Vol. 13 No. 1
(January2003)
LIBERTY AND AUTHORITY IN FREE EXPRESSION LAW: THE UNITED STATES AND
CANADA by Karla K. Gower. New York: LFB Scholarly Publishing, 2002.
297 pp. Cloth $70.00. ISBN: 1 931202 34 6.
Reviewed by Samuel B. Hoff, Department of History, Political Science,
and Philosophy, Delaware State University. Email:
shoff@dsc.edu .
This book, part of the Law and Society Series by LFB Scholarly
Publishing, is authored by Karla Gower, an Assistant Professor in the
Department of Advertising and Public Relations at the University of
Alabama. Focusing upon the United States and Canada, the study
"explores the tension existing in democracies between liberty and
authority and how that tension affects the law of freedom of expression"
(p. 2). This objective is achieved by analyzing how political
theorists and philosophers in the two nations have viewed the
relationship between the individual, state, and society in the twentieth
century and determining whether such conceptions have an impact on
political speech cases decided by supreme courts. Following an opening
chapter, the author examines the topic over five time periods.
The Introduction furnishes an historical perspective of how both
nations view authority. While America was established based on a
distrust of the state, Canada accepted the idea of strong state
orientation. Though the two countries have some common features, the
aforementioned difference led to several distinctions between them. For
one, the United States has a liberal, egalitarian background which
emphasizes individualism; whereas Canada's development reflects British
conservatism and deference. Further, while America has added just
seventeen amendments since the Bill of Rights was ratified in 1791,
Canada passed forty-seven constitutional acts between 1763 and 1982.
Finally, the federalist system employed by America is contrasted with
the parliamentary supremacy model adopted by its northern neighbor.
Chapter 2 compares the U.S. and Canada during the first twenty years of
the twentieth century, referred to as the Progressive Era. In the
United States, theorists such as William James and John Dewey ushered in
a pragmatic philosophy. In Canada, Stephen Leacock and others continued
a focus on idealism. Both nations moved significantly from the laissez
faire trend predominant at the end of the nineteenth century toward an
acceptance of government intervention to facilitate social reforms.
Major political speech cases decided by the U.S. Supreme Court and
Canadian province courts reflected a prevailing conservatism which
tilted toward acceptance of limitations on freedom of expression.
Chapter 3 examines political thought and freedom of expression cases in
the United States and Canada between 1921 and 1945. A major change
occurred in the direction of political philosophy after 1930 in both
countries. In America, a postwar conservatism was replaced with a
liberal pragmatic approach. In Canada, idealism was superseded by
socialized individualism. The outcome of political speech cases mimic
the revision in thought. For example, the author finds that in five
such cases before 1930 decided by the United States Supreme Court, the
speaker lost in four; whereas after 1930, the speaker won in thirteen of
fourteen political speech cases. Canada's Supreme Court decided one
case in the area of freedom of expression over the period. In both
nations, a pattern highlighting liberty over authority was evident.
Chapter 4 focuses upon the period, 1946 through 1962, labeled by the
author as the "consensus years." In the United States,
relativism/pluralist philosophy stressing conformity collided with
renewed conservatism fixated on anti Communism. Despite the fact that
speech was protected in twenty seven of fifty-two free expression cases
decided by the U.S. Supreme Court over this duration, Gower holds that
authority triumphed over liberty. In Canada, a conservative philosophy
coexisted with socialized individualism. Though Canadian judges are
viewed as more conservative and less supportive of press rights than
American justices, no definite trend in either the liberty or authority
direction is evident, according to the author.
Chapter 5 reviews the fourth period, 1963 through 1974. Events in the
United States, including the civil rights and women's movements,
combined with anti war protests, hastened social change, as did the
Quebec Quiet Revolution in Canada. Without question, the author finds
that, during this juncture, political theory favored individualism and
liberty. The U.S. Supreme Court decided sixty-two freedom of expression
cases over the twelve year span, and the speaker or protestor won in
fifty-two of them. Similarly, the Canadian Supreme Court ruled for the
speaker in both cases it decided on the subject during the same era.
Chapter 6 evaluates the final twenty five years of the last century,
during which American and Canadian political philosophy seem to have
moved in different directions. For instance, the writings of George
Will and others in America indicated a conservative shift in thought and
a corresponding distrust in the authority of the state. However, the
passage in Canada of the 1982 Charter of Rights and Freedoms-a written
bill of rights-"represents on its face the acceptance of liberalism as
the dominant political thought" (p. 162). Free expression victories in
cases decided by the Supreme Court in the United States dropped from 86
to 67 percent (compared to the preceding era); speech won in only two of
thirteen post Charter cases in Canada. Still, the author contends that
no dominant political philosophy manifested itself in America. Although
the Canadian Supreme Court exhibited more faith in the state, Gower
neglects to clearly identify whether Canada's political philosophy was
weighted more toward liberty or authority.
In the Conclusion, Gower summarizes the patterns over the five
historical periods she has assessed and finds no evidence that either
nation's court influenced the other. But she does claim that a
correlation between political thought and free expression legal
development may be discerned from the results of the study.
A few previous publications attempt cross national legal comparisons of
constitutions and rights. Daniel Kramer (1982) compares civil rights
and liberties in five nations, including the United States, France,
India, Great Britain, and the Soviet Union. Marian McKenna's (1993)
edited book traces the origins and functions of the American and
Canadian constitutions. Finally, Vicki Jackson and Mark Tushnet (1999)
integrate American and Canadian constitutional law cases into their
work, which also encompasses
selected constitutional controversies in Europe, Africa, Asia, and the
Middle East.
Gower, a native of Canada, is to be commended for a unique
juxtaposition of political philosophy and constitutional law. The
duration of the analysis-an entire century-gives the work context. The
list of sources used is excellent. The material is easily
comprehendible and would be a valuable addition to undergraduate classes
focusing on constitutional law and freedom of expression cases in
particular.
Nonetheless, the book does have a few shortcomings. First, although
Gower does a decent job compensating for the development of Canadian
Supreme Court jurisdiction, there are too few Canadian free expression
cases for meaningful comparison with the United States Supreme Court
experience in two chapters (3, 6). Second, the chapter summary sections
and the Conclusion, itself, tend to repeat rather than synthesize
findings. Third, the author's assertion that a correlation exists
between political thought and legal resolution of political speech cases
in America and Canada is debatable, both because there are periods with
no apparent link and because of conceptual confusion between political
philosophy and political ideology. Still, the use of the liberty v.
authority dichotomy presents some intriguing analytical possibilities
and could be adapted to the examination of other civil liberties in the
future.
REFERENCES
Jackson, Vicki C., and Mark V. Tushnet. 1999. COMPARATIVE
CONSTITUTIONAL
LAW. New York: Foundation Press.
Kramer, Daniel C. 1982. COMPARATIVE CIVIL RIGHTS AND LIBERTIES.
Lanham, MD: University Press of America.
McKenna, Marian C., editor. 1993. THE CANADIAN AND AMERICAN
CONSTITUTIONS IN COMPARATIVE PERSPECTIVE. Calgary: University of Calgary
Press.
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Copyright 2003 by the author, Samuel B. Hoff