Vol. 9 No. 10 (October 1999) pp. 434-435.

THE FIRST AMENDMENT by Daniel A. Farber. New York: Foundation Press, 1998. 298 pp. Paper $21.95.

Reviewed by Paul E. Parker, Truman State University.

"Many important books have been written about First Amendment theory; this is not one of them. It is primarily aimed at explaining legal doctrine. As a result, we will spend far more time talking about cases than about what might be considered deeper issues, such as judicial methodology or fundamental philosophical principles" (p. 19). True to his word, Daniel Farber has written a doctrinal text on First Amendment law, whose "goals are description and analysis" (p. 19).

Naturally these goals limit the audience for the book. The primary audience will be law students who will have to learn the jumble of rules that the Supreme Court has set forth in First Amendment jurisprudence. And while some books deserve a wider audience, this is not one of them. This is a judgment based mostly on the departure from traditional standards of scholarship to which readers of the LAW AND POLITICS BOOK REVIEW are accustomed. Farber sketches contours of academic debate in some areas, but the reader is not troubled with names of scholars or schools making these arguments, and there is not a single scholarly citation. Even direct quotations from cases are not cited with reference to the pages from which they are drawn. This nonacademic approach makes the volume particularlyunsuited for normative constitutional law scholars, and students of judicial politics will likely find a focus on doctrine instead of justices' attitudes or institutional constraints to be a nonstarter. But, if you are looking for a traditional doctrinal presentation, here it is.

Farber offers his doctrinal analysis in fourteen chapters, which, coupled with the index and case citations, top out at 298 pages. Despite the all-encompassing title, the book is heavily weighted toward free speech issues. In addition to the introductory chapter, which outlines issues such as Why Protect Free Speech?, First Amendment History, and Overview of Current Doctrine, eleven chapters address free speech matters. The final two chapters cover the free exercise and establishment clauses.

As one would expect of a doctrinal text written by a law professor, the book is organized into sections and sub-sections and sub-sub-sections that set forth these various tests and standards. The main sections include, "Foundational Issues" (part I), "The Categorical Approach (II), and Speech in Special Settings" (III). Foundational Issues include "The Content Distinction," and "The First Amendment Toolkit" (chapter 2 and 3). The Categorical Approach includes "Illegal Advocacy," "Offensive Language and Hate Speech," and "Sexual Material" (chapters 4, 6, and 7), and Speech in Special Settings includes "Commercial Speech," "Public Property," "Speech in the Public Sector," "The Media," and "Associations, Parties, and Political Campaigns" (chap. 8-12).

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Although the book is a doctrinal presentation, Farber's essential point, familiar to students of the First Amendment (or to the novice, looking at the table of contents), is that to understand the Court's First Amendment jurisprudence is to understand the patchwork of rulings and tests that "resemble a complicated legal code rather than a unitary set of principles" (p. 56). Additionally, Farber cogently asserts that some historically unsettled areas are today so settled as to be taken for granted. Examples include the unconstitutionality of school prayer, the inability of government to discriminate based on content of speech, and the imminent lawless action standard of BRANDENBURG v. OHIO (1969), which seems to have resolved the half-century attempt to determine when government can silence speech. Finally, while Farber may not be an absolutist on First Amendment jurisprudence, he appears consistently to embrace decisions that have broadened free speech rights. Having rejected any comprehensive theory for the importance of the First Amendment in chapter one -- referring to a web of values, of which free speech is one strand, as opposed to a tower of values for which speech is the foundation (p. 8) -- his preferred position for speech does appear a bit odd.

Judged on its own goals of description and analysis, the book appears to be ok, although there are some distracting, if not troubling, issues. Given there are so many categories and rules, it seems reasonable to ask which approach the Court will apply, when - for some types of speech seem to be classifiable under one of at least two categories. And why does it matter that there is a captive audience in FCC .v. PACIFICA (1978), but not in COHEN v. CALIFORNIA (1971)? Additionally, the choice not to include scholarly citations is maddening, especially when the reader is faced with claims that seem either worthy of pursuit, or of dubious veracity. Where, for instance, can I learn more about the 'repression of speech that filled the 19th Century' (p. 58)? Finally, the reader might find puzzling the choice to include anecdotal information of limited value, while speculating in areas that a little research would support. On the one hand, we learn that while BRANDENBURG was issued per curiam, the real author was Justice Fortas, prior to his being squeezed from the Court (p. 69). On the other hand, there is no clear evidence offered to support the assertion that the Court has grown less deferential to Congress and the executive (p. 54).

Ultimately, then, we have a text useable in teaching, but a narrow kind of teaching. There is a lack of interchange within the text, as matters discussed in different chapters are not consistently related to each other, and a lack of interchange with other texts. I am skeptical whether readers other than those assigned to read it, law students or reviewers, will wade through the tedium of rules that is First Amendment law.

REFERENCES

BRANDENBURG v. OHIO, 395 U.S. 444 (1969).

COHEN v. CALIFORNIA, 403 U.S. 15 (1971)

FCC v. PACIFICA FOUNDATION, 438 U.S. 726 (1978)