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.
REFERENCES:
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.
CASE REFERENCES:
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.
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© Copyright 2011 by the author, Brian K. Pinaire.