Vol. 12 No. 10 (October 2002)
CRITIQUING FREE SPEECH: FIRST AMENDMENT THEORY AND THE CHALLENGE OF INTERDISCIPLINARITY by Matthew D. Bunker. Mahwah, NJ and London: Lawrence Erlbaum Associates, 2001. 206pp + xv. Cloth $39.95. ISBN: 0-8058-3751-5.
Reviewed by Paul A. Passavant, Department of Political Science, Hobart and William Smith Colleges. Passavant@hws.edu.
Matthew Bunker’s CRITIQUING FREE SPEECH is seemingly a critique of those who bring the insights of disciplines other than law to bear upon First Amendment jurisprudence. To this extent, it would be a defense of either a positivist or a formalist approach to the First Amendment against interdisciplinarity. At the end of the day, however, none of this has occurred. A particular First Amendment jurisprudence, hermetically sealed from competing disciplines has been neither identified nor defended. We are left, then, with a wide-ranging polemic against various forms of jurisprudence that can chart its roots to legal realism, and a concluding act of interdisciplinary borrowing from moral philosophy. The pay-off of the latter act, since it is unrelated either to a specified and defended First Amendment vision or to any but the antecedent chapter, is ultimately unclear. Moreover, since there is no statement at the beginning of the book distinguishing good interdisciplinarity from bad, there is no way to evaluate this particular instance of interdisciplinarity or to understand in a more precise way how the other acts of interdisciplinary borrowing went wrong that does not seem EX POST FACTO. Thus, CRITIQUING FREE SPEECH can be considered a critical literature review with interesting insights, but these insights are not made to cohere into a developed argument that leads us someplace specific and with a significance that is defended by the author.
“Mainstream First Amendment theory is under assault,” writes Bunker in the first sentence of his introduction. Chapter one of CRITIQUING FREE SPEECH, entitled “Classical First Amendment Theory,” attempts to identify the target of this assault, and summarizes a number of conventional approaches to the First Amendment while indicating some of their weaknesses. The justifications for free speech that Bunker finds to be prominent in United States Supreme Court doctrine or legal scholarship include marketplace theory, self government theory, checking value theory, individual autonomy theory, dissent theory, and eclectic theories. As those familiar with the literature in this area well know, these varying approaches to freedom of speech are not mutually consistent. Bunker refers to a statement made by Thomas Emerson over 30 years ago that the “Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases” (p. 1). The function of this overview of First Amendment theory for Bunker’s argument, as opposed to, say, Emerson, is unclear. He does not grapple with this pluralism with an eye to developing a “general theory of the first amendment” (Emerson 1963), nor does he explicitly develop the benefits of this pluralism (i.e., the LACK of one specifiable tradition) in a way that might highlight the productivity of contradictory or antagonistic principles (Shiffrin 1983). By leaving such loose ends, the reader is, in turn, left in the dark regarding what, precisely, the new interdisciplinarians are threatening, what, precisely, Bunker will be defending, and why, precisely, this “tradition” has value that merits defense.
Bunker then proceeds to address critiques of First Amendment doctrine from the perspectives of feminist jurisprudence (Susan Williams), law and economics (Richard Posner), theories of interpretation derived from literary theory (Stanley Fish), communitarianism (Michael Sandel, Alasdair MacIntyre, Charles Taylor), “new” realism (Cass Sunstein), and moral philosophy (Ronald Dworkin). In the interests of space, I shall focus this review on Bunker’s criticisms of literary theory and the new realists.
Bunker defends classical First Amendment theory from the literary theorist Stanley Fish by criticizing him on three points: Fish’s embrace of “interpretive communities” over the “autonomous self;” Fish’s claim that “theory,” understood in the strong sense, has no consequences; and Fish’s rejection of absolute free speech in favor of a view that for speech to signify, there must be a necessarily exclusive, hence political, basis that constitutes the possibility for meaningful speech. On the first point, Bunker argues that Fish’s interpretive communities render creativity and imagination absent and incapable of accounting for change (p. 84). On the second point, Bunker suggests that Fish’s theory-practice dichotomy is a distinction without a difference; makes odd his focus on legal theorists; and makes his criticisms of “critical self consciousness” in the name of interpretive communities potentially inconsistent for claiming to know what he claims cannot be known since it relies on a position from which to assert that critical self- consciousness is impossible (p. 89). On the third point, Bunker states that Fish’s arguments may be fine as philosophy of language but unhelpful for First Amendment theory since few, besides Justice Hugo Black, defend free speech absolutism. This makes the critique of absolutism “accurate but trivial” (pp. 91-92). Moreover, according to Bunker, the distinctions that Fish claims underpin First Amendment jurisprudence and target for criticism—action versus belief, marketplace of ideas, and political neutrality—are either not orienting debate (action versus belief and the marketplace of ideas as Fish takes it up) or are wrong (neutrality). As Bunker writes, courts “do a reasonable job of maintaining neutrality within limited domains of First Amendment law” (p. 95).
Bunker attacks Fish for being unable to account for change and creativity. Fish has, however, taken up these criticisms of his work and explains how he understands change (1989), although Bunker does not engage this piece. Based on the Fish essay Bunker does take up, though, we can discern Fish’s position and how Bunker’s inability to address it is symptomatic of the main weakness of his book—the failure to identify a free speech principle that merits defense.
According to Fish, a creative speech act can only occur when other possibilities are excluded. It then follows from this creative (and exclusionary) act that there can be no such thing as absolutely free speech—speech that is sensible can only be so in light of a structuring purpose. This is why there can be no First Amendment neutrality in an absolute sense. Fish is trying to take away the “neutral liberal state made me do it” excuse used by judges and other policymakers to justify why racial insults damaging to a racially inclusive democracy or to individual autonomy are tolerated—if the latter were our purposes, then we wouldn’t tolerate them. Thus, if Bunker concedes Fish’s point at the level of linguistic theory, then he must either defend different core First Amendment principles than democracy or individual autonomy, or show how a different legal regime than the one Fish proposes would better achieve those purposes. But this brings us right back to the unanswered question: what is a fundamental First Amendment purpose?
In terms of the “new realism,” Bunker criticizes the way that these scholars “obliterate” the public-private distinction, and thereby “cast the constitutional interpreter into a doctrinal abyss” (p. 136). Moreover, he contends that there is no necessary reason why looking at a case through a new realist lens will necessarily demand that a different result ensue. Because a leap still needs to be made from description to prescription, one “still needs a full-blown First Amendment theory to derive any normative principles or doctrine” (p. 137). Bunker also argues that NEW YORK TIMES V. SULLIVAN (1964) is inapt as a precedent for opening to First Amendment review all of the background laws of property, tort, and so forth since Sullivan, a state actor, was utilizing libel law to punish the NEW YORK TIMES as a speaker based on the content of its speech. Thus, someone like Sunstein should not use this case to support a broader argument in favor of enjoining a state from enforcing its background legal regime against those “trespassers” who seek access to a newspaper’s editorial page. Otherwise, writes Bunker, there could be a veritable riot at the editor’s computer terminal as the final copy is sent to the composer’s room (p. 150).
Bunker’s discussion of new realism shows that First Amendment scholarship should proceed to consider under what conditions property law constrains First Amendment values and whether the new realist insights suggest that courts should take up this question of policymaking, or if these insights are better considered as encouragement to legislatures to make these determinations and a warning to courts to defer to legislatures on these questions. Despite these insights, however, Bunker neglects the fact that Sunstein’s point that the social landscape is not a function of purely private choice but is thoroughly structured by a background of legal decisions is NOT divorced from a larger normative theory of the First Amendment. Sunstein HAS elaborated a normative approach to the First Amendment, highlighting its importance to deliberative democracy (1993). Sunstein’s project is to promote the legal implementation of his normative views by taking away the naïve objection based on laissez-faire myth that it cannot be realized without somehow intruding upon a pre-legal sphere of freedom in violation of constitutional rights.
Bunker finds all of the interdisciplinary scholarship he considers to be wanting with the exception of moral philosophy. Bunker shows how Posner’s work requires unacknowledged moral determinations to assess what will be “best with regard to present and future needs” (p. 175). Thus, he claims that “constitutional jurisprudence simply cannot be divorced from moral reasoning” (p. 181). In conclusion, Bunker advocates the notion of “reflective equilibrium,” famously utilized in John Rawls’s A THEORY OF JUSTICE, as a way to adjust First Amendment theory to constitutional realities. This approach will have the value, according to Bunker, of being inclusive with regard to interdisciplinary work without “abandoning core First Amendment principles and doctrine” (p. 188).
CRITIQUING FREE SPEECH covers a great deal of literature, making provocative and at times insightful criticisms that can open the way for future research. But as a book, CRITIQUING FREE SPEECH has significant problems that derive from a failure to stake out a specific position from which to measure the “interdisciplinary” critiques (I am still trying to figure out why legal realism or for that matter feminist jurisprudence ought to be considered “interdisciplinary”). Without being tied to a specific position, Bunker can range freely in his critiques while hiding from rebuttal, which is what gives the criticisms something of a polemical flavor. He can criticize Posner’s consequentialist reasoning while utilizing such reasoning himself to attack the new realists for threatening to put us in a “doctrinal abyss.” Not having elaborated what he considers to be liberalism or First Amendment purposes properly understood, Bunker can have the critics shadow boxing, as he does when he writes that those communitarians who criticize the atomistic liberal self as an inaccurate portrayal of reality “MAY misapprehend liberal claims” (p. 117, emphasis added) since liberalism may not be claiming to be descriptive at all—because Bunker has not told us what he takes to be liberalism, the critics are kept off-balance as they may or may not misapprehend it. In this way, the reader is left with no way to evaluate either Bunker or the critics.
This problem—writing a book that is largely a defense without clearly specifying what is to be defended and why—is particularly glaring when Bunker puts forward his notion of reflective equilibrium, which he claims can conserve “core” or “fundamental” First Amendment principles while also being “inclusive” toward a wide variety of interdisciplinary work. Never having presented a thoroughly defended normative theory of the First Amendment, we have no idea if what Bunker considers a “core” First Amendment principle is worth conserving or whether it is, in fact, compatible with a wide variety of interdisciplinary work.
Emerson, Thomas. 1963. “Toward a General Theory of the First Amendment.” YALE LAW JOURNAL (72).
Fish, Stanley. 1989. DOING WHAT COMES NATURALLY. Durham: Duke University Press.
Shiffrin, Steven. 1983. “The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment.” NORTHWESTERN UNIVERSITY LAW REVIEW (78).
Sunstein, Cass. 1993. THE PARTIAL CONSTITUTION. Cambridge: Harvard University Press. Reviewed in LPBR by Gregg Ivers (1993).
NEW YORK TIMES v. SULLIVAN, 376 US 254 (1964).
Copyright 2002 by the author, Paul A. Passavant.