Fighting Words: Individuals, Communities, and Liberties of Speech.

• Author: Boyden, Bruce A.

I

In 1881, the citizens of Tombstone, Arizona, faced a discomfiting problem. Cowboys from the outlying areas of the city roamed the streets, cursing and yelling, shooting out lamps, and generally annoying the respectable businessmen of the community, who were not accustomed to tolerating the boisterous antics of social outcasts. The businessmen discovered a simple solution: They prevailed upon Virgil Earp and his brothers to kill three of the cowboys in a gunfight, popularly known as the "Gunfight at the O.K. Corral."(1)

Excesses like those that occurred in Tombstone have largely been brought to an end. No longer can local elites wield untrammeled power in order to suppress behavior they deem "offensive."(2) The Bill of Rights now applies to the lives of everyday people in a way that was unthinkable in 1881. Yet with this advance has come a cost. As a result of the expansion of the protections afforded by the First Amendment, a particular sort of offensive behavior, offensive speech, now lies almost completely beyond the bounds of permissible regulation.(3)

In an ironic twist of fate, some of the intellectual descendants of those who argued most strenuously for the expansion of civil liberties now believe that public discourse is in a state of devastating anarchy.(4) In essence, these critics wish to reclaim for the state a little of the authority Tombstone's elites used against the marginal members of their society. Whereas Tombstone's elites attempted to regulate offensiveness on behalf of their own interests, however, left-liberal critics wish to regulate offensive speech that harms "outsider" groups such as women and minorities. Are such regulations justifiable in a liberal democracy? If so, can the particular liberal democracy we inhabit, the United States, restrict offensive speech without ultimately causing more harm than good?

In his new book, Fighting Words, Kent Greenawalt explores the first of these issues, but unfortunately leaves the second question unanswered. Still, Fighting Words has much to recommend it: Greenawalt has provided a useful, well-written, and concise synthesis of the current law and scholarship in the United States and Canada on the question of the proper limits of protected speech in a democratic society.(5) Perhaps because of its origin as four separate lectures,(6) however, the book lacks a clear and sustained argument that thoroughly addresses the concerns of the skeptical reader. This flaw lessens the value experts might derive from Greenawalt's book.

II

The outer bounds of protected speech are defined, Greenawalt notes, by "the kinds of speech mainly engaged in by extreme dissenters and outsiders" (p. 11)--that is, the kinds of speech most likely to offend others. Focusing on four types of offensive expression--flag burning, hate speech, workplace harassment, and obscenity--greenawalt asks whether democracy requires that such expression be placed inside or outside the bounds of protected speech (p. 47). Put another way, should the Earps be called in to protect the community from such speech? Or should the cowboys of free expression be allowed to roam the community, disrupting the social order?

The answers to these questions depend on how much one privileges the protection of individual liberties over the protection of community sensibilities. In the United States, Greenawalt argues, courts have unjustifiably undervalued the harm to communities that deeply offensive speech can cause (pp. 53, 58)(7) and thus have been overprotective of individual freedoms. In cases striking down laws punishing flag burning,(8) hate speech,(9) and pornography,(10) the Supreme Court has developed broad conceptual categories that ignore the question of whether particular acts or remarks, in certain social contexts, cause great harm to particular groups (pp. 123, 137-49).(11) The Court has thus interpreted the First Amendment in such a way as to leave itself unable to perform more nuanced evaluations (p. 123).

The Supreme Court's tests instead emphasize only the right of individuals to engage in expression free from governmental interference. The Court first asks whether a restriction on speech primarily targets expression. If not, then all the...