Beyond the First Amendment: The Politics of Free Speech and Pluralism by Samuel P. Nelson
Johns Hopkins University Press, 2005
Speak No Evil: The Triumph of Hate Speech Regulation by Jon B. Gould
University of Chicago Press, 2005
||Mark A. Graber
||The Journal of Politics
|Date accepted online:
|Published in print:
||Volume 68, Issue 3, Pages 744-755
Scholars seeking to avoid the problem of diminishing intellectual returns when writing on the First Amendment adopt one of two strategies. The first is to focus on less researched free speech problems, eschewing traditional issues associated with subversive advocacy for more contemporary matters concerned with new expressive technologies. The second is to place greater emphasis on the causes and consequences of different free speech practices, eschewing normative analysis of First Amendment rights for empirical analysis of free speech politics. Samuel P. Nelson's Beyond the First Amendment: The Politics of Free Speech and Pluralism is a nice effort to explore free speech issues not covered by the First Amendment or constitutional law. Jon B. Gould's Speak No Evil: The Triumph of Hate Speech Regulation is an even more successful analysis of the campus politics responsible for hate speech codes and the failure of litigation to even slow down the proliferation of these measures.
Professor Nelson's study calls for "renewed political debates about the meaning and scope of freedom of speech in contexts of private power relations, non-state institutions, workplaces, the family, and international relations." He correctly notes that these matters cannot be analyzed within any constitutional law framework. Beyond the First Amendment points out that whether Americans may be sued in foreign countries for defamatory material published on the internet will be decided by treaties negotiated by American diplomats, not cases adjudicated by American courts. The First Amendment plays only a peripheral role when international agreements must be reached with countries that reject the holding of New York Times v. Sullivan (1964). While a constitutional law largely limited to forbidding state actions does not speak to whether private employers should tolerate religious speech in the workplace, legislators and employers considering appropriate accommodations will inevitably consider values that best justify a functioning system of freedom of expression. Still, Nelson astutely recognizes, scholars who analogize the workplace to the state risk mischaracterizing crucial issues. As he points out, "co-workers and employers do not have to settle these cases under the terms of the First Amendment" (180). Religious expression that must be tolerated by the state need not be tolerated by employees in their workplace.
This effort to highlight important free speech issues in areas that are not governed by the First Amendment offers a particularly promising avenue for political scientists interested in American constitutionalism. Doctrinal scholarship is dominated by law professors who have special training in making legal arguments. By comparison, the constitutional issues that arise outside of constitutional law discussed in Beyond the First Amendment require the sort of special training in political theory and public policy that marks education in the social sciences. Inspired by Professor Nelson-and some speculations by Keith Whittington-constitutional scholars in public law might begin developing a theory of constitutional ethics that provides appropriate norms for resolving those numerous constitutional questions that are not questions of constitutional law. First Amendment scholars have long recognized that a functioning system of free speech requires private cooperation as well as government forbearance. Professor Nelson provides a good introduction to how that complete system might function with a citizenry committed to the values enshrined by the First Amendment.
Beyond the First Amendment falls short of delivering fully on these important insights by failing to go far enough beyond the First Amendment. Professor Nelson is correct to note that "(f)or most of the twentieth century, state interference was the primary threat to freedom of speech" (ix), but as later chapters recognize, this insight has been made within conventional legal theory. Many academic lawyers, most notably Owen Fiss and Cass Sunstein, are challenging claims that government best contributes to a functioning system of free speech by leaving the market-place of ideas entirely unregulated. At least half of Beyond the First Amendment makes fairly conventional legal arguments against the marketplace of ideas metaphor and for a more egalitarian interpretation of constitutional free speech rights. Although the relevant chapters are well-written and intellectually sound, they do not substantially improve upon existing critiques of 1960s free speech jurisprudence. Worse, readers exposed to the lengthy discussions of the constitutional law of free speech may forget that the author has promised a work on issues not covered by constitutional law, and not a work offering an alternative understanding of constitutional law. One consequence of the weight of arguments in Beyond the First Amendment is that the discussion in the final chapter of free speech claims that cannot be analyzed under either traditional First Amendment analysis or the revisionist analysis professed by Fiss seems more an afterthought than the central concern of the work.
Speak No Evil is better focused in its exploration of the politics of campus free speech fights. While other scholars have offered more sophisticated analyses of the doctrinal issues associated with whether public institutions may regulate hate speech, Gould's discussion of the reasons many universities adopted campus speech codes meets the highest political science standards. Two conclusions are of particular importance. First, Speak No Evil documents that judicial decisions have had little impact on the spread of hate speech codes. If anything, institutions of higher learning were more likely to adopt restrictions on insulting speech after courts had made clear that most campus codes were likely to be declared unconstitutional. "Rather than settling the matter of college hate speech regulation," Gould documents, "the court decisions were ignored, evaded, and resisted" (8). Second, the persons primarily responsible for the codes were university administrators "acting on instrumental motives," most notably a perceived need to make "symbolic responses to racial incidents on campus" and remaining "within what top officials saw as the mainstream of higher educational administration" (8). Critical race theorists, typically more interested in other matters, usually had little influence on the decision to adopt speech codes and even less influence on how they were implemented. That administrators concerned with pacifying particular groups played a greater role than minority rights advocates in the framing and implementation of campus codes may explain their tendency to ensnare drunken frat boys rather than more committed public racists.
The judicial failure to stop the spread of campus speech codes offers an important codicil to Professor Gerald Rosenberg's insistence that courts, acting without adequate support from other institutions, cannot effect liberal constitutional change. Gould, a Rosenberg student, demonstrates that courts, under similar conditions, are no better vehicles for effecting conservative constitutional change. As was the case with southern school officials in the wake of Brown, college administrators had no incentives to respond to court decisions ruling that practices favored by crucial constituencies were unconstitutional. While massive resistance has not taken place in the academy, little effort has been made to conform speech policies to legal decrees. At most, Gould observes, hostile court decisions have led campus administrators to rely more on informal proceedings for sanctioning hate speech. These findings of judicial weakness, combined with Martin Sweet's study suggesting that conservative decisions outlawing minority set asides in contracting have not changed local practices, suggest that the Roberts Court may have less of an impact than liberals fear in many areas of constitutional law. Conservative court decisions, Speak No Evil indicates, will not dramatically change behaviors in urban areas and universities that are still largely controlled by political liberals.
Professor Gould's study also makes an important contribution to the growing concern with the Constitution outside of the courts and popular constitutionalism. Previous scholarship emphasizes the important roles legislative and executive officials play in forging constitutional meaning. Speak No Evil highlights the crucial role of nongovernmental actors. "The essential arbiter for legal meaning is civil society and its institutions," Gould writes, "which themselves construct constitutional law." Although the law as handed down by justices has declared that persons may engage in hate speech and that law has not been contested by elected officials, the American people by and large have declared that racist speech is beyond the pale. Formal punishments may be legally banned, but both universities and other institutions in civil society provide substantial informal punishments for any person who violates written or unwritten speech codes. Gould notes that "the prevailing norm now is to quash hate speech, even if in extra-judicial settings" (8). The forms of campus expression have changed in the past decades, as have ethnic comedy and political campaigning. If, following Professor Nelson at his best, we understand freedom in terms of what people feel free to express, then Americans at present are not free to make racial insults.
Combined, Professor Nelson and Professor Gould provide us with a vocabulary for thinking about the status of free speech on American campuses and with reasons for being concerned about the health of free speech in the academy. Beyond the First Amendment highlights how most crucial questions in institutional settings concern the value that ought to be placed on certain expressions rather than the legal right to engage in that expression. Speak No Evil highlights how crucial free speech questions on campus are increasingly decided by administrators more concerned with fundraising and placating students than with establishing a climate in which challenges to the status quo, including weak forms of gender and racial equality, may be freely expressed. These problems transcend hate speech as the academy is being transformed from places of higher learning to research universities aimed at spurring economic growth. Academic administrators whose primary goal is fundraising and constituency control are bad for the First Amendment, even if their appointment does not violate any principle of constitutional law.