Vol. 16 No. 12 (December, 2006) pp.970-974

CONTESTED WORDS: LEGAL RESTRICTIONS ON FREEDOM OF SPEECH IN LIBERAL DEMOCRACIES, by Ian Cram.  London, UK and Burlington, VT: Ashgate Publishing, 2006.  244pp.  $99.95/£55.00.  ISBN: 0754623653

Reviewed by Brian Pinaire, Department of Political Science, Lehigh University.  Email:  bkp2@lehigh.edu. 

The Ashgate series in Applied Legal Philosophy is, as the editor Tom Campbell explains, committed to publishing work which “adopts a theoretical approach to the study of particular areas or aspects of law or deals with general theories of law in a way which focuses on issues of practical moral and political concern in specific legal contexts” (Series Editor’s Preface).  Ian Cram’s CONTESTED WORDS represents a fine addition to this collection.  Cram is Senior Lecturer and Convenor for the Human Rights Research Unit in the School of Law at Leeds University and has published extensively on matters of comparative law and human rights, and thus he is particularly well-suited to execute his ambitious goal of exploring, from a comparative constitutional law perspective, the process and principles implicated in evaluating problematic forms and modes of expression in modern liberal democracies.  What distinguishes his approach to this project, he notes at the outset, is that his study “attempts to situate its analysis within a broader context that acknowledges the role played by underlying traditions and currents in political philosophy that frame the treatment of speech problems in constitutional courts” (p.1).  As such, his study is geared toward helping us to understand the nature and origins of those basic values that shape the interpretation of constitutional provisions pertaining to expression. 

The book includes eight chapters and begins with a discussion of “current controversies,” where Cram rehearses many of the basic debates familiar to scholars of free speech (and modern political philosophy, more generally), such as the general theoretical divisions between liberals and communitarians, as well as the resurgence in the late 1980s and 1990s of an interest in deliberative decision-making processes.  Chapter Two relies on the preceding overview in its consideration of “Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom.”  While much of this chapter’s discussion of, in essence, the “counter-majoritarian difficulty” (Bickel 1962) will be familiar to students of constitutional theory in the United States, Cram takes this opportunity to bring comparable “difficulties” into the picture as they have developed and as they have been debated in Canada and the United Kingdom.  It is here that the book demonstrates its greatest value to scholars and general interest readers. From this point forward, Cram juggles three narratives (three traditions, political cultures, and histories) as he works his way through the various contemporary problems in free expression which have been mutually experienced by this triumvirate of [*971] nations (with some occasional guest appearances by Australia).  Forecasting his perspective on these issues as he concludes the theoretical and historical synopses and literature reviews of the first two chapters, Cram argues that “judicial intervention can and does secure real advances that promote a more genuinely participative democracy” (of the variety desired by civic republicans in the United States) (p.45).  Certainly movement in this direction can be “incremental” and requires as an impetus “fact-specific litigation” (p.45), he concedes, but this notwithstanding, his assertion is that rights-based judicial intervention is still both worthy and desirable in the inevitable contestation of words ongoing in those democracies under consideration. 

Chapter Three initiates this attention to the more specific debates over expression today as it focuses on the “Political Expression” of parties, voters, and candidates. Such examples of expression (e.g. advertising by parties and voting by citizens), Cram writes, “lie at the heart” of what he contends should be the most protected form of expression in a democracy, and so he spends this chapter presenting examples to support his position that rights-based judicial intervention is necessary to check the tendency toward encroachment endemic to majoritarian systems of government.  As he puts it in the end and with his own emphasis, “In each of the liberal democracies considered in this chapter, it falls to the courts acting under the rule of law and within their respective constitutional traditions and frameworks to police acts of legislative and executive interference” (p.71).  With this emphasis on the role for judicial oversight in protecting political expression, Cram moves in Chapter Four to the ever-ripening debate over campaign finance in the US and the UK and, after a useful review of the major legislative regulatory endeavors in this regard, and court responses in each context, concludes that, although judicial responses may have diverged (as to limited or unlimited contributions to candidates, for example), the major points of congruence reached by the respective judiciaries regards the principle of disclosure, and the need for transparency in the funding of campaigns and the ostensible political education and enlightenment of the citizenry. 

Chapter Five looks at “Wounding Words,” Cram’s alliterative allusion to Richard Delgado’s (1982) depiction of hate speech.  Here, the author hearkens back to the theoretical ground staked out in Chapter Two and uses this especially controversial form of expression to argue that “the degree of protection manifested in any society will reflect a dominant underlying commitment either to the values of pluralism, communitarianism or its civic republican variant” (p.111).  After reviewing some of the usual suspects in the United States (e.g. the case of the Nazis in Skokie and R.A.V. v. ST. PAUL) and their counterparts in Canada and the UK, Cram sides with the critics of hate speech protections in finding that such expression ought to be “met with a proportionate legal response using the range of administrative, civil and criminal measures at the state’s [*972] disposal” (p.138).  Chapter Six’s “contestation” goes to what we might call the problem of porn, or as Cram presents the debate, the degree of protection accorded to “sexually explicit expression” within a framework that should be focused (in his perspective) on enhancement of deliberative democracy.  Here, Cram’s discussion tracks, but curiously does not refer to, the familiar claims of speech-theorists such as Alexander Meiklejohn (1953, 1962, 1965) and Robert Bork (1971) regarding the degree to which such expression is properly considered “political” and hence worthy of the judicial intervention lauded by Cram.  In a more applied sense, Cram sides with critics of the US Supreme Court’s general approach to such matters, by emphasizing, for example, the social costs (e.g. abuse or disempowerment) alleged by some to be associated with “expression” in the form of pornography.

In his final chapter dedicated to a specific and ongoing “contest,” Cram attends to the regulation of commercial expression (e.g. tobacco advertising) and, as readers familiar with typical classifications and tiers of speech would expect, he concludes that commercial expression is not, and ought not, be entitled to the same degree of protection accorded to political speech.  To be sure, his claim is not that commercial expression should be outside the realm of protection, but rather that it is properly susceptible to regulations not put upon its “political” counterpart, due to its “distance from the core reasons why we value freedom of expression” (p.201).  In his Conclusion in Chapter Eight, Cram ties together the previously considered speech problems with a descriptive and prescriptive discussion of the flaws in typical libertarian objections to content-based restrictions on expression, specifically the insufficient attention directed within this perspective to concerns for equality and dignity and the resulting discouragement of and damage to public discourse. 

CONTESTED WORDS will be of interest to readers with a general interest in modern free expression debates and to professors interested in a text to be used for purposes of considering debates in a comparative context, although as a function of its ambitions (transcending cultures and linking the law to the underlying traditions) and breadth, scholars who are experts in any one of the three primary loci (the US, the UK, and Canada) may find that the book glosses over some issues that deserve more care.  For example, while Cram makes an intriguing case for rights-based judicial intervention as a means for promoting participation, at least in the case of the United States, many would point to the Supreme Court’s campaign finance jurisprudence as oriented in precisely the opposite direction:  toward an excessively individualist approach that reifies the myopic tendencies of a market economy.  To wit, the Supreme Court is part of the problem, not the solution.  Or, for that matter, one might point to the fact (un- or at least under-appreciated by Cram) that the majority of Americans do not support the legal restrictions on voting by convicted felons and would tend to support the return of the franchise (Pinaire, et al. 2003) as various successful political mobilization efforts have recently [*973] demonstrated (see, e.g. King 2006), while it is courts that have maintained such infringements on this sort of ability to participate in political life.  Cram is cognizant of these factors, as he makes clear in Chapters Three and Four, but he seems to dismiss too quickly such challenges in seeking to defend the notion of the judiciary as the branch holding open the door to such democratic prospects and possibilities. 

Other specialists may find Cram’s conclusions to reiterate too much the arguments that have already been quite well-established in the literature on freedom of expression.  Indeed, because the discussion of the “value” of certain forms of speech has been such a central doctrinal concern for the US Supreme Court for so long, scholars have also focused considerable attention on the proper scope of “political” speech, for example; and the conference of Critical Legal Scholars, as but one collection of interested students and advocates, set forth a generation ago many of the same critiques that Cram relies upon in making his argument in this text.  Or, for that matter, given that his claims are situated within the “difficulty” most famously associated with Bickel and discussed above, those disinclined toward the “intervention” urged by Cram will have a problem with normative elements of Cram’s position(s) on these speech problems.   

Such criticisms notwithstanding (and many of them are almost unavoidable when dealing with the intersection of issues to which he attends), the real value of his project is in the compelling way he brings together the multiple debates ranging across comparative contexts and in the way that he effectively connects outcomes in various cases and responses to particular problems to the traditions, cultures, and underlying political philosophies and popular dispositions of the US, the UK and Canada.  The fact that he has accomplished that impressive feat in such an efficient, readable, and persuasive way is, if I may, without contest. 

REFERENCES:

Bickel, Alexander. 1962. THE LEAST DANGEROUS BRANCH. New Haven: Yale University Press.

Bork, Robert. 1971. “Neutral Principles and Some First Amendment Problems.” 47 INDIANA LAW JOURNAL 1-35.

Delgado, Richard. 1982. “Words that Wound: A Tort Action for Racial Insults, Epithets and Name-Calling.” 17 HARVARD CIVIL RIGHTS—CIVIL LIBERTIES REVIEW 133.

King, Ryan. 2006. “A Decade of Reform.” THE SENTENCING PROJECT. Available at: http://www.sentencingproject.org/pdfs/FVR_Decade_Reform.pdf .

Meiklejohn, Alexander. 1953. “What Does the First Amendment Mean?” 20 UNIVERSITY OF CHICAGO LAW REVIEW 461-479.

Meiklejohn, Alexander. 1962. “The First Amendment is an Absolute.” THE SUPREME COURT REVIEW 245. [*974]

Meiklejohn, Alexander. 1965. POLITICAL FREEDOM. New York: Oxford University Press.

Pinaire, Brian, Milton Heumann, and Laura Bilotta. 2003. “Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons.” 30 FORDHAM URBAN LAW JOURNAL 1519-1550.

CASE REFERENCE:

R.A.V. v. St. Paul. 505 U.S. 377 (1992).

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© Copyright 2006 by the author, Brian Pinaire.