John Denvir. New York: New York University Press, 2010. 256pp. Hardcover. $45.00. ISBN: 9780814720141.
Reviewed by Brian K. Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu.
I am going to avoid making any jokes about the name of the author of this fine book, as tempting as it is. I suppose he has had a lifetime deflecting requests that he please “sing that song about West Virginia.” Wait, did you see how I did that? I said I was not going to make a joke, but then I slipped it in there while I was eschewing it, and got to foist a message upon you while taking advantage of my pulpit in the first paragraph of this review. In doing so, I assumed authorial prerogative, dragged the unsuspecting reader along through my lame attempt at humor, denied you the opportunity to protest my assumptions, gave myself the impression that I can do this again, and made us all worse for the wear in the end.
In this analogy, I am the president, you are the American people, my joke is my national security policy and posture, your silence is the First Amendment rights you no longer enjoy, and the consequences are dire for our democracy. If you are interested in hearing more, read John Denvir’s new book, FREEING SPEECH. Motivated by an academic’s attention to argument, and an activist’s desire for change, Denvir’s work presents the president as the beneficiary of expanded authority due to the ever-reaching aspirations of the Executive himself, assisted by a Supreme Court that has eroded the ability of the public to check the president. For Denvir, George W. Bush’s “Mission Accomplished” stunt – where the president landed in a jet on an aircraft carrier and boldly asserted victory in Iraq – symbolizes our present state of affairs: the president assumes broad authority, Congress rolls over, compelling tropes “shock and awe” (my words) the public and stymie the media, thus “transform[ing] American democracy for the worse” (p.7).
Following an Introduction that I found to be a bit hard to follow in places, seemingly because Denvir tries to surface all the relevant concepts at the outset, he moves efficiently through six chapters and an Afterword. One helpful element of the Introduction is the initial framework that Denvir lays out, classifying the Constitution in four ways: the text, the official version, the challenger, and the de facto mode. The first is probably obvious, what the Constitution actually says; the second is the conventional understanding of a provision, i.e. the received wisdom as fleshed out by courts and others; the third is some new way of thinking about a provision – not yet the norm but pressing hard in many cases; and the fourth is the meaning a provision assumes when there is no “official” (or even “challenging”) stance on the matter. Denvir uses these categories throughout the book as he details the emergence of the NSP and it serves as a [*357] useful frame for readers wondering how and why the Constitution is construed in so many ways. The book is a quick read (under 160 pages of text), especially for those already familiar with the debates and case law he considers, but it is effective at bringing together disparate areas of the law and highlighting mutually reinforcing effects of decisions across various domains.
Chapter 1 fleshes out what Denvir calls the “National Security Presidency” (NSP), which is essentially the argument for expanded Executive authority in matters of national security. Denvir develops this theoretical construct within the existing conception of the “imperial presidency,” or the steady accretion of power in the Oval Office throughout the 20th century. After the rather uncontroversial assessment that the attacks of September 11th “permitted the National Security Presidency challenger to blossom” (p.24), he spends the rest of the chapter discussing the arguments of those within the administration (e.g. Dick Cheney, David Addington), their handiwork (e.g. the OLC memos), and the general problem presented when an institution (not just an official) has grown in power, specifically the temptation of successors to adopt the same posture at the expense of the Constitution. If nothing else, he implies, the power sits there – dormant, but still potent. Indeed, even if President Barack Obama has not taken the same steps, he also has not expressly renounced this vision of the presidency and thus the NSP “remains alive and well to fight future battles” (p.32).
In a nod to Noam Chomsky (and Walter Lippmann before that), Chapter 2 attends to the “manufacture of consent,” wherein Denvir focuses on the significance of “presidential speech” in the construction and consumption of national security policy. The theme here is that “presidential speech is a part of the larger issue of government propaganda that has bedeviled democracy since the beginning of the twentieth century” and thus his book is essentially an effort to “counteract its distorting impact” (p.34). While many readers of this review might appreciate an historical context that reaches earlier than 1900, Denvir begins his discussion here because of his assertion that “Theodore Roosevelt was the first president to explore the power of presidential rhetoric addressed over the heads of Congress to the people” (p.35). And thus, following a review of the sloganeering and rhetorical props that have come out of the Oval Office over the last hundred years, with particular attention to Woodrow Wilson’s efforts to persuade the American people to enter World War I and George W. Bush’s“selling” of the invasion of Iraq (p.40), Denvir puts his finger on probably the central issue driving this phenomenon: the president, like any citizen, reserves the right to “speak” on matters of public concern – and as the only elected official chosen by the nation as a whole, he is obliged to try and use his position to persuade the nation to adopt his viewpoint. At the same time, the nature of the institution gives the Executive the ability to hide behind “classified” walls, obfuscate with impunity, demonize dissenters, and generally resist the robustness of open deliberation.
The points here are compelling, to be sure, and certainly the historical examples are appropriate. But one of the ironies of arguments about propaganda [*358] is that they can tend to veer toward propaganda themselves, particularly as they relegate the public to automatons and seem rooted in assumptions of false consciousness. Consequently, there is definitely the sense in this chapter that one who agrees with the president’s claims about executive authority has been duped because no rational and engaged citizen would accept such a constitutional construction; “consent,” to stay within his frame of reference, is of necessity “manufactured” rather than reached. Readers who nod their heads in agreement while reading Noam Chomsky will enjoy this discussion. Others will not.
Chapter Three provides a rather standard, casebook-style summation of the “rise and fall” of the First Amendment throughout the 20th century, with special attention to and celebration of the ways the Warren Court “created new First Amendment structural rights” (p.68) in cases dealing with freedom of assembly and freedom of the press. Those who teach or write about civil liberties probably will not get much out of this chapter, but readers without a background in the development of the First Amendment will appreciate the review. One problem with the chapter, however, is that while there is a clear presentation of the trajectory on the “rise” side of the doctrinal arc, Denvir’s discussion of the alleged “fall” is under-developed. In fact, in only a few pages, he attributes the diminishing of speech freedoms to the decisions made by the Burger and Rehnquist Courts, principally because the Warren Court gave us the “rise” with a construction of the First Amendment that supported broad political participation, but the Burger and Rehnquist Courts rendered the “official” First Amendment one that simply provided a “bulwark against government censorship” (p.78). Obviously the speech rulings of the Warren Court differed from those of its successors, and Denvir does try to flesh out the argument with more specific examples in Chapter Five, but I think speech scholars in particular will find this section of the book a bit breezy, especially as the Burger and Rehnquist Courts are treated as monolithic entities rather than collective bodies of individual justices with discrete and complex conceptions of the nature and purposes of free speech rights.
Chapter Four brings the threads together to warn us of the dangers of “Democracy in the Dark,” wherein the government successfully asserts its need for secrecy and where the press has diminished access to the information citizens need for responsible decision-making. The highlights here are Denvir’s examples – particularly the discussion of the “Pentagon Papers” case, the significance of Freedom of Information Act (FOIA) requests, and the development of the state secrets doctrine. At the end of the chapter, Denvir contemplates the emergence of the internet as a “new” form of media, though that really needed more attention at least somewhere in the book. Chapter Five advocates a First Amendment that “offers activists a realistic opportunity to do their job” (p.106) and laments, for example, the New York Police Department’s decision to deny permits for protesters and its reactions to the crowds that gathered to protest the invasion of Iraq in early 2003, the aftermath of the W.T.O. protests in Seattle in 1999, and government abuse of investigatory [*359] tactics allegedly in the service of national security. To correct matters, Denvir advises Congress to devise a statute that would “set out the constitutional parameters for investigations” (p.127), in the way the FOIA does, in order to give direction to various agencies and officials, deter presidential overreaching, and protect the rights of citizens.
Chapter Six takes on the Supreme Court directly and blames the judiciary for “condoning” the “constitutional takeover by the presidency” (p.131). With his focus primarily on the implications of the framework set forth in Justice Jackson’s concurrence in the “steel seizure” case, as well as the assumptions and intimations within the recent “enemy combatant” decisions, Denvir decries the Court’s refusal to reject the theory of independent presidential power and contends that, if the Court had brushed the president back from the plate (my metaphor), then “he would have an incentive to cooperate with Congress to provide a workable process that respects the role of both branches of government” (p.139). Following this, Denvir offers some policy fixes to the problems he has identified (e.g. broadening the doctrine of “standing,” engaging in a more “active” assertion of judicial review, and fixing the Supreme Court appointment process so that the Senate – and the public – might actually learn something about those individuals who have the opportunity to so significantly influence our rights and liberties.
Finally, there is Afterword where the author lays out his own “human rights constitution,” essentially a compilation of values and principles that he thinks are essential to genuine self-rule. This will probably strike most readers as somewhat odd appendage, not because the proposals are ill-conceived, but rather awkwardly presented and staged. At the same time, this kind of feature is an example of perhaps the greatest virtue of this book – its ability to provoke discussion. That a book lamenting our diminished freedom of speech has the ability to encourage more speech from its readers is a sign of a job well done.
You will find yourself talking to this book. I did. You might not agree with everything, even if you are on Denvir’s side of the aisle, but he throws out heaps of red meat and gives you plenty of material to contemplate. Consider for example his suggestion that Congress should “make it a felony for the president, the vice-president, and cabinet-level officials to make public false statements on material national security issues with knowledge or reckless disregard of their falsity” (p.54). That would be a great exam question, wouldn’t it? To be sure, he does not quite develop the proposal as much as one would like – and I would think it dead on arrival at the Supreme Court, even if some lower courts might play along for awhile – but that is the kind of free-thinking spirit one finds in this work. It has plenty of the traditional fare that one finds in a university press book, but it also steps outside the lines from time to time, to the benefit of those reading along.
But all books have their flaws, so let me briefly explain a few as I saw them. For one thing, while the book is certainly learned and the arguments are sophisticated, the references are scant [*360] and there is minimal engagement with the various secondary literatures that bear on these topics. For example, there are only ten pages of endnotes and a mere four pages of references for the entire book. Denvir is a lawyer by training, so it makes sense that he would focus primarily on legal materials, but in doing so he has omitted vast amounts of work in political science, history, public administration, and the like. His initial ruminations on the role of the Supreme Court in the Introduction, for example, should have at least attempted to involve the range of materials on judicial behavior that have consumed at least one subfield of political science for the last fifty years.
In the same vein, Denvir's argument is hard to swallow when one encounters statements such as this one: “Conservatives argue that every court ruling for individual rights is a defeat for democracy because presidents and legislators are elected while judges are not” (p.9). Certainly this is true of some conservatives, or perhaps some kinds of conservatives, but such an excessively general and remarkably imprecise assertion doesn’t do much to garner credibility at the outset. On the current Supreme Court, one can look to Justices Scalia, Thomas, and Kennedy for consistently libertarian streaks (i.e. emphasizing individual rights and liberties over government counter-claims) on a range of issues. Consider the recent attention to “property rights” (i.e. the “Takings” clause), the recent ruling “incorporating” the 2nd Amendment in the case dealing with Chicago’s handgun ban, the Court’s emphasis on speech rights (even if they were corporate speech rights) in CITIZENS UNITED v. FEC, the “right” to be free from having to buy government-mandated health care coverage growing out the grass roots in many states, and so on.
It is certainly the case that “conservative” is closer to “statist” on many issues (and William Rehnquist may have been more likely to make the argument Denvir outlines than Thurgood Marshall), but the book would be better with a cleaner calibration of terms. “Rights talk” is all across the political spectrum these days – albeit emphasizing different rights – and even in the domain of free speech jurisprudence, the “conservative” justices can be coded as being the most vigorous defenders of speech rights. (See e.g. KNOWLES, 2009; LICHTMAN, 2009; PINAIRE, 2008; VOLOKH, 2001.) Certainly Denvir can question the motives of the conservative justices, and so too can he wonder whether or not “free” marketplaces of ideas are really “free” in the Holmesian sense (see ABRAMS v. UNITED STATES), but it is not quite fair or consistent with the data to claim that the official understanding of the First Amendment held by the conservative Supreme Court “tilts heavily toward government authority and against open, informed public debate” (p.7) or that a majority of the current Supreme Court “presently supports the narrow official interpretation of the First Amendment” (p.10).
On a broader level, my final critique questions the staying power and present applicability of Denvir’s observations. I agree that the practices that have been established since September 11th have created a precedent that, in theory, any president could borrow upon in asserting [*361] the same sorts of authority one routinely saw coming from the Bush Administration. But, for the most part, the present occupant of the White House has avoided such an approach. Denvir is right to note that President Obama has not denounced the NSP, as mentioned above, but nor has embraced with open arms (even if he has maintained specific Bush policies) – which raises the question of whether we really have a National Security Presidency or did we just see two terms of a National Security President? In other words, how much of “the Constitutional War over National Security” (the book’s sub-title) was a war from 2001-2009 and how much is still to come?
On a different front, while Denvir is clearly distressed by what he sees as a failure of the American public (aided by Court decisions and Executive machinations) to sufficiently protest alleged national security initiatives during the George W. Bush years, President Obama is now the Commander in Chief and he seems to have no shortage of protesters! “Tea Partiers,” for example, do not seem to need to have their speech “freed” in any way; those in this movement have been remarkably aggressive in dissenting, pushing back, resisting, and generally engaging in precisely the “robust” expression that Denvir’s book tells us is lacking in America today. Denvir is clearly on the political left (the book is obviously, but not overwhelmingly oriented in that direction), so it could be that he is still reeling from the last administration, but as ironic as it may be, the author of FREEING SPEECH might just take some solace from the volume and repeating echoes of the political right’s signature line: “I want my country back!” Maybe we are seeing speech being freed right now.
Knowles, Helen. 2009. THE TIE GOES TO FREEDOM. Lanham, Md: Rowman & Littlefield.
Lichtman, Stephen. 2009. "Black Like Me." 114 PENN STATE LAW REVIEW 415.
Pinaire, Brian. 2008. THE CONSTITUTION OF ELECTORAL SPEECH LAW: THE SUPREME COURT AND THE FREEDOM OF EXPRESSION IN CAMPAIGNS AND ELECTIONS. Palo Alto, Ca: Stanford University Press.
Volokh, Eugene. 2001. "How The Justices Voted In Free Speech Cases, 1994-2000." 48 UCLA LAW REVIEW 1191.
ABRAMS v. UNITED STATES. 1919. 250 U.S. 616.
CITIZENS UNITED v. FEDERAL ELECTION COMMISSION. 2010. No. 08-205 (slip opinion).
© Copyright 2010 by the author, Brian K. Pinaire.