The First Amendment.

• Author: Brownstein, Alan E.
• Position: Review

THE FIRST AMENDMENT. By Daniel Farber.(1) Foundation Press. New York, NY. 1998. Pp. xi, 298. $29.95.

Daniel Farber has written a concise, sophisticated, and probing text on First Amendment doctrine for students. It is a thoughtful work that encourages readers to try to evaluate the Court's analysis as well as to develop an adequate understanding of important case holdings. Farber's writing style is clear and direct. Most of the time, his discussion of rules and standards are appropriately illustrated with useful examples. He uses humor occasionally to entertain as well as to enlighten. I liked the book, learned quite a bit in reading it, and got some good ideas about how to present certain issues in class from it. What I'm not sure about is whether I would assign the book to my students.

The problem is that this book is Farber on the First Amendment and I teach, not surprisingly, Brownstein on the First Amendment. Law professors often create a framework for understanding legal material, of course, but in most cases there is a sufficiently agreed upon core of doctrine that one scholar's description of the law can be profitably used by the students of another teacher. Current First Amendment doctrine, however, may have reached such a point of incoherence and indeterminacy that this kind of common understanding no longer exists.(3) The gaps and inconsistencies in the case law permit simply far too many plausible interpretations of the cases and legitimate ways to order them.

Thus, scholars writing books of modest size for students about the First Amendment may be forced to choose between two less than desirable alternatives. One can simplify, but essentially regurgitate, the reasoning of the various Justices in important cases. Consensus is possible under this approach. We might all agree that Justice Kennedy said "XXX" in a particular opinion. But this kind of a largely descriptive work is ultimately unsatisfying to the serious scholar and student. The goal of legal analysis is to go beyond what the Court says in specific cases and to try to find, or create, a more intelligible doctrinal picture than the bare reasoning and holdings of individual cases provide. A concise description of cases will not evaluate the Court's decisions or try to synthesize and interpret ostensibly divergent holdings. It isn't going to support the creation of new paradigms, it isn't going to be helpful in resolving problems where there is no case directly on point, and it isn't going to be much fun to write or read. Farber is far too smart and too interested in free speech issues to write a book like this. And The First Amendment isn't such a book.

The other approach is to write a book self-consciously imposing one's personal understanding of free speech doctrine on to the raw material of the Court's decisions. This is exciting and interesting work, but it can hardly be passed off to students as accepted wisdom. Much of this kind of an analysis will be controversial; it will be persuasive to some readers and completely unconvincing to others. Quite a lot of it will never be endorsed in a judicial opinion. It is clearly possible for someone who has thought about free speech doctrine as much as Farber has to write this kind of a book, but The First Amendment isn't that kind of a book either.

It is something in between. There may be more creative doctrinal development and discussion in the book, more of Farber's own sense of how the First Amendment works, than even the author realizes.(4) This is hardly a weakness in conventional terms. Indeed, it is what makes the book a valuable resource. But it is also in a sense what makes the book incomplete. The problem with a book of this length--that goes substantially beyond a recitation of the content of judicial opinions in order to impose order and meaning on the case law--is that it leaves out, necessarily, too many of the legitimate ways to understand the free speech issues the Court has been confronting. In blunt terms, it simply may not be possible any longer to write the kind of book that Farber has attempted to write in The First Amendment. It may not be possible to write a probing, critical discussion of free speech doctrine that is generally useful for teaching purposes today unless one allocates far more pages to the enterprise than either Farber or Foundation Press thought was appropriate.

In this review, I am going to focus on two sections of his book where Farber's analysis and selectivity in including arguments creates too much dissonance with the way that I understand the cases and issues for his work to be useful to me in teaching my classes. Instead of noting various disagreements that I may have with his analysis, as book reviewers typically do, however, I thought it might be more useful to provide comparative frameworks to help illustrate the differences between Farber's approach and my own. Accordingly, after summarizing the way Farber discusses the issues in these sections, I will describe the way I would present the same material. That comparison, hopefully, will demonstrate why it might be difficult for students to shift from one perspective to the other. Then, after juxtaposing alternative discussions of two free speech areas at some length, I will briefly sketch similar problems in a few other sections of Farber's work.

Of course, other readers might have less of a problem with the areas of The First Amendment that bother me, but would identify different sections of this work, sections that I found to be thorough and persuasive, as incomplete or off center from their perspective. The point isn't that any of these competing understandings of free speech cases and principles is necessarily more accurate and convincing than Farber's analysis. Rather, it is that under the current state of free speech case law we do not have an adequate, agreed-upon foundation on which we can stand and evaluate alternative doctrinal interpretations. Because of the seemingly systemic indeterminacy in so many free speech cases, we are left in a doctrinal world in which I seriously dispute very little of what Farber writes in this book, but I sometimes see things very differently or emphasize very different aspects of an issue in my classes.

1. CONTENT DISCRIMINATORY AND CONTENT NEUTRAL SPEECH REGULATIONS

   1. CONTENT AND VIEWPOINT DISCRIMINATION

      Farber raises an extraordinarily large number of issues in his discussion of content-neutral, content-discriminatory and viewpoint-discriminatory regulations in a very few pages.(5) He describes the relevant standards of review for each category, examines the difficulty of determining in which category a particular regulation belongs, and, perhaps most importantly, evaluates the utility of, and justifications for, the framework the Court has adopted. Much of his writing is extremely concise in light of the richness of the ideas he is expressing. For example, in discussing the difficulty in distinguishing content-discriminatory from content-neutral regulations, Farber explains that "[l]ooking at the face of the statute seems both too broad and too narrow--too broad, because ... there may be non-suspect reasons for keying the regulation to content,(6) and too narrow, because it allows clever drafters to target disfavored speech, so long as they do so covertly."(7) I would not assign too many pages of this book to students for any one setting. This is material that needs to be chewed on thoroughly if it is going to be digested without discomfort.

      In discussing what constitutes prohibited viewpoint-discrimination, Farber effectively zeroes in on what I take to be the critical issue. Determining whether what a regulation prohibits "counts as an opposing viewpoint," he explains, is inherently ambiguous "because this depends on how we conceptualize the relevant debate."(8) Thus, part of the disagreement between the concurring justices and the majority in City of St. Paul v. R.A.V. reflected differing views of the kinds of disputes at which the hate speech law challenged in the case might be directed.(9) To Justice Stevens, the law applied equally to both sides in a dispute between the members of different racial groups. To Justice Scalia, the law discriminated against racists engaged in a debate with opponents of racism.(10)

      I might have gone further than Farber does and suggested that the difficulty the Court experiences in identifying the relevant debate in R.A.V. carries the seeds within it of undermining the essential idea that there is something distinctive about viewpoint-discrimination. After all, it is hard to identify a content-discriminatory regulation that does not restrict the expression of a viewpoint in some hypothetical debate.(11) Even an ostensibly innocuous, subject matter regulation that prohibits speech about dogs, for example, may directly restrict at least one of the viewpoints that might be expressed in a debate about what constitutes the best household pet.(12) Certainly, Farber's analysis goes more than far enough on this issue for a student text, however.

   2. CONTENT-NEUTRAL REGULATIONS

      1. The Meaning of Content-Neutrality

         Where I part company from The First Amendment most significantly is in its discussion of content-neutral regulations. For the purposes of his analysis, Farber chooses to collapse three kinds of laws together: laws that directly regulate a time, place or conventional manner of expression, e.g., a law prohibiting leafleting; laws directed at conduct that is generally not engaged in for expressive purposes, but which in a given case is engaged in to communicate a message, e.g., sleeping in a park to demonstrate the plight of the homeless; and laws directed at conduct that is not generally engaged for expressive purposes and is not intended to communicate a message in the case at hand.(13)

         Apparently, Farber elects to structure his discussion this way for two reasons. First, the Court appears to have...