by Steven J. Heyman. New Haven: Yale University Press, 2008. 320pp. Cloth $50.00. ISBN: 9780300114867.
Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer [at] fsc.edu.
This book, by Steven J. Heyman, Professor of Law at the Chicago-Kent College of Law, presents a theory of First Amendment jurisprudence which seeks to balance the sometimes inherent conflict between free speech and human dignity. To accomplish this, the author adopts a “liberal humanist” approach which seeks to balance concern for the human personality against broader concerns for free expression. Heyman then applies his theory to a wide range of current controversial issues such as hate speech, flag burning, abortion protests, and pornography in order to demonstrate how the balancing process would work in practice.
Part One, which consists of two chapters, considers the history of free speech jurisprudence in the United States. Chapter One explores the natural rights origins of the First Amendment covering the thoughts of such philosophers as Locke, Cato, and Blackstone. The chapter further explores the impact of these individuals on the thinking of Madison and the Federalists from ratification through the sedition controversies. Heyman finds that this “original” view of the First Amendment was that free speech was limited by the rights of others. In Chapter Two, Heyman looks at modern First Amendment jurisprudence which comes to view free speech issues as conflicts between individual and societal rights without any clear way to resolve the clashes. The famous views of Holmes and Brandies are the central focus of this chapter. Heyman sees this shift as problematic which leads to his proposed standard.
Part Two is then divided into four chapters which lay out Heyman’s rights based approach to the First Amendment. Under this theory, rights are based on respect for the human personality and each person’s right to self-determination. Heyman argues that the Framers understood free speech to be a natural right. Many of the problems associated with modern speech issues stem from straying from this view and can be resolved by returning to the roots of the right to free speech. As rights flow from a respect for human dignity, the limits on such rights become easier to define. One basic right of all man is the right to life and more broadly personal security. When speech endangers basic rights such as this, limitations are in order. This view is one with which it is hard to take issue. Heyman, however, takes a much broader view of basic rights. Another basic right he considers is the right of personality. This would include “unwarranted assaults on one’s mental and emotional well being” (p.54). Also included in the right to personality is freedom from invasion of privacy which is defined as “the right to maintain the integrity of one’s personality and inner life by preserving the boundary that separates them from other persons” (p.55). [*588] Heyman sketches the rights of personality as a continuum which ranges from rights to emotional tranquility and privacy to self expression through speech and conduct and then to image or reputation. Putting these into a “rights based” theory, the author explores not only the rights of free persons but also the rights of free persons to equality. While modern free speech jurisprudence often views liberty and equality as in conflict, Heyman views the two concepts as inseparably related. For Heyman, equality is tied to dignity, arguing that “to treat other persons as inferior or subordinate constitutes a denial of their worth as human beings.” It is with this focus that Heyman’s theory begins to take shape. In short, his liberal humanist theory is summarized as follows: “The same aspects that justify freedom of speech and thought also give rise to other fundamental rights, including personal security, personality, and full and equal membership in the community. In general, speakers have a duty to respect these rights. Conflicts between rights should be resolved in light of their relative place within the system of constitutional liberty” (p.78).
Accordingly, and most importantly, the author views the principal of content neutrality which is the core of modern First Amendment jurisprudence, as improper since much speech causes harm precisely because of its content. In Heyman’s view, content based restrictions should be allowable, and his approach set out to balance the value of the speech against the human dignity of the listener. Considering the breadth of the right to personality described above, this view would be a radical departure from the current view of the law.
Part Three is divided into five chapters, each exploring specific areas of disfavored speech and applying the author’s standard to resolve each conflict. Topics considered include subversive speech, incitement and threats, abortion protests, hate speech, and pornography. In applying the liberal humanist approach to these problems, a trend readily emerges. Where speech is directed toward the government or the public as a whole, it should be protected. On the other hand, speech that is directed at individuals or groups may often be regulated. Rather than look at content as the courts currently do, the touchstone of Heyman’s approach is the value of the human personality.
This approach advocated by the author has many benefits. Certainly it would provide consistency in an area filled with exceptions to the general rule of content neutrality. Accepting that content matters in considering the context of the speech in question could go a long way in resolving some of the thorny issues addressed above. On the other hand, determining exactly what is injurious to the human personality or the public interest opens up a whole new set of challenges. For example, in the chapter on subversive speech, Heyman considers cases dealing with the publication of classified material such as the Pentagon Papers. In applying his theory, he concludes that First Amendment protection should apply except in cases “where the defendant knew or clearly should have known that publication served no substantial public interest” (p.121). How one is to determine what the public interest is, especially whether it is substantial, is left unsaid. However, it is certainly not self-evident. In the examination of hate speech, Heyman [*589] argues that, contrary to the view of current courts, public hate speech should not be protected because it assaults the human dignity of its victims. However, he also contends that even political hate speech should not be protected “because it falls outside of a proper understanding of political debate” (p.179). In providing a basis for the scope of “proper political debate” the author looks to the International Covenant on Civil and Political Rights which, while valuable, is hardly a source based on the original intent of the Framers.
In sum, this book challenges the current state of free speech jurisprudence in American law by positing a theory which would protect most speech that challenges the government but limits much speech that attacks the rights of other people. In doing so, it is original and thought provoking and is sure to provide fodder for many fruitful discussions. It could be used in a range of undergraduate or graduate seminars dealing with civil liberties, civil rights, or equality issues. While many may take issue with the lines drawn, one does not need to agree with all of the conclusions in order to find utility in the approach of the author.
© Copyright 2008 by the author, Paul Weizer.