by Ivan Hare and James Weinstein (eds). Oxford: Oxford University Press, 2009. 500pp. Hardback. $175.00/£80.00. ISBN: 9780199548781. Paperback. £24.99. ISBN: 9780199601790.
Reviewed by Patrick Lynn Rivers, Department of Visual and Critical Studies, The School of the Art Institute of Chicago. Email: privers1[at] saic.edu.
EXTREME SPEECH AND DEMOCRACY is an up-to-date and vital reference source on the parameters of speech deemed acceptable by democracy. James Weinstein and Ivan Hare, editors of this very extensive (and lengthy) volume, largely and clearly frame the book as a matter of free speech as a marker of democratic verve, on the one hand, versus some form of censorship that tends to curb democratic practice on the other hand. In terms of scope, Hare and Weinstein are broadly comparative, without the very narrow sense of “comparative” understood by a scholar like Carolyn Tyjewski. Methodologies in the book vary but tend towards a privileging of case law. (The case law grounding is demonstrated by the twenty-plus pages of tables guiding the reader through cases, legislation, conventions and international instruments cited in the book.) That said, however, the cases almost always serve as a point of departure for more sociolegal considerations, even the sociolegal perspectives of a playwright and social psychologists in some chapters, though a few more contributors not situated within law schools or similar academic units would have added more dimension. The reader new to the topic will benefit from the early parts of the book serving as a kind of primer on the topic, which operate upon the (expected) free speech-censorship axis. More satisfying to the specialist, later parts of the book move beyond this axis by injecting difficult cultural considerations into the mix.
The free speech-censorship axis prompts Hare and Weinstein to use their introduction to hearken back to speech values espoused by US founders, and to implicitly position these speech values as democratic norms next to, as well as against, stricter regulatory regimes elsewhere, especially in Europe. This line is very proximate to the line of argument reproduced in the first part of EXTREME SPEECH AND DEMOCRACY, which is the primer on speech and democracy. The primer covers expected ground in historical and contemporary perspectives: speech regulation in the US (with its rejection of proportionality and content limitation), speech regulations shaped by international and regional rights instruments as varied as the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the African Charter on Human and Peoples’ Rights. Moving beyond this primer, part two of the volume offers insight on speech and democracy by delving into more philosophical – more philosophical, not necessarily philosophical – questions. For example, C. Edwin Baker uses his contribution to relate “speaker autonomy and state legitimacy.” Embedded in Baker’s article is an exploration of [*518] autonomy as concept, which is interesting, useful. Similarly, Steven J. Heyman ponders whether or not “public hate speech” should not just be allowed but also “protected because of its political character.”
But for a reader like myself deeply invested in the cultural and political questions that might be raised by scholars within and outside sociolegal studies, and cultural studies of law in particular, taking the free speech-censorship question in different but not always in provocative ways moves me only up to a certain point. The most intriguing and difficult questions come when we do not necessarily have case law to support us as law and the cultural landscape in which it finds itself face the realities accompanying change. EXTREME SPEECH AND DEMOCRACY proves to be most engaging, and exciting, to me, when its contributors take on topics like religion, gender, race, and difference, particularly in Europe where these matters are highly contemporaneous, and urgent. Chapters most directly engaging culture in the broadest sense are in parts three through five of EXTREME SPEECH AND DEMOCRACY, with part three focussing on “incitement to religious hatred and related topics,” part four on “religious speech and expressive conduct that offend secular values,” and part five on “incitement to, and glorification of, terrorism.”
Three contributors in parts three through five notably center on gender and sexuality. These contributors adeptly walk the reader through the legal matters, but they also left me with a sense of intrigue as to how the law wrangles with and resolves challenges involving politics, culture, and change. Carolyn Evans’ article entices by, for example, methodologically engaging the constructivist notions critical race theorists like Kimberlé Crenshaw and Ian Haney-Lopez brought to the fore in the 1980s and 1990s. Specifically, Evans historicizes gender as construct to think about the ways that the extreme speech of religious leaders curtails the agency of women by, for example, prescribing sexual expression, or dress (which, of course, may itself be a form of sexual expression). (She presents this as “religious,” but she is really thinking about cultural conflict between Judeo-Christian Europe and its recent Islamic immigrants and converts, which, of course, has racial dimensions.) While a “liberal model” is closely aligned to, as Evans characterizes it, “democracy and political equality (with political equality being closely linked to autonomy),” the “religious model” understood by Evans is “conservative” and “institutional” as it identifies “speech as an element of a relationship with the divine.” In any event, neither model adequately captures the subject position of women, or the most effective means of agency for women, as Evans points out. Evans cleverly deploys what is basically the intersectional legal analysis of Crenshaw and critical race theory to start to map how religious women might utilize agency approximating secular gender norms and how secular political entities might further the agency of religious women. And the strategies for religious women that Evans sketches are flexible enough to accommodate religious women with varying degrees of faith and the larger objectives of secular states seeking to advance the interests of all women. [*519]
Along these lines, working through complexities where Europe in particular and its laws meet sex-gender-sexuality, two other contributions to EXTREME SPEECH AND DEMOCRACY, by Dominic McGoldrick and Ian Leigh, seek their own “balance.” In the first of the two chapters, Dominic McGoldtrick writes about “extreme religious dress” in the form of the headscarf-hijab. This article of clothing, as McGoldtrick contends, constitutes “part of broader questions.” Namely: “How do people who disagree over profoundly different matters live together and will this necessarily involve some limited, but positive, accommodation in the public sphere?” For McGoldtrick, the new context in which the headscarf-hijab leads to conflict requiring a new ability to be “context-dependent,” where justice is more contingent, especially culturally contingent. This leads McGoldtrick, not unlike Carolyn Evans, to pay attention to intersections where sex, religion, and ethnic origin figure. McGoldtrick, however, seems unable to embrace the flexibility he advocates. Towards the end of the chapter, he becomes a bit Eurocentric, where old European values come to the fore. Old Europe, here, conditioning a worldview leading McGoldtrick to write about an “equality” where the European “perspective” (of the Council of Europe and the European Union) is hierarchically above “a Muslim perspective” that “would not proceed from an equality of women perspective in the first place.” And this more conservative outlook even marks the contribution of Ian Leigh who, in EXTREME SPEECH AND DEMOCRACY, writes about homophobia but not in the usual way. Leigh critiques the new “normal” when homophobia and heterosexism are socially, and legally, unacceptable. Looking out for the rights of those critical of the new “normal” means not tolerating the silencing of the critics of the new “normal.” For Leigh, like McGoldtrick, “balance” seemingly asks more of the “Other” than those who in the case of sexuality are not members of a sexual minority.
As the contributors of the volume seek that elusive “balance,” they frequently turn to the US for direction. Amnon Reichman, for example, contrasts the US and Israeli hate regulatory models. Reichman’s comparison depends upon the bifurcation of the US template protecting speech and the Israeli regulatory archetype more likely to center the protection of human dignity but not as this might occur in, say, the Canadian context. He characterizes the former model as “innovative,” when specifically compared to others that understand rights to be arrayed without one or some right necessarily trumping others. Further, the US model rejects the limiting of certain classes of speech while the Israeli model can get quite specific in what speech is permissible and impermissible, but not necessarily as it might be done elsewhere. Reichman’s challenge to his readers lies in his plotting out how Middle Eastern and Israeli political realities shape its jurisprudence in relation to the realities and jurisprudence of other nations and international bodies. Eric Barendt similarly situates US and UK legal reactions to terrorism, except Barendt is wary of what he sees as overly burdensome restrictions on speech at the expense of democracy, leading him to at least in part give an approving nod to the US regulatory regime as it concerns [*520] speech and democracy. Wariness of the link between onerous restrictions (like the Terrorism Act 2006) and radicalization of terrorists causes another contributor, Tufyal Choudhury, to wonder whether the new legislation makes matters worse. Compelling as Reichman, Barendt, and Choudhury’s chapters are, however, I wish that they (especially the former two contributors) would have been a bit more forthwith in their chapters by underlining what the “balance” they seek is ultimately about: race, religion, national origin, their intersections, power, and change, not just the ebbs-and-flows of law.
Beyond this, there are two more parts of the book – one on Holocaust denialism and the other on media regulation. The three Holocaust denialism chapters really deserve to be the topic of their own volume, not just because wider (scholarly and nonscholarly) attention to the phenomenon is relatively recent, but because, in a comparative vein, Holocaust denialism can be quite instructive about other contexts where the problematic of speech and democracy converge. Hare and Weinstein’s volume, though, serves as a starting place, with its three chapters being largely introductory and providing an overview. Chapters on media regulation in EXTREME SPEECH AND DEMOCRACY are fine, but introductory, and without the contemporaneous energy and urgency of parts three through five that test our commitment to speech and multicultural democracy. Further, it is odd that the media regulation chapters, especially given that media self-regulation was discussed, did not engage with self-regulation as it might lead to conversations about neoliberalism, or even Foucault’s “governmentality” and those from diverse disciplinary groundings in conversation with Foucault’s “governmentality.”
© Copyright 2010 by the author, Patrick Lynn Rivers.