Eternally Vigilant: Free Speech in the Modern Era.

• Author: Haiman, Franklyn S.
• Position: Book Review

Eternally Vigilant: Free Speech in the Modern Era. By Lee C. Bollinger and Geoffrey R. Stone (eds.). Chicago: University of Chicago Press, 2002; pp. x + 330. $35.00.

An unfortunate fact of academic life is that sometimes people who are outstanding teachers and scholars also have such exceptional administrative skills that they are lured into becoming deans, provosts, and even university presidents. Although they do not lose their teaching and writing talents, time generally does not permit their use. Happily exceptions occasionally occur, and this volume is a modest example. Lee Bollinger, formerly a professor at the University of Michigan Law School, now president of Columbia University, and Geoffrey Stone, formerly a professor at the University of Chicago Law School and now that university's provost, both notable First Amendment experts, have co-edited this collection of articles invited from other leading free-speech scholars. Five of the ten chapters were apparently written originally for this book and the others are revisions of essays previously published elsewhere. The volume begins with a brief dialogue between Bollinger and Stone and concludes with another. One o f the co-editors introduces each essay with a short summary of that chapter's thesis.

Most of the essays deal with First Amendment principles at a relatively high level of abstraction but are also clearly enough written to be accessible to non-experts in the field. For the most part they are unusually original and highly provocative, so that even those who are already knowledgeable about free-speech matters can learn a great deal from them.

The most enlightening, at least for this reader, was the very first chapter, written by Professor David Strauss, entitled "Freedom of Speech and the Common-Law Constitution." He convincingly demonstrates that although reference is constantly made by free-speech scholars and the Supreme Court to the language of the First Amendment as the basis from which they derive current principles and judgments, what has really happened has been a slow, evolutionary process of decision-making that has operated like the common law in building from one precedent to another. It could not be otherwise, he asserts, because "it is simply not clear what the framers meant to do. Part of the difficulty ... is the differences between their world and ours." He adds that, "neither the text nor the original understanding provides much support for the principles...