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GAZETTE
SEPTEMBER 1990
BOOK
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REVIEWS
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T HE T OL ERANT SOC I E TY
By Lee C. Bollinger. [Oxford
University Press, New York
and Oxford, 1988. viii +
295pp. paper, US Dollars
9.95, hardback US dollars
24.95].
SPEECH, CR IME A ND T HE
USERS OF LANGUAGE
By Kent Greenawalt. [Oxford
University Press, New York
and Oxford, 1989. 368pp.
hardback, US Dollars 45.00].
THE ELECTRONIC MEDIA AND
THE TRANSFORMAT ION OF
LAW
By M. Ethan Katsh. [Oxford
University Press, New York
and Oxford, 1989. 336 pp.
hardback, US Dollars 32.50].
A DOCUMEN T ARY HISTORY
OF T HE FEDERAL
COMMUN I C A T I ONS ACT OF
1934
Edited by Max. D. Paglin
[Oxford University Press, New
York and Oxford, 1989 880pp.
hardback, US Dollars 55.00].
The law relating to communica-
tions is a central theme in these
four books, the subject of this
notice. Central to the four books is
the specific language of the First
Amendment of the US Constitution
- "Congress shall make no
law . . . abridging the freedom of
speech, or of the press". Article
40.6.1 of the Irish Constitution is
much weaker in its effect. This
latter Article provides that the Irish
State guarantees liberty for the
exercise, subject to public order and
morality, of the right of the citizens
to express freely their convictions
and opinions. But there are further
qualifications. The second para-
graph at Article 40.6.1.i ordains that
the State must endeavour to ensure
that the organs of public opinion,
such as the radio, the press, the
cinema, while preserving their
rightful liberty of expression, in-
cluding criticism of Government
policy, must not be used to
undermine public order or morality
or the authority of the State. In
effect, interpreted in a certainway,
the Irish Constitution sanctions a
form of prior restraint of expression
in relation to public order, public
morality and the authority of the
State.
Governmental action smacking
of prior restraint has aroused the ire
of great writers and scholars over
the centuries. John Milton in
Areopagitica,
John Stuart Mill in
On
Liberty,
and Walter Bagehot
profoundly disliked prior restraint of
verbal expression. Those writers
have influenced the great free
speech doctrine articulated in the
powerful judicial dissent of Justice
Oliver Wendell Holmes of the
United States Supreme Court. In
Abrams
-v-
United States
250 US
616 (1919) in one of the most
powerful dissents ever written - a
dissent which provides the basis of
the contemporary free speech
principle in the United States -
Justice Holmes wrote that
"the ultimate good desired is
better reached by free trade in
ideas - that the best test of
truth is the power of the thought
to get itself accepted in the
competition of the market, and
that truth is the only ground
upon which their wishes safely
can be carried out".
Free speech is, of course, not an
absolute right. The truth-discovery
justification is open to criticisms.
Does free discussion contribute to
the discovery of truth? There is no
easy answer.
Dean Lee C. Bollinger of the
University of Michigan LawSchool
provides a defence in
The Tolerant
Society
of how free speech may
develop capacities for tolerance in
society. Dean Bollinger analyses
free speech cases and doctrines in
the United States. Debate on the
mertis of the free speech principle
must commence with an under-
standing of the goals of free
speech. Dean Bollinger in his
introduction states that the
purpose of his book is to contribute
to that understanding.
Professor Kent Greenawalt,
Benjamin N. Cardozo Professor of
Jurisprudence at Columbia Uni-
versity Law School, in his book
Speech, Crime and the Uses of
Language
disagrees with Bollinger's
view that promoting tolerance is
now the primary justification for free
speech or that attention to tolerance
should play the critical role in
decisions whether to restrict speech.
Professor Greenawalt in
Speech,
Crime and the Uses of Language
explores the three-way relationship
between the idea of freedom of
speech, the criminal law, and the
many uses of language. Free
speech is considered by
Greenawalt as a political principle,
and after an analysis of the
justification commonly advanced
for freedom of speech, he examines
the kinds of communications to
which the principles of free speech
apply. Greenawalt addresses such
questions as what should be
considered "speech" within the
meaning of the First Amendment,
and what tests the courts should
employ in deciding whether parti-
cular criminal statutes should be
held constitutional.
Professor Ethan Katsh, Professor
of Legal Studies at the University of
Massachusetts in Amherst, in
The
Electronic Media and the Trans-
formation of Law,
examines how
the electronic media of television
and computers are forcing changes
in the goals, doctrines and pro-
cesses of law, in the legal
profession and in the values and
concepts that underlie the system
of law. Professor Katsh asserts that
the electronic media will have an
increasingly powerful impact on all
facets of American law - its
methods, values, and societal role
- and illuminates new challenges
that will affect the operation and
nature of law in the future.
The
Communications
Act of
1934
is one of the basic and most
important documents of US Com-
munications Law.
A
Documentary
History of the Communications Act
of 1934
is an exhaustive reference
work. The book is a collaborative
project by the Golden Jubilee
Commission on Telecommunica-
293