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