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‘Eternally Vigilant: Free Speech in the Modern Era’ Lee C. Bollinger and Geoffrey R. Stone, eds. The University of Chicago Press 330 pages, $35 Rarely does a book come along that has as much to offer on a single subject as “Eternally Vigilant: Free Speech in the Modern Era.” Particularly with group efforts, such as this collection of essays, it is almost inevitable that there will be a couple — and often several — duds among the bunch, or at least a dismaying repetition of ideas. Such is not the case here. While the essays do vary in profundity (and, given the density of much of the writing, this is a welcome occurrence), each of the authors has something of value to contribute to debate on one of the most important, contentious and multifaceted issues we face today. The subtitle of the book is “Free Speech in the Modern Era” and, as might be expected, its focus is the First Amendment to the U.S. Constitution, in particular the First Amendment’s provisions for protection of freedom of speech and of the press. Its editors, Lee C. Bollinger and Geoffrey R. Stone, have made outstanding choices in this compilation and their fine introductions to each of the essays also serve as useful abstracts. The book begins and ends with a “dialogue” between the two editors, each of whom is an accomplished scholar in his own right. Bollinger is a professor of law and the president of the University of Michigan, and Stone is the Harry Kalven Jr. Distinguished Service Professor of Law and provost of the University of Chicago. Their opening dialogue stands on its own as a remarkably erudite contribution, while also setting the stage for the essays to follow. They begin with some general observations on the development of the First Amendment and then turn their attention to an issue that recurs throughout the book: the relative modernity of First Amendment doctrine. “Freedom of Speech and the Common-Law Constitution,” by David A. Strauss, is the first essay to follow Bollinger and Stone’s dialogue. Strauss argues that current conceptions of free speech are based less on the actual text of the First Amendment than on common-law developments over the course of the 20th century. This is an engaging thesis, and, certainly, an interesting analogue to the arguments over “original intent” that arise in this country whenever we are faced with an issue of constitutional significance. However, Strauss falls victim to the principal weakness that one comes across at times in this volume: a tendency to overargue a thesis, or stretch it to just beyond its logical (or relevant) limit. Here, Strauss comes to the conclusion that the text of the First Amendment is “essentially irrelevant” to present-day conceptions of freedom of expression. In support of this, he proposes “as a thought experiment, imagine forbidding any reference to the text or the original understandings; as long as the precedents could still be invoked, the operative law of freedom of expression would remain undisturbed.” That may (or may not) be true, but wouldn’t that be equally true for any legal tenet with an established line of precedents? In “Free Speech and Good Character,” Vincent Blasi, a professor at Columbia Law School and the University of Virginia, examines the three most prominent arguments for the high protection we give to freedom of expression: that the resulting “marketplace of ideas” (as propounded by Justice Oliver Wendell Holmes in his dissent in the landmark case Abrams v. United States) serves as a foundation for the search for truth, that it serves “as a means of achieving the civic education and participation” that are necessary for democratic government and because “the liberty to express one’s thoughts and to form them by unrestricted reading and listening is an essential attribute … of human autonomy.” To these three rationales Blasi adds an intriguing fourth argument: that a culture that provides for expressive liberty engenders among its citizenry “certain character traits such as inquisitiveness, distrust of authority, willingness to take initiative and the courage to confront evil” that are valuable not so much in and of themselves but because of their political and social benefits. According to Blasi, the free exchange of ideas will not provide for the ascendancy of truth and good political choices on its own as much as it will provide the environment necessary to produce men and women who have the wherewithal to question the status quo and fight the party line. Thus, for Blasi, dangerous ideas can only be defeated by strong people, not by “repressive laws.” The implications of this theory are manifold and profound. Even if partially valid, where does this argument leave laws against hate speech? From the banning of neo-Nazism by some Western European countries to our struggle in the United States over whether to bestow heightened punishment for hate crimes, Blasi’s thesis forces the critical question: Even if we might be willing to sacrifice some liberties to protect against speech or behavior that is generally agreed upon to be abhorrent, what if this scheme backfires, and, by suppressing such expression, we are actually weakening our society’s ability to effectively combat that which we find detestable? “Eternally Vigilant” presents a myriad of interesting perspectives, postulations and theories such as this, from Judge Richard Posner’s reformulation of the issue of freedom of speech into a series of equations (which, thankfully, he offers “as a heuristic … rather than as an algorithm for use by judges … .”) to Stanley Fish’s lambasting of liberal theories regarding freedom of expression (as well as of several scholars by name). Whether one agrees with a given author or not (and it is possible to do both with any of the essays), each has something to add. Overall, “Eternally Vigilant” is a thoughtful and thought-provoking book, consistently intelligent and, at times, brilliant. Richard J. Mollot, the communications manager for the New York County Lawyers’ Association, is an attorney and author.

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