Chafee’s ‘children’: forthcoming books examine freedoms

Tuesday, August 30, 2011

Seventy years ago this year Harvard University Press published Free Speech in the United States by Zechariah Chafee Jr. In his preface, the Harvard professor wrote:

Late last autumn … Harvard University Press asked me to replace my book on Freedom of Speech, which was published in 1920 and has long been very difficult to obtain. The growing danger of a recurrence of conditions discussed in that book led me to interrupt a long piece of work and respond to their request, although the pressure of other tasks has not allowed me to do as much as I wished.  What I have done is to fuse together in this book all my ideas past and present on freedom of speech.

And what a fusion it was! Chafee and that book — published on the eve of World War II and on the occasion of the 150th anniversary of the Bill of Rights — had a profound impact on the direction of free-speech law in America.  Though Free Speech in the United States is still in print (published by the Lawbook Exchange), its $125 price tag is prohibitive. Used paperback copies are available for much less.

Given the importance of Chafee’s thought, let’s hope Harvard University Press will one day reissue the book, perhaps on its 75th anniversary, replete with scholarly introduction and notes.

Happily for historians and others, Chafee’s original work, Freedom of Speech, is now available in Kindle format, and for a mere 99¢. That book — with its “Give your mind sea room” epigraph quote — is a treasure trove of ideas that influenced Supreme Court Justice Oliver Wendell Holmes and generations of jurists, scholars, and lawyers afterwards.

Meanwhile, much of Chafee’s thought finds modern-day expression in a variety of works, including in some of the following forthcoming books about our First Amendment freedoms.

Sedition & libel
This month the University Press of Kansas will release what promises to be a must-have book for anyone interested in the history and law of free speech.  I refer to New York Times v. Sullivan: Civil Rights, Libel Law, and the Free Press, edited by the late Kermit Hall and completed by Professor Melvin Urofsky.   Anyone who has read Hall’s splendid 2002 article, “Cultural History and the First Amendment: New York Times v. Sullivan and its Times” (in Constitutionalism and American Culture, from the University Press of Kansas), will surely savor this book.

The book, part of the acclaimed Landmark Law Cases and American Society series, places a new emphasis on this iconic case. Whereas Anthony Lewis’s book on the case, Make No Law (Random House, 1991), championed freedom of the press, here the authors provide a rich account of the civil rights and Southern legal culture. With concise accuracy, they convey to readers the urgency of the civil rights movement and the vitriolic anger it inspired in the Deep South. Given the many talents these two historians bring to their effort, the book promises to place this landmark case in a new and enlightening frame.

On a related front is another forthcoming book, this one by Sarah Sorial, an ARC post-doctoral research fellow at the University of Wollongong in Australia. The work is Sedition and the Advocacy of Violence: Free Speech and Counter-Terrorism (Routledge, November 2011). The author employs the theoretical framework of “speech act theory” to analyze various legislative frameworks and cases pertaining to sedition or the advocacy of violence and the issue of freedom of speech. The resulting analysis of the relation between speech and action hopes to clarify confusion over the contested status of speech that advocates violence as a political strategy. This account, the publisher adds, “reflects an understanding of philosophical issues about both the nature of freedom and speech and how these issues can be applied to concrete legal problems.”

Academic freedom
Of special note are two forthcoming books by Dean Robert Post of Yale Law School, who has published many thoughtful and influential articles on free speech and has edited Censoring and Silencing (Getty Research Institute, 1998).

First there is For the Common Good: Principles of American Academic Freedom (Yale University Press, September 2011), a book Post co-authored with University of Illinois Law Professor Matthew W. Finkin.

This book, says its publisher, “offers a concise explanation of the history and meaning of American academic freedom and it attempts to intervene into contemporary debates by clarifying the fundamental functions and purposes of academic freedom in America. [The authors] trace how the American conception of academic freedom was first systematically articulated in 1915 … and how this conception was in subsequent years elaborated and applied.”

Thereafter, Post and Finkin discuss the “four primary dimensions of academic freedom: research and publication, teaching, intramural speech, and extramural speech. They carefully distinguish academic freedom from the kind of individual free speech right that is created by the First Amendment.” In the end, the authors conclude “that academic freedom protects the capacity of a faculty to pursue the scholar’s profession according to the standards of that profession.”

In his other book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press, January 2012), Post argues that the prevailing theories of free speech are inadequate to “create and preserve the expert knowledge that is necessary for a modern democracy to thrive.”

Post develops a theory of First Amendment rights that “seeks to explain both the need for the free formation of public opinion and the need for the distribution and creation of expertise. Along the way he offers a new and useful account of constitutional doctrines of academic freedom. These doctrines depend both upon free expression and the necessity of the kinds of professional judgment that universities exercise when they grant or deny tenure, or that professional journals exercise when they accept or reject submissions.”

Both books are certain to elevate the discourse and prompt debate, which is always welcome in the First Amendment marketplace of ideas. (This January the University of Washington Law School will host a program on Democracy, Expertise, and Academic Freedom and the Washington Law Review will later publish a symposium on the book.)

Hate speech
Three other forthcoming books all address, in differing ways, the always-controversial topic of hate speech. The first book is a collection of 26 contributions edited by Michael Herz (Cardozo Law School) and Peter Molnar (Center for Media and Communications Studies) and is titled The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press, January 2012). Contributors include such notable figures as Floyd Abrams, Ronald Dworkin, Nadine Strossen, Monroe Price, the late C. Edwin Baker, and Robert Post. They consider whether it is possible to craft “carefully tailored hate speech policies that are cognizant of the varying traditions, histories, and values of different countries.”

The next book is by political science Professor Erik Bleich (Middlebury College): The Freedom to Be Racist?: How the United States and Europe Struggle to Preserve Freedom and Combat Racism (Oxford University Press, September 2011). The book examines the conflict between freedom and racism. It doing so, it  explores “policies that the United States, Britain, France, Germany, and other liberal democracies have implemented when forced to choose between preserving freedom and combating racism.” This comparative historical approach “reveals that while most countries have increased restrictions on racist speech, groups and actions since the end of World War II, this trend has resembled a slow creep more than a slippery slope.” Ultimately, argues Bleich, “the best way for societies to preserve freedom while fighting racism is through processes of public deliberation that involve citizens in decisions that impact the core values of liberal democracies.”

The third entry in this field is by communications Professor Brian Winston (Lincoln University). In A Right to Offend: Free Expression in the Twenty-first Century (Bloomsbury, May 2012) Winston sets out to articulate “an account of the current state of freedom of expression in the Western World.” He analyses the most pertinent cases of conflict during the last two decades, including the fatwa against novelist Salman Rushdie and the furor over the Muhammad cartoons published in Denmark, and examines the cultural, legal and journalistic aspects of each case.

Though it came out earlier this year, another book in this area that is well worth the read is Extreme Speech and Democracy (Oxford University Press), edited by Ivan Hare (Barrister at Blackstone Chambers) and James Weinstein (Arizona State Law School).

Blasphemy & obscenity
Originally they were cousins — blasphemy and obscenity. That is, both forms of expression were judged through the lens of either the hierarchy of the Church of Rome or through that of the guardians of the Church of England, both of which were intolerant of the attacks on their power. (See Leonard Levy, Blasphemy, University of North Carolina Press, 1993, pp. 297-319.) On the blasphemy side of the constitutional equation, the issue has not received much judicial attention since 1952, when in Joseph Burstyn, Inc. v. Wilson the Supreme Court turned a deaf ear to the idea of the continued viability of blasphemy laws.

With the advent of the Muhammad cartoons controversy that began after 12 editorial cartoons were published in a Danish newspaper in 2005, the subject is back in the news and on lawmakers’ minds — at least abroad.  Now enter The  Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights (Continuum, March 2012) by Austin Dacey.  The author is the representative to the United Nations’ International Humanist and Ethical Union and an instructor of humanities at the Polytechnic Institute of New York University.

In ancient times blasphemy, the failure to respect the divine, was a mortal offense. In an age of human rights, contends Dacey, blasphemy is tantamount to a failure to respect persons, an insult leading to defamation, and a form of advocating religious hatred. “The criminalization of this personal blasphemy,” says Dacey, “has been advanced at the United Nations and upheld by the European Court of Human Rights, which has asserted it as a universal, a right grounded in respect for religious feelings.” The Future of Blasphemy “demands that we grant each other equal standing in the moral community, not that we never offend. Politically, respect for citizens requires a public discourse that is open to all viewpoints.”

Going beyond the question of free speech versus religion, the author defends an ethical model of blasphemy. “Controversies surrounding sacrilege,” argues Dacey, “are contests over what counts as sacred, disagreements about what has central, inviolable, and incommensurable value. In such disputes over the sacred, each of us, secular and religious alike, has equal right to speak on its behalf.”

How much traction, if any, such claims regarding alleged spiritual “harm” will get remains to be seen. Though blasphemous expression can still cause a stir in the United States — witness the 1989 flap over artist Andres Serrano’s “Piss Christ” and Sens. Al D’Amato’s and Jesse Helms’ railings against it — such controversies are deemed to be left best to a robust public debate. As for the idea of “personal harm,” that idea is likely to fare no better than similar claims made by some feminists concerning pornography.

Speaking of which …

Ever since Katherine MacKinnon and Andrea Dworkin leveled their attacks on pornography, the subject of sexual expression and the First Amendment has been one of some contention among liberals. Against that backdrop and more, comes a new book, Obscenity and the Limits of Liberalism (Ohio State University Press, December 2011) edited by Loren Glass (Department of English, University of Iowa) and Charles Williams (doctoral candidate, American Studies, University of Iowa).

The publisher’s description of this collection of essays notes: “Over the course of the nineteenth century in both Europe and the United States, the state usurped the traditional authority of the church in regulating sexual expression and behavior. In the same century philosophers of classical liberalism identified that state function as a threat to individual liberty. Since then, liberalism has provided the framework for debates over obscenity around the globe.”

Liberalism, however, has come under siege, the description goes on to say, “from postmodern thinkers skeptical about its andro- and ethnocentric assumptions” on one hand, and from “religious thinkers doubtful of the moral integrity of the Enlightenment” on the other. “The principal challenge for those who conduct academic work in this realm is to formulate new models of research and analysis appropriate to understanding and evaluating speech in the present-day public sphere.”

The essays in the book, then, “put recent developments into historical and global contexts and chart possible futures for a debate that promises to persist well into the new millennium.”

Freedom of assembly
There are relatively few books on freedom of assembly. Last year, however, Prometheus Books published a welcome collection of materials on the subject edited by Professor Margaret M. Russell (Santa Clara Law School) and titled  The First Amendment: Freedom of Assembly and Petition: Its Constitutional History and the Contemporary Debate. Now comes a full book on the subject by Professor John D. Inazu of Washington University Law School. The book is Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, January 2012).

Though the right of assembly is core to many of the most important social movements in American history — abolitionism, women’s suffrage, the labor and civil rights movements, gay and lesbian rights — courts today prefer to speak about the freedoms of association and expression. But for Inazu, “the right of ‘expressive association’ undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being.” With that as his conceptual backdrop, Inazu further argues “the forgetting of assembly and the embrace of association lose sight of important dimensions of our constitutional tradition.” For a sample of the book, see Inazu’s article in 84 Tulane Law Review 656 (2010).

“We must do more,” Zechariah Chafee counseled in his famous book, “than remove the discouragements to open discussion. We must exert ourselves to supply active encouragements.”

One of the ways we do that is by discussing and debating ideas about free speech, even those ideas with which we disagree. If that is the measure, then the forthcoming crop of books mentioned above should give us all an opportunity to open our minds.

Or as Chafee put it: “Give your mind sea room.”

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