evolving free speech doctrine that plainly distinguishes print media from broadcast and cable television, and is constructing a set of new rules for the latter, as an effort to take seriously the problem of private, "managerial censorship." He characterizes these developments as "an important first step toward the recovery of a
jurisprudence that sees the First Amendment more as a protection of the democratic system than as a protection of the expressive interests of the individual speaker." Cass Sunstein's "The Future of Free Speech," calls, as he did in his recent book, REPUBLIC.COM, for government intervention in the market to guarantee, in the interest of deliberative democracy, which Sunstein asserts to be the primary First Amendment value, that people do not

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self-segregate and that they are exposed to and challenged by a broad diversity of ideas.

In its concern with politics and empirical observation, this work reinforces the claims of Stanley Fish, one of the volume's contributors, who has emphasized that the law of free speech is politically constructed in a way that may--and does--alter over time. It, moreover, joins up nicely to the work of historians of free speech who would probably not want to be categorized as postmodernist buccaneers a la Stanley Fish, but who, over the past decade or so, have simply set themselves to doing the empirical history. In the process, scholars like Mark Graber (1991), David Rabban (1997), Rochelle Gurstein (1996), Christine Stansell (2000), and Michael Kent Curtis (2000), amongst others, have ably illuminated the politics and practice of the freedom of speech, as law and as a distinctive, culturally constituted
political discourse.

It is not apparent that the works of these historians have had a direct influence on the essays written by the law professors who contribute to this volume (though David Rabban's work, which was first published in the law reviews, does seem to have popped up on their radar screen). However, the discernable turn toward observation is a reflection of the same intellectual currents. All this puts this collection of essays plainly on the cutting edge.

The book does have some minor drawbacks common to essay collections, and particularly common to essay collections comprised almost exclusively of the work of a field's busiest leading lights. Many of the essays here, unsurprisingly, either echo or repeat arguments made by these scholars elsewhere. Nonetheless, though, even where portions of the arguments have appeared in print before, it is indubitably helpful to have them presented in compact form, side-by-side. And the editors have effectively taken care to turn the essays to a common theme that works well as an organizing focus.

Although ETERNALLY VIGILANT may be a tad too difficult for lower level undergraduates, I would recommend it highly for use in advanced undergraduate and graduate courses on the freedom of speech. It is a timely work by scholars who have a manifest knack for fixing on the questions that are most interesting here and now. And like good poets, they complicate the world around them as they describe it. Fortunately, this book reminds us that being dead-on and being interesting need not be mutually exclusive agendas.





Rabban, David M. 1997. FREE SPEECH IN ITS FORGOTTEN YEARS, 1870-1920. New York: Cambridge University Press.

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Stansell, Christine. 2000. AMERICAN MODERNS: BOHEMIAN NEW YORK AND THE CREATION OF A NEW CENTURY. New York: Metropolitan Books.

Sunstein, Cass. REPUBLIC.COM. Princeton: Princeton University Press, 2001.


DENNIS v. UNITED STATES, 341 U.S. 494 (1951).

SCHENCK v. UNITED STATES, 249 U.S. 47 (1919).


Copyright 2002 by the author, Ken I. Kersch