Fighting Words: Individuals, Communities, and Liberties of Speech. - book reviews

Christian Century, Jan 17, 1996 by Franklin I. Gamwell

By Kent Greenawalt. Princeton University Press, 189 pp., $24.95.

KENT GREENAWALT has displayed learning, clarity and precision in discussing a wide range of U.S. legal and political problems, most notably in his previous book, Religious Convictions and Political Choice, in which he argued against the view that good liberal citizens separate religious adherence from their political deliberation. In Fighting Words he again considers how we should understand our liberal democracy, this time with respect to the First Amendment's protection of free speech, including freedom of the press. Under what circumstances is the use of words or the expression of meaning legitimately proscribed by the government?

In contrast to the book on religion and politics, which principally sought to defend a general claim, this work is focused on particular issues and cases in constitutional law. The book's title does not entirely do justice to the achievement. "Fighting words" are those "which by their very utterance inflict injury or tend to incite an immediate breach of the peace," but the detailed examinations here also include cases of flag burning as a political act, campus and workplace speech that discriminates, and the suppression of obscenity. Still, a distinction between "saying something with words and doing something with words" is important to Greenawalt, and fighting words are paradigmatic instances of the latter.

An especially creative aspect of the discussion is his comparison between the U.S. and Canada, which seeks to show how differences in constitutional history and cultural context influence free-speech jurisprudence. Because our courts are controlled by the simple protection of speech in the First Amendment, they have sought to establish permissible restrictions principally through identifying categories of unprotected expressions. In contrast, the Canadian Charter of Rights and Freedoms of 1982, which "drastically altered the constitutional landscape," not only stipulates fundamental freedoms of "thought, belief, opinion and expression" but also subjects these "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." As a consequence, the Canadian courts more often pursue a "balancing approach" that asks whether "the government's interest [in restriction] is very powerful." So, for instance, our Supreme Court has generally insisted on a rule against content discrimination, while the Canadian Supreme Court has upheld laws "that would undoubtedly violate" this rule in the U.S.

In a perceptive chapter, Greenawalt explores the importance of individualist and communitarian philosophies for issues of free speech. Though suspicious of summary statements that avoid the complexity of social and political life, Greenawalt nevertheless concludes that Canada's balancing approach may reflect a culture that is more controlled by communitarian understandings. He notes that protection of speech has, throughout most of our history, been correlated with the liberal movement for equality, while recent controversies over hate speech, campus and workplace harassment and obscenity have been marked by urgent claims that "equality itself calls for restriction." The Canadian courts have been more receptive to such claims, and this is one expression of the greater effectiveness there of communitarian commitments.

Throughout, Greenawalt's discussions are clear and nuanced, working their way patiently through the diverse considerations relevant to particular issues. Sensitive to why equalitarian commitments may lead to the regulation of speech that debases, Greenawalt nonetheless displays a circumspect defense of the First Amendment against attempts to compromise it in service to other political ends. in the larger public as well as the legal community, this book should be appreciated for the temperate analysis and judgment it brings to some heated debates and perplexing questions.