| Book Review | Law and History Review, 22.3

Book Review

John R.Wirenius, First Amendment, First Principles: Verbal Acts and Freedom of Speech, New York: Holmes & Meier, 2000. Pp. vii + 342. $45.00, cloth (ISBN 0-8419-1383-8); $24.95 paper (ISBN 0-8419-1435-4) (revised ed. 2002).

Lawrence Soley, Censorship, Inc.: The Corporate Threat to Free Speech in the United States, New York: Monthly Review Press, 2002. Pp.vii + 308. $70.00 cloth (ISBN 1-58367-067-x); $23.95 paper (ISBN 1-58367-1).

The recent spate of books reassessing free speech has reshaped old ideas about the purpose and value of the doctrine among the changing legal, political, and economic milieu. John F. Wirenius contends that existing free speech doctrine leaves a good part of speech unprotected and is intent on developing a renewed historical understanding of the conventional history of free speech. The 1919 free speech cases that led to Justice Holmes's stunning reassessment of the "clear and present danger doctrine" in fact marks the midpoint of the "Supreme Court's evolution toward the expansive protection we give to speech in the American legal system today" (3). Wirenius argues that the confusion over free speech protection comes from the Supreme Court's shift after Schenck and Abrams, when it protected speech that failed to incite. Realizing the consequences of that broad immunity, a group of justices instead concluded that "not all speech was speech" and thus began to base free speech doctrine on an inherently subjective question as to whether the speech was of "high" or "low" value to society as a whole (3).

This subjectivity led the court to make law, not enforce the Constitution. Wirenius calls for a return to the "verbal act" doctrine that treats all communication as speech thus eliminating the multi-layered tests that confound current speech doctrine. The verbal act doctrine permits a content-neutral standard of constitutional protection that is not subjectively based on the judicial view of the merits of the message, respects the language of the Constitution, and most importantly, draws a "principled distinction between the right to communicate, which is constitutionally protected, and the right to act, which may not be" (134). Advocating a return to this doctrine, Wirenius contends that the court would in fact be harkening back to "first principles," to the pre-1919 speech cases and that the Court would end the cumbersome balancing tests calipered by personal idiosyncrasy. The test will not result in absolute certainty, but Wirenius makes a strong case that a verbal acts test based on first principles would end what he calls "Chaplinskyism," a tendency to flexibility that leads to code word disguises ("high value," "low value") that permit "legitimate governmental interests" to censor virtually anything (121).

In the last chapters, Wirenius tackles the emerging free speech challenges of internet technology and those of feminist legal scholar Catharine MacKinnon who advocates the censorship of pornography that tends to degrade, victimize, or objectify women because pornography thus defined is not speech. Wirenius disagrees, maintaining that as a first principle, Brandeisian ideas of counterspeech promote equality more effectively than efforts at state-sponsored silencing of critics. In addition, he contends that hate speech and campus speech codes are counterproductive of first principles. The way to expose the bad idea to scorn is in the open sunlight of deliberation and debate, not in the "difficulty infinding a way to permit proportional representation" that "presents a mind-boggingly complex and subjective utilitarian calculus" that is "singularly subject to corruption in its application" (279).

Wirenius's account is incisive, sophisticated, and richly historical. This book deserves a wide reading from free speech scholars, legal historians, and civil libertarians contending with the complexity of free speech doctrine in an increasingly inegalitarian marketplace of ideas.

Lawrence Sorley's attempt to stir debate over the manner by which corporate power suppresses free speech is a fine addition to the growing body of free speech literature. Censorship, Inc. details corporate speech suppression tactics including the regulation of labor speech in company towns, to new forms of statutory speech limitation such as agricultural disparagement statutes intended to protect certain favored industries against criticism, to the growing power of the media conglomerates that increasingly adopt speech restrictive policies in tune with large advertisers.

Those looking for a balanced historical treatment of the rise and use of corporate power may be disappointed. Soley wants debate about "what constitutes censorship in the land of the free"(xi), and he tends to argue his points like a polemic against the rise of corporate power.

However, his account of recent corporate tactics to restrict speech, such as the rise of "SLAPP" (Strategic Lawsuits Against Public Participation) lawsuits brought against private groups and citizens who petition a branch of government for redress against a corporate wrong, and the rise of corporate business ethic power in mass media, his arguments and evidence are compelling. Soley shows how these lawsuits often have a chilling effect against those individuals or groups. Moving the policy dispute from the arena of public debate into a private legal forum of a libel lawsuit transforms the financial burden and the effective cost of free speech. The problem has become so acute that several states have enacted anti-SLAPP legislation intended to mitigate the deep pocket power of those corporations who most often use the law to silence vocal opposition.

Economic pressure by large corporate advertisers also plays a role in silencing debate by media organizations dependent on those business revenues. The public airwaves, having been sold off, now decline to offer an electronic avenue for public debate, more often than not adapting bland and commercially acceptable views of public policy issues so as not to upset major advertisers. The book carefully scrutinizes the Telecommunications Act of 1996 that led to mergers that devalue diversity of opinion, increase advertising costs, and limit opportunity for substantive, open deliberation. The reader may long for a more nuanced vision of the conceptual problem with the "marketplace of ideas" and a clearer critique of that persistent legal myth that Soley's knowledge of the irregularities of the market model equip him to discuss.

Censorship, Inc., despite its polemical tone, offers substantive evidence and commentary on the rise of corporate power and its effect on free speech doctrine. Intended to stimulate debate and discussion, Soley provides an ambitious and controversial foray into the controversy over the practical problems of corporate power and its effect on modern free speech doctrine. Wirenius's and Soley's contributions provide new and articulate perspectives to the growing reassessment of the history of the free speech doctrine among legal scholars and practitioners alike.

Kurt Hohenstein

University of Virginia

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.