LIVING SPEECH

Vol. 17 No. 1 (January, 2007) pp.11-14

LIVING SPEECH: RESISTING THE EMPIRE OF FORCE, by James Boyd White. Princeton, N.J.: Princeton University Press, 2006. 256pp. Cloth. $29.95 / £18.95. ISBN: 0691125805.

Reviewed by Jerome O’Callaghan, Arts and Sciences, State University of New York at Cortland. Email: ocallaghan [at] cortland.edu.

Convinced that “dead modes of thought and expression” (p.xi) are overcoming our culture James Boyd White has provided LIVING SPEECH as the antidote. The subtitle, “Resisting the Empire of Force,” captures his idealistic thrust and even suggests a resurgent counter-culture. White establishes a binary scheme early on: there is “living speech,” and there is the rest. The meaning of “living speech” is centered in deliberation, reflection and silence. Such speech comes “from the center of the person” (p.16); it “comes from the silence within” (p.40); it is speech that is “deep, original, and self testing” (p.43). Living speech is the key to resisting an empire of force, i.e., a system of “thought and imagination” that requires us “to reduce other people to objects, to deny their equal claims to a life of meaning and fulfillment” (p.4).

Through six chapters White develops the role of living speech as a challenge to the empire of force that threatens to envelop all thought. His focus shifts from how living speech reveals the mind of its author, to the central role of the reader in creating meaning, to the importance of a form of writing that calls the reader into a conversation, to the relation between justice and the claim of meaning. In each chapter comparisons are developed among unlikely companions; Dante, Attorney General John Ashcroft, Shakespeare, Sophocles, Justice Harlan, Robert Frost, these are some of his prominent sources. White’s passion for Dante above all others is evident throughout. Law and literature sit side by side, and the result is a strange brew of comparative analysis. One can almost (and I emphasize almost) have sympathy for Attorney General Ashcroft when one of his news conferences is arranged in a line up with, among others, Dante, Shakespeare (via Polonius) and the Bible. No surprise that the highest law official in federal government falls into the empire of force category.

White is sincerely troubled by the trivializing banter that passes for contemporary public discourse; it corrodes both the quality of our lives and our ability to understand the meaning of our lives. Yet the endless punditry, formulaic thinking and myopic political grandstanding that he bemoans are also symptoms of an instant-gratification culture, a culture marked by an obsession with individualism, not to mention a form of “liberty” that is nothing more than dolled-up consumerism. White tackles none of these subjects directly, yet their role in the plague that he describes seems critical.

“The dominant mode of our culture, economic in nature, seems obviously inadequate as a model of life or speech” (p.41). [*12] The economic mode is the perfect example of the empire of force at work – it fosters modes of thought that tend to “erase the reality and humanity of other people” (p.6). In the context of law, the economic mode grabbed a foothold in the foundational phase of free-speech doctrine – it was in 1919 that Justice Holmes developed the ever-resilient “marketplace of ideas” analogy. White will have none of that; he is quick to dissect the flaws of the Holmes approach. Joseph Tussman covered the same territory with more verve in 1960:

The marketplace of ideas! Do we appreciate enough the daring of that conception? At one bold stroke it identifies the deliberative and the bargaining arts, turns the scientist into a businessman, the sage into the salesman. This is the most significant triumph of a business civilization. Or it would be if it did not ensure disaster. For unfortunately, we need the product of deliberation . . . . deliberating and bargaining are not the same, neither in process nor in result. Education turns on the difference. (Tussman 1960, at 104)

To the extent that this book reminds us of the importance of careful and deliberate expression, it obviously serves the common good. The readership of the Princeton University Press will no doubt agree that the kind of living speech extolled by White is far too scarce in our lives. LIVING SPEECH is, in all likelihood, an exercise in preaching to the choir. White’s commitment to the western canon narrows his horizon and limits his audience. It also reveals a more conservative agenda: immersion in the classics will improve the quality of just about everything. Of course White does not claim that living speech is the exclusive domain of the great authors of eras long gone. Nevertheless he avoids examples of living speech from popular culture for no clear reason. Take for example the relentless drive for more information in today’s broadband world – a drive that misses the problem of insufficient ability to understand what it all means or if it matters. In popular culture this is wisely summed up in a lyric from the rock group U2, “you miss too much these days if you stop to think.” Or, one might turn to Tom Stoppard’s play THE REAL THING for this endorsement: “I don’t think writers are sacred, but words are. They deserve respect. If you get the right ones in the right order, you can nudge the world a little or make a poem which children will speak for you when you’re dead” (p.54). Nudging the world a little is precisely the goal of living speech.

Readers interested in free speech law will find an analysis of legal writing in some famous free speech decisions – each is inspected for how well it fits the ideal of living speech. Justice Harlan in COHEN v. CALIFORNIA (1971) fares well, as do both Justice Jackson and Justice Frankfurter in dueling roles in W. VIRGINIA v. BARNETTE (1943). Justice Blackmun’s opinion in VIRGINIA STATE PHARMACY BOARD v. VIRGINIA CITIZENS CONSUMER COUNCIL (1976) “cannot manifest in its own composition a conception of valuable and living speech” (p.81) – however a decision that extended free speech protection to advertising was an unlikely candidate for “resisting the empire of force” in the first place. Anyone interested in free speech or civil liberties should read the [*13] Jackson-Frankfurter clash in BARNETTE. It is a brilliantly compelling example of a well-reasoned investigation of constitutional meaning, and White is right to draw our attention to its virtues in the context of living speech.

While there is a lot of merit to the arguments made in LIVING SPEECH, this reader felt immediate concerns in two areas: inconsistency in the discussion of free speech in the COHEN case, and the limitations of analyzing law through the means of Supreme Court opinions.

Justice Harlan receives substantial praise for his opinion regarding the famous “Fuck the draft” button on Cohen’s jacket. In this context it is a little strange that White does not identify Cohen’s slogan as either living or dead speech. Certainly plausible arguments can be made on both sides. More confusing is the missing reference to Justice Harlan’s oft-quoted aphorism: “One man’s vulgarity is another’s lyric.” That particular slide into free speech relativism is not consistent with White’s belief that certain categories of speech deserve constitutional protection, while other categories do not. Justice Harlan might just have easily said “one man’s stripper is another man’s ballerina” – yet White is adamant in his disapproval of the extension of free speech values to nude dancing. While White keeps a focus on Harlan’s writing in COHEN (the opinion is a “complex civilized composition” p.181), he appears to be having his cake and eating it too when it comes to free speech doctrine.

Although the analysis of Supreme Court opinions can be the source of both confusion and illumination, it is a mistake to treat it as an analysis of the law. The Court has no monopoly on writing “the law.” Too many other factors contribute to what “the law” is (both in practice and in theory): myriad courts, numerous legislative bodies, thousands of policy-implementing bodies, politics, even economics. A significant part of the law and politics literature has been devoted to demonstrating how removed the Court can be from the reality of the law. Although White directs the reader to the art of good writing, finding meaning in text, and the like, he also asks this pivotal question in his introduction: “is the law inherently [emphasis in original] an instrument of the empire of force?” (p.10). He would have the reader believe that the answer must be yes for two reasons. First, he has found specimens of living speech in Supreme Court opinions. Second, some Supreme Court opinions do in fact elevate First Amendment protection for living speech. Yet, review of a few Supreme Court opinions does little to address the heart of the question. Consider for a moment the claims made by Tocqueville about the nature of the legal profession: “Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten that, if they prize the free institutions of their country much, they nevertheless value the legality of those institutions far more: they are less afraid of tyranny than of arbitrary power.” It is hard for this reader to resist the conclusion that the [*14] law’s alliance with force, power and authority will ultimately prevail.

Education in the “liberal arts” has much in common with LIVING SPEECH. Both stress clear writing, careful argument, critical thinking; they set out to call us to “a deeper kind of life – a life of thought, and imagination and feeling” (p.139). White reminds us that a deliberate effort to achieve that ideal will face substantial obstacles. Those of us in education are well aware of the challenges. The rest of American society may be too distracted to notice.

REFERENCES:

De Tocqueville, Alexis. 1835. DEMOCRACY IN AMERICA. Available at http://xroads.virginia.edu/~Hyper/DETOC/1_ch16.htm.

Stoppard, Tom. 1982. THE REAL THING. London: Faber and Faber.

Tussman, Joseph. 1960. OBLIGATION AND THE BODY POLITIC. New York: Oxford University Press.

U2. 1991. “Until the End of the World.”

CASE REFERENCES:

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

VIRGINIA STATE PHARMACY BOARD v. VIRGINIA CITIZENS CONSUMER COUNCIL, 425 U.S. 748 (1976).

WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943).

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