The Free Speech Century

Edited by Lee C. Bollinger & Geoffrey R. Stone

Oxford University Press, New York, 376 pages, $21.95

From its adoption in 1791 until 1919, the free speech guarantee of the First Amendment of the U.S. Constitution was largely dormant. During World War I, however, it sprung to life in response to the federal government’s program to stifle dissent against the war. Passing judgment on that program, the Supreme Court began to decide cases that have since elevated the free speech guarantee to a special place in our democracy.

In commemorating the centennial of this emergence, editors Lee C. Bollinger and Geoffrey R. Stone have produced a powerful book that analyzes both the evolution of free speech jurisprudence and the future challenges of this signature constitutional right, which is globally recognized as quintessentially American.

The book is arranged into sixteen chapters, each authored by a leading constitutional scholar. Written primarily for lawyers, the book analyzes the controversies that have transformed the first amendment’s significance, discusses the historical events that have affected its development, examines the luminaries who have provoked thought, discloses surprising insights that have arisen from campaign finance case law, explains how the first amendment has influenced other constitutional democracies and dissects the misconceptions that plague current disputes over free speech rights on college campuses. Given the stature of Bollinger and Stone, the editing of the book is predictably excellent.

In the introduction, Bollinger sets the stage for the narrative by observing that freedom of speech is more than just a mere legal principle. It is a part of “our national identity, and in so many ways we have learned to define ourselves as a people through the process of creating the principle itself.”

Part One of the book addresses “The Nature of First Amendment Jurisprudence,” and includes chapters written by Vincent Blasi, Frederick Schauer, Laura Weinrib and Heather Gerken.

Blasi’s superb chapter examines “Rights Skepticism and Majority Rule at the Birth of the Modern First Amendment.” The author analyzes the central roles played by three federal judges–Learned Hand, Oliver Wendell Holmes, Jr., and Louis Brandeis—in the early development of free speech doctrine. Perceptively, Blasi traces the different intellectual paths these judges followed in elevating free speech to “fundamental right” status. In so doing, he observes that all three possessed “a well-developed regard for majority rule” and espoused “judicial commitments” that both “denied the existence of natural rights” and treated “positive rights” as limited. For these seminal judges, ruling that “fundamental rights trump majority preferences” was “a heavy lift.”

Entitled “Rethinking the Myth of the Modern First Amendment,” Laura Weinrib’s chapter describes how progressives distrusted the courts to protect dissenters in the early 1900s. She posits that, to understand how the modern free speech guarantee ultimately prevailed, “we need first to understand the change in attitude among the advocates and litigants who chose to pursue their free speech agenda in the courts.” In surveying those early advocates and litigants, she examines the evolution of attitudes of (among others) the progressive American Civil Liberties Union and the conservative American Bar Association, and how those organizations influenced the development of free speech doctrine between 1920 and 1950. This historical analysis provides important context, as it shines a useful light on the non-judicial actors who influenced the first 30 years of ”The Free Speech Century.”

Part Two analyzes “Major Critiques and Controversial Areas of First Amendment Jurisprudence,” and includes chapters written by Floyd Abrams, Lawrence Lessig, Robert Post, David Strauss, Catherine MacKinnon and Cass Sunstein.

The most evocative of these is “Citizens United: Predictions and Reality,” by Floyd Abrams. This chapter analyzes the controversial 2010 case, Citizens United v. Federal Election Commission, in which the Supreme Court applied broad first amendment protection to political speech, holding “that corporations (and, implicitly, unions) could not be limited in their expenditure of money used to advocate the election or defeat of a candidate for federal office.” In Citizens United, Abrams, the preeminent first amendment litigator and scholar, argued on behalf of the Senate Majority Leader, Mitch McConnell, who asserted that limitations on corporate spending were unconstitutional.

Abrams points out that those who favored limitations on corporate spending in federal elections repeatedly predicted that, if such limitations were eliminated, a new era in corporate spending would dominate election outcomes. According to Abrams, this prediction was erroneous. Utilizing records of the Federal Election Commission through the 2016 election cycle, Abrams argues persuasively that the fears expressed about corporate dominance of the political process as a result of Citizens United “were not only overstated but also simply unsupportable.” To prove his point, Abrams demonstrates that the total amount of money donated by individuals and labor unions to super PACS was over twelve times higher than the total amount donated by corporations.

In recent years, the issue of whether outside speakers should be permitted to deliver speeches on college campuses is a recurring controversy, one that President Donald Trump has promised to remedy with an executive order. In addressing this issue, Robert Post contends that universities “are not public fora.” According to Post, speaker invitations should be “justified by the university’s twin missions of research and education,” and that “universities betray their fiduciary responsibilities to the extent they expend resources on speakers who fail to serve these missions.” As such, “content and viewpoint discrimination, as well as judgments of value, are acceptable in universities, so long as they serve educational and research purposes.”

Part Three discusses “The International Implications of the First Amendment,” with chapters written by Albie Sachs, Tom Ginsburg, and Sarah Cleveland.

Writing about the “first-ness of the first amendment,” Sachs, a former justice of the South African Constitutional Court, discusses how the American first amendment influenced the concept of free speech under the new democracy led by Nelson Mandela.  One telling insight comes from a 1994 discussion Sachs had with Justice Frank Jacobucci of the Canadian Supreme Court, who explained to the South African that American judges consider the government to be “the foe that needed to be guarded against, not the friend that had to be prevented from taking the wrong steps.”

Part Four covers “New Technologies and the First Amendment of the Future,” and includes chapters written by Emily Bell, Monika Bickert and Tim Wu. This portion discusses the ways in which technology companies have failed as publishers, examines the defining boundaries of free speech on social media and explores whether the scarceness of the attention of listeners in an age of information overload has rendered the first amendment obsolete. In analyzing the drastic changes wrought by technology companies and social media on the dissemination of information over the past 20 years, these chapters raise questions about the future relevance of and the challenges to the free speech guarantee.

“The Free Speech Century” has been bookended by government attacks on its critics. Mindful of the admonition of Justice William O. Douglas, who observed that “restriction of thought and speech is the most dangerous of all subversions,” this excellent book takes stock of the free speech guarantee as it enters its second century. In the words of editor Bollinger, “when the sovereignty resides in the citizenry, then there can be no place for the State to tell the people what they can and cannot say or hear.”

Jeffrey M. Winn is an attorney with the Chubb Group, a global insurer, and serves as the secretary to, and a member of, the executive committee of the New York City Bar Association.