by Roland K.L. Collins and Sam Chaltain. New York: Oxford University Press, 2011. 446 pp. Cloth $34.95. ISBN: 9780195175721.
Reviewed by Rick A. Swanson, Department of Political Science, University of Louisiana–Lafayette.
Given the perpetual nature of conflicts over free speech, a book discussing the First Amendment is always timely. Offering their own contribution to this discussion are Roland K.L. Collins, the Harold S. Shefelman Scholar at the Washington School of Law and a fellow at the First Amendment Center, and Sam Chaltain, the past National Director of the Forum for Education and Democracy in Washinton, D.C. Their book titled We Must Not Be Afraid to Be Free: Stories of Free Expression in America provides overviews of various free speech issues through the use of behind-the-scenes narratives of the individual lives involved in landmark Supreme Court cases.
Collins and Chaltain lay out their goals in their prologue: “Our aim is to inform Americans about First Amendment Law by blending that discussion into rich narratives about some of those whose struggles came before the U.S. Supreme Court” (p.2). They clarify their “goal is to provide the reader with both the law of free expression and the life stories behind the law,” such that “our narrative approach tracks that of others such as Fred Friendly, Anthony Lewis, and Peter Irons” (p.2-3). The authors “confined our focus to political expression, except for Chapter 9 (defamation), although even that has its political side” (p.3).
Besides using the common thread of political speech, Collins and Chaltain have constructed a loose theoretical theme to tie the chapters together: freedom versus fear, as indicated in the title of their book. The title is a quote from an opinion by Supreme Court Justice Hugo Black, a First Amendment absolutist, at least on certain issues. The first chapter and the epilogue of the book “bookend our particular narratives between considerations of the life and legacy of one of American’s greatest champions of free speech,” Justice Black (p.2). Collins and Chaltain focused on Justice Black because “we thought the tension between freedom and fear could best be illustrated by recounting how Justice Black’s own beliefs were tested . . . This perspective arches over all our stories” (p.2). They ambiguously support either an absolutist or near-absolutist approach to the First Amendment, and primarily “side with the likes of Tom Paine, John Stuart Mill, Walt Whitman, and Justices Holmes, Brandeis, Black, Brennan, and Stevens” (p.2). Within each of their narratives, the authors frame the First Amendment question as one in which alternative visions of freedom versus fear compete. The authors state at the outset, however, that “we have tried not to let our (qualified) respect for Black color our explanation of the risks that arise when one sides, or claims to side, ‘absolutely’ [*115] with the text and ideal of the First Amendment” (p.2).
The first three chapters serve as background chapters. Chapter One uses the case of In re Anastapalo (1961), a bar admission case, as a vehicle to set competing approaches to free speech analysis: absolutism versus a balancing approach. Gitlow v. New Yor (1925), discussed in Chapter Two, serves to show how the Free Speech Clause was applied to the states through incorporation by the Fourteenth Amendment. Chapter Three then summarizes several justifications for free speech, mostly those offered by scholar Alexander Meiklejohn.
Next, Chapters Four through Ten each summarize and explain a specific area of free speech law, from its historical development through the current state of the law as of the volume’s publication. These discussions are heavily interwoven with stories of the people directly involved in landmark First Amendment cases in each of these areas of law. The narratives discuss the litigants and lawyers, the judges at every level who ruled on the cases, and the larger historical and political contexts within which the cases were decided. Chapter Four discusses prior restraints, focusing on U.S. v. New York Times (1971) and Daniel Ellsberg, the Defense Department employee who leaked the Pentagon Papers to the New York Times. Chapter Five discusses subversive speech and Eugene Dennis of Dennis v. U.S. (1951). Chapter Six chronicles the lifelong efforts of Robert L. Carter to help the NAACP defend the Freedom of Association. Chapter Seven reviews hate speech and the story of Edward Cleary, the lawyer who represented the defendant in R.A.V. v. City of St. Paul (1992). Chapter Eight explains the federalization of defamation law in Gertz v. Welch (1974) by detailing the effort by Gertz to sue Welch for libel. Chapter Nine examines symbolic speech, especially flag desecration, using the tale of Gregory Johnson of Texas v. Johnson (1988). Chapter Ten covers student speech, and tells the story of Mary Beth Tinker, of Tinker v. Des Moines Independent School District (1969). In each of these chapters, the narrative construct typically reads as a battle between good (freedom) versus evil (fear). With some exceptions, the litigants, lawyers, and/or judges fighting for First Amendment rights are generally portrayed as the heroes, with the opponents generally cast as the villains.
The book then has an epilogue that summarizes the “freedom versus fear” framework by analyzing excerpts from a media interview Justice Black gave toward the end of his career. Collins and Chaltain state that at this point in his life, Justice Black “had in some respects come to fear the freedom he once championed,” as shown by the fact that “he began to backpedal” on various free speech issues. Thus, Black’s interview responses were “colored more by fear than logic” and he was now “defending a cramped view of freedom of speech” (p.295) because “fear overcame him” (p. 302). They conclude that we should “live in a world where, to the greatest extent reasonably possible, First Amendment freedom is our default position” (p. 302). The epilogue is then followed by a twenty-page “Free-Speech Timeline.” [*116]
Recall the three goals the authors Collins and Chaltain gave: education in free speech law, rich informational narratives, and avoidance of personal bias in their analysis. The authors succeed tremendously at the first two goals. They provide excellent historical analyses and current overviews of the legal issues they discuss, and offer rich, interesting, and informative behind-the-scenes narratives that one would never get by reading only the cases themselves. In this regard, they do join the ranks of the authors they claim to be inspired by: Fred Friendly, Anthony Lewis, and Peter Irons. Moreover, although Collins and Chaltain’s work is geared toward a wide audience of citizens, students, teachers, lawyers, and judges, even the most well-read First Amendment scholars will likely find the narratives informative and fascinating. These personal accounts make the cases and issues come alive in ways that judicial opinions almost never do (nor can). Moreover, all readers other than perhaps First Amendment experts will learn something from the legal summaries. Although they sometimes explain legal concepts in a slightly oversimplified manner (presumably to reach a broader audience), the legal summaries are for the most part thorough, clear and accurate. Thus, anyone interested in learning more about the First Amendment will benefit greatly from this book.
Where Collins and Chaltain fail to some degree is in their declared effort to not let their own personal bias “color [their] explanation” (p.2). Their entire work is filtered through their “freedom versus fear” dichotomy. This framework appears in various degrees in the individual chapters, and makes its strongest showing in the epilogue. They seem to strongly imply, if not expressly declare, that anyone who disagrees with an absolutist approach to the First Amendment “fears change” (p. 302), yet they offer no psychological studies to support this claim. Moreover, even if their psychological theory were correct, surely not all fears are unreasonable. Put differently, just as a theory that all free speech questions involve a choice between “order versus chaos” would be oversimplistic , so too is the approach offered here. This bias sometimes seems to affect the content of chapters as well. For example, although the chapter on hate speech discusses some recent criticisms of First Amendment protection for hate speech, the chapter on subversive speech does not consider recent criticisms of First Amendment protection for the abstract advocacy of violence. The authors do ask “in our post 9/11 world . . . is Brandenburg a wise First Amendment policy?” (p.132), yet no mention is made of a competing social interest in, say, preventing nuclear terrorism. Instead, Collins and Chaltain summarily dismiss any security concerns by asserting “we must sometimes wager our all in the name of this experiment in freedom” (p.133). Some readers may be bothered by this seemingly dismissive attitude on a serious topic in which thoughtful, reasonable people can disagree. Regardless, a slightly more balanced journalistic discussion would have been more educationally helpful.
Despite any minor drawbacks in this book, however, I highly recommend it to any reader – from general public to First Amendment expert – interested in learning more about free speech law and the personal stories behind it. The book is fascinating and richly informative. [*117] Collins and Chaltain have written an excellent contribution to the genre of legal nonfiction that is geared toward a wide audience and that explains legal issues and cases by way of detailed, behind-the-scenes narratives. I foresee this book perhaps becoming a popular First Amendment read and frequently assigned as supplemental reading in undergraduate civil liberties courses or high school civics classes. My strong recommendation for the book comes with only the slight reservation that readers should be aware of the ideological bias of the authors and how that bias sometimes colors their discussions. Thus, if I were to use it I would anticipate supplementary lectures or readings presenting alternative views of the First Amendment. Even without such supplements, at the very least individual chapters can easily serve as springboards for further class discussions. Regardless of the audience or any minor caveats, however, any reader of this book will never again be able to consider the landmark cases discussed here without recalling into mind some of the intriguing personal stories behind the cases.
Brandenburg v. Ohio 395 U.S. 444 (1969).
Dennis v. U.S. 341 U.S. 494 (1951).
Gertz v. Welch 418 U.S. 323 (1974).
Gitlow v. New York 268 U.S. 652 (1925).
In re Anastapalo 366 U.S. 82 (1961).
New York Times v. United States 403 U.S. 317 (1971).
R.A.V. v. City of St. Paul 505 U.S. 377 (1992).
Texas v. Johnson 491 U.S. 397 (1988).
Tinker v. Des Moines Independent School District 393 U.S. 503 (1969).
Copyright 2012 by the Author, Rick A. Swanson