December 2002. Brown No Title.

Vermont Bar Journal

2002.

December 2002.

Brown No Title

BOOK REVIEWS

Eternally Vigilant. Edited by Lee C. Bollinger & Geoffrey Stone. Published by the University of Chicago Press, 2002, 316 pp., $35.00

Reviewed by David B. Brown, Esq.

Eternally Vigilant is a collection of ten well informed, mostly well considered, and occasionally imaginative essays by eminent First Amendment scholars and experts. The book also contains an introduction entitled a "dialogue" between the two editors, an epilogue utilizing the same dialogue formula, and one page summaries by the editors for each of the ten essays that function as headnotes. The collection was published in 2002, which led me to anticipate some sort of response to September 11, 2001. There is none, although comments by Professor Bollinger in both the introduction and epilogue, inadvertent or not, seem generally to suggest the challenge for a post-September 11th free speech jurisprudence.

The contributors to this collection, including the editors, seem to take as a given that First Amendment jurisprudence is something of a hodgepodge of theories and doctrines. This is not necessarily a reflection of the Court's incoherence, it is, rather, due to the diverse reach of First Amendment subject matter - political speech, pornography, media, broadcasters, commercial speech, campaign reform - that seems to call for varied, even contradictory, theories and doctrines.

Many of these essays deal with the search for the underlying rationale for giving special constitutional protection to speech - even though allowing such speech can often have widely acknowledged harmful societal effects (e.g., hate speech). Is speech worthy of special protection because it is necessary to our democratic process, as first claimed by Justice Brandeis? Is speech worthy of special protection because "a free marketplace of ideas" will broadly serve the important search for truth as indicated by Justice Holmes? Or is it because it is endemic to self-realization, as has been suggested by some contemporary commentators?

What then is the best rationale for constitutional speech protection? Or is there just one? Or does it matter? Among the contributors who choose one of these three rationales, most would seem to prefer some variation of Justice Brandeis's democratic process argument. Others believe that choosing one all-inclusive rationale is virtually impossible and the best one can hope for is to refine and prioritize the various doctrines. Still some seem to imply that it is fruitless to search for a rationale or even to prioritize.

Finally one contributor, Stanley Fish, believes that the search for a rationale is not only fruitless, but harmful. Professor Fish argues that all court decisions are inherently subjective and political and that the effort to deny or disguise this fact only leads to judicial distortion. Since this essay seems to challenge, if not refute, everything that comes before it (and after-wards), it is in some sense the culmination of the collection.

I think it is possible to sympathize with Fish's comments, and still not be able to resist the lure of the search for new doc-trine. Searching for patterns and meaning in the obscure and obtuse is, after all, a fundamental part of what we lawyers are trained to do. Trying to elicit an all-encompassing First Amendment rationale that to date has eluded the Supreme Court is just too much fun for many to resist.

Some of the essays in this collection seemed to have involved less forethought than others. A few reveal rather transparent political agendas, that, like Mr. Fish, I find perfectly acceptable - whether I hap-pen to agree with the political agenda is another matter altogether. Only Kent Greenawalt's essay entitled "Clear and Present Danger in Criminal Speech," which examines the counseling of criminal conduct, has a narrow but clear "utility" to the legal practitioner

All this variety means that one is unlikely to be impressed by all ten essays - or to state it positively, one is likely to be impressed with at least something. Sticking with the negative spin for a moment, I personally found the contribution from Frederick Schauer among the wanting. Schauer argues that because of the broad reach and popularity of...

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