Decentering the First Amendment

Law & Society Review, 1997 by Neal Milner

to explore the relationships between the law and society in such a way as to contribute to the understanding of law as a social and political phenomenon and to expedite the utilization of law as a more effective instrument of public policy. (My emphasis)

This stance toward law and policy is law centered, makes assumptions about the efficacy of law, and leads to a focus on rather specific and concrete questions often defined by policymakers or people trying to influence policy (compare Leo 1996). The people in SLAPPs are `juridical subjects" (Silbey & Sarat 1988) whose lives and situations the authors define in relationship to formal law. Their lives are described in regard to the effect that the First Amendment has on them. We learn a little about the personal lives of people involved, but these personal details still have as their backdrop the questions of constitutional rights and violations.

The authors do not use the word "ideology" to describe their work, which they see as empirical and theoretical. In fact they only use "ideology" to describe their adversaries, those who bring SLAPP suits. In the appendix, which, curiously, is the only place the authors raise some of their most significant methodological and political issues, Pring and Canan accuse those who bring SLAPP suits of doing so to promote and enforce "a form of ideological power that is both a reflection of intolerance and a means of undemocratic dominance" (p. 222). Perhaps, but the authors of the book also bring forth their own form of ideological power that may be a reflection of tolerance and democratic values but is an ideology nonetheless.

The authors are only partially correct about the book being an empirical study based on theoretical underpinnings. There are, as we shall see, some rich, fascinating, and important data here, and the way Pring and Canan gather their information is often imaginative and encompassing. Their claims for theory, however, are exaggerated and are further evidence of the strong ideological pull of the book. They do not cite much literature on community conflict, use virtually none of it in the text, and fail to consider recent works that look at the role of law in such conflict.

The literature on political participation is similarly limited, and there is no discussion of the free speech literature that questions the effectiveness of the First Amendment. The authors use some of the ideas from the dispute transformation literature to show how SLAPP litigation redefines public issues into narrow legal ones, but the only literature propelling the book is the work that defends the importance of the speech and petition clauses of the Constitution, certainly a form of political ideology.

I do not stress the ideological underpinnings of this book to stigmatize it or dismiss it on its face. All works are ideological in the sense that they manifest visions and preferences guiding the choices that go into the production of a study. Pring and Canan's strong advocacy of First Amendment rights makes the book compelling. Nor do I emphasize the ideological aspects of the book because I disagree with its policy conclusions. I agree that when push comes to shove, the petition clause should triumph over other concerns. It is important to stress their ideology in order best to observe what the authors do not emphasize or do not see. Ideologies foreground some things and downplay others. Emphasizing the authors' ideology helps to give a clearer picture of what the book tells us and does not tell us about law.