Vol. 21 No. 7 (July, 2011) pp.416-420
CONGRESS SHALL MAKE NO LAW: THE FIRST AMENDMENT, UNPROTECTED EXPRESSION, AND THE U.S. SUPREME COURT, David M. O’Brien. Lanham, Md: Rowman & Littlefield Publishers, Inc., 2010. 150pp. Hardcover. $29.95. ISBN: 9781442205109. Electronic. $29.95. ISBN: 9781442205123.
Reviewed by Brian K. Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu.
David M. O’Brien, the Leone Reaves and George W. Spicer Professor of Politics at the University of Virginia, is a scholar whose works are probably known to most readers of this review. As the author of the well-respected STORM CENTER, as well as a popular undergraduate textbook for Constitutional Law-Civil Liberties courses (CONSTITUTIONAL LAW AND POLITICS), among other books and a vast number of articles, O’Brien has for decades now been one of the nation’s most astute observers of the Supreme Court — and especially the political significance of the institution. In CONGRESS SHALL MAKE NO LAW, O’Brien offers his contribution to the “Free Expression in America” series of the First Amendment Center, which as the series editor explains, “attempts to buttress the proud edifice of the First Amendment by better informing Americans about it” (p.xii).
The book contains six substantive chapters and one appendix, packaged in a scant eighty-five pages of actual text. Chapter One opens with what will be a familiar review of free speech case law for anyone who teaches the material. O’Brien fleshes out the differences in reasoning between “ad hoc balancing” and “absolutism,” with the cases (e.g. ABRAMS v. UNITED STATES and DENNIS v. UNITED STATES) providing examples of the various approaches; he then explains how “the Court gradually evolved a principled or definitional balancing approach to the First Amendment” (p.11), meaning that the Court began conceiving of speech in terms of categories that either were or were not protected forms of expression per se. Definitional balancing conveys the current Court’s approach to the First Amendment, O’Brien argues, although within both categories the justices have “balanced freedom of expression and perceived harms — harms both public and private — based on the context and medium of expression” (p.13). And so, the following chapters take up the charge of evaluating the judicial line-drawing in this arena, specifically attending to obscenity, defamation, commercial speech, and fighting words/disruptive expression, while also exploring how and why these categories failed to find constitutional protection in various contexts.
Chapter Two deals with obscenity, pornography, and indecent expression and includes a review of the familiar cases in this domain (e.g. ROTH v. UNITED STATES and MILLER v. UNITED STATES) and the reasoning that sustained them, while explaining as well the Court’s contemplation of the “special case” of children (e.g. NEW YORK v. FERBER and UNITED [*417] STATES v. WILLIAMS) and potential harms to captive audiences and the general public when indecent expression is involved (e.g. COHEN v. CALIFORNIA and F.C.C. v. PACIFICA FOUNDATION). Drawing on his summaries of these and other cases, O’Brien concludes that as the Court confronts future First Amendment challenges to its line-drawing in different contexts, its responses “will turn not on a categorized approach, but rather a highly contextualized, nuanced approach to the circumstances, alleged harms, and modes of communication, as well as its own changing composition and deference to Congress and the states” (p.36). As I will discuss more below, conjecture of this sort is difficult to dispute when set forth in such an abbreviated manner.
Chapter Three focuses on defamation and related harms, with a summary of cases pertaining to public figures, such as NEW YORK TIMES v. SULLIVAN and its progeny, as well as a description of the more particular approach for private individuals (e.g. GERTZ v. WELCH and MASSON v. THE NEW YORKER MAGAZINE) and a brief discussion of the Court’s general resistance to acknowledging differences between libel actions and suits averring an invasion of privacy (e.g. TIME, INC. v. HILL and COX BROADCASTING v. COHN). Following this recapitulation of case facts and cursory description of rulings, O’Brien contends, in an abrupt two sentence-long “Conclusion” to the chapter, that the Court is generally trending toward more First Amendment protection for allegedly harmful categories of speech like defamation — although the justices also seems to warrant criticism (he does not really develop this argument) for conflating the harms of invasion of privacy with those of defamation.
Chapter Four starts with a brief summary of the rationale for not extending constitutional protection to commercial speech (i.e. expression involving the advertising of goods or the rates for attorney services), then moves on to explain how such expression (in the right context, which is key here and throughout the book) might implicate First Amendment values (e.g. BIGELOW v. VIRGINIA), and concludes with a review of cases such as 44 LIQUORMART v. RHODE ISLAND, which vividly illustrate the competition of interests and conflict of values that drive debates over commercial speech. In the end, O’Brien succinctly suggests that while commercial speech is still technically an unprotected category of expression, the trajectory over the last couple of decades has been one moving toward greater constitutional protection.
In Chapter Five, O’Brien turns to “fighting words” and disruptive expression. While asserting that the Court has rendered “fighting words” per se a “null category,” given its rulings in cases such as WATTS v. UNITED STATES, O’Brien describes here how the justices have found exceptions to First Amendment protection that remain “related” (p.62) to the “fighting words” category — such as hate speech laws, symbolic speech and speech-plus-conduct, and various restrictions on students’ expression. Here, the reader gets a breezy review of landmark cases (e.g. BEAUHARNAIS v. ILLINOIS, R.A.V. v. CITY OF ST. PAUL, and UNITED STATES v. O’BRIEN), as [*418] well as more recent initiates to the typical undergraduate casebook canon (e.g. MORSE v. FREDERICK). The upshot of all this, O’Brien asserts in another exceptionally abrupt summary at the end, is that while there are still unprotected forms of expression, the Court has increasingly resisted the definition/categorical approach in favor of a case-by-case review allowing for specific attention to context and contingencies.
In a scant Conclusion chapter, O’Brien ruminates a bit on what the future may hold, mostly through the lens of UNITED STATES v. STEVENS, the 2010 case involving a prosecution (for selling videos of dog fights) brought under the Depiction of Animal Cruelty Act of 1999. In STEVENS, the Court struck down the statute and, in an opinion by Chief Justice Roberts, resisted the invitation to carve out a new category of unprotected expression — perhaps suggesting the general trend for the justices going forward.
O’Brien’s last few lines of this modest book reiterate a series of rhetorical questions he broached in Chapter One, mostly wondering why we as citizens value freedom of expression. Is it because of its instrumental value in promoting democracy? Is it because of its intrinsic value? Is it because it is the best test of truth in the marketplace of ideas? And so on. But of course that is where the really difficult questions begin, not where they end. Indeed, the questions themselves will be familiar to all scholars of the First Amendment; what is needed are some answers to these queries, akin to the explications provided by a spate of recent works focused on the historical development and political consequences of free speech rights (see, e.g. Denvir, 2010; Zick, 2009; Finan, 2008; Heyman, 2008; Pinaire, 2008; Cram, 2006; Gould, 2005). At least for this reader, it would have been nice to see substantially more attention to developing some kind of analytical framework, some new manner of data or evidence, some original observations, or some other kind of novel approach to what are already very familiar decisions by the high Court. I suppose one can say that the author has laid out the facts before the jury (the readers, for purposes of this analogy) and it is therefore up to us to come to our own conclusions; but for a scholar as renowned as David M. O’Brien, I must confess that this volume feels like comparatively under-cooked.
In this regard, I would disagree with the series editor’s exhortation that the book “offers the reader a treasure trove of information and ideas about how to think about the First Amendment” (p. xii). Anyone who teaches courses on the Supreme Court, the Constitution, and especially cases dealing with civil liberties, is already going to be very familiar with the cases, controversies, and “context” that O’Brien finds so compelling in this book. To wit, I am also not persuaded that “judges, lawyers, journalists, law students, college students, and laypeople alike” (p. xi) will find the work to be a “useful and eye-opening account” of the Court’s cartographic approach to this terrain. Certainly those of the above groups who do not follow free speech cases will appreciate O’Brien’s overview of the cases, and perhaps his efficient packaging of categories for purposes of enclosing the various exceptions in one very brief volume, but it seems to me [*419] that researchers, teachers and practitioners in this area of the law will find themselves wishing for more.
That said, the book is, I will concede, an “original tract” (p.xi) in that it does a suitable job of outlining cases, organizing conceptual considerations, and adumbrating lengthy and complicated rulings. By this measure, the book would be useful for undergraduates seeking more focused attention to when “no law” does not in fact mean “no law.” In that sense, it would make for a fine supplement to O’Brien’s own casebook for college classrooms. Conceived in that light, the above-mentioned questions that O’Brien raises at the end of the book might be just the place to begin class discussions with students who will inevitably be wondering what they should say about what the Supreme Court says can and cannot be said.
Cram, Ian. 2006. CONTESTED WORDS: LEGAL RESTRICTIONS ON FREEDOM OF SPEECH IN LIBERAL DEMOCRACIES. London, UK and Burlington, VT: Ashgate Publishing.
Denvir, John. 2010. FREEING SPEECH: THE CONSTITUTIONAL WAR OVER NATIONAL SECURITY. New York: NYU Press.
Finan, John. 2008. FROM THE PALMER RAIDS TO THE PATRIOT ACT: A HISTORY OF THE FIGHT FOR FREE SPEECH IN AMERICA. Boston: Beacon Press.
Gould, Jon. 2005. SPEAK NO EVIL: THE TRIUMPH OF HATE SPEECH REGULATION. Chicago: University of Chicago Press.
Heyman, Steven. 2008. FREE SPEECH AND HUMAN DIGNITY. New Haven: Yale University Press.
Pinaire, Brian. 2008. THE CONSTITUTION OF ELECTORAL SPEECH LAW: THE SUPREME COURT AND THE FREEDOM OF EXPRESSION IN CAMPAIGNS AND ELECTIONS. Palo Alto, Ca: Stanford University Press.
Zick, Timothy. 2009. SPEECH OUT OF DOORS: PRESERVING FIRST AMENDMENT LIBERTIES IN PUBLIC PLACES. New York: Cambridge University Press.
44 LIQUORMART v. RHODE ISLAND. 1996. 517 U.S. 484.
ABRAMS v. UNITED STATES. 1919. 250 U.S. 616.
BEAUHARNAIS v. ILLINOIS. 1952. 343 U.S. 250.
BIGELOW v. VIRGINIA. 1975. 429 U.S. 809.
COHEN v. CALIFORNIA. 1971. 403 U.S. 15.
COX BROADCASTING v. COHN. 1975. 420 U.S. 469.
DENNIS v. UNITED STATES. 1951. 391 U.S. 494.
F.C.C. v. PACIFICA. 1978. 438 U.S. 726.
GERTZ v. WELCH. 1974. 418 U.S. 323
ROTH v. UNITED STATES. 1957. 354 U.S. 476.
MASSON v. THE NEW YORKER MAGAZINE. 1991. 501 U.S. 496.
MILLER v. UNITED STATES. 1973. 413 U.S. 15.
MORSE v. FREDERICK. 2007. 551 U.S. 393.
NEW YORK v. FERBER. 1982. 458 U.S. 747.
NEW YORK TIMES v. SULLIVAN. 1964. 376 U.S. 254. [*420]
R.A.V. v. CITY OF ST. PAUL. 1992. 505 U.S. 377.
TIME, INC. v. HILL. 1967. 385 U.S. 374.
UNITED STATES v. O’BRIEN. 1968. 391 U.S. 367.
UNITED STATES v. STEVENS. 2010. 130 S.Ct. 1577
UNITED STATES v. WILLIAMS. 2008. 553 U.S. 285.
WATTS v. UNITED STATES. 1969. 394 U.S. 705.
© Copyright 2011 by the author, Brian K. Pinaire.