Free Speech
Bollinger, Lee C.
Free Speech THE TOLERANT SOCIETY by Lee C. Bollinger Oxford University Press. 285 pp. $19.95. Supreme Court Justice Felix Frankfurter put it nicely: "It is a fair summary of history to see that...
...When he gets into more specific problem areas of First Amendment doctrine such as the "fighting words," libel, and obscenity exceptions to free-speech protections, he draws his lines too narrowly for my taste...
...It is a book which presumes to ask a question too-long unanswered: "What does society gain in its interactions from having freedom of discourse...
...Out of the remnants of the two, Bollinger constructs a third, original model of free-speech behavior, the general-tolerance ethic...
...The heart of the book, the first four chapters, in which Bollinger dissects the classical and fortress models and offers his alternative tolerance ethic, are exceptionally strong...
...This is an original approach to an old problem of First Amendment law, an approach which is stated compellingly if not always convincingly...
...It is mildly surprising that neither the Near case nor the Frankfurter quotation turns up in Lee Bollinger's provocative new book, The Tolerant Society...
...First, there is an increased notice for the idea of tolerance itself...
...this is the 1931 case in which the Supreme Court struck a definitive blow against prior restraint of the press by upholding the right to publish an anti-Semitic scandal sheet...
...Finally, "the extremist speech makes us perhaps more conscious of the full potential that lurks behind seemingly more innocent versions of the same ideas...
...Bollinger is concerned with more recent phenomena, and he would no doubt argue that the path we have taken in First Amendment law leaves Near behind...
...If, as he writes, neither classical nor fortress models can explain convincingly why we should permit the excesses of extremist speech such as that of the Nazis, perhaps the reason lies, instead, in the function of free speech as a central form of social interaction...
...At the very least, it fails to recognize the ideological nature of the social construction of sexuality and, concomitantly, the political nature of sexual discourse...
...but with the development of a capacity of mind, with a way of thinking: It is concerned with facing up to a perceived bias of mind, one that interferes with all of those objectives, as well as others, and is also encountered in the decisions over the regulation of speech...
...Bollinger believes that although there are elements of truth in both classical and fortress models, each presents a highly colored vision of human behavior, depicting it as either too rational or too intolerant...
...Using the Skokie-Nazi-march controversy as his jumping-off point, Bollinger has written an intriguing volume...
...identity," is an arguable one...
...Petersburg Times...
...His book, a philosophical disquisition more than a legal treatise, deals with the ongoing problem of extremist speech...
...Moreover, Bollinger believes that previous free-speech literature takes insufficient notice of the effect of speech acts on society...
...Bollinger has other fish to fry...
...Supreme Court Justice Felix Frankfurter put it nicely: "It is a fair summary of history to see that the safeguards of liberty have been forged in controversies involving not very nice people...
...Near v. Minnesota comes to mind...
...The classical model-that free speech is necessary to the triumph of truth in the marketplace of ideas—and the fortress model—that such strictures protect free expression from the power of rampant and tyrannical majorities—are seriously flawed, he argues...
...He posits that the traditional arguments for free speech are no longer sufficient to deal with the modern reality...
...George Robinson (George Robinson, a member of the National Writers Union, writes on film, sports, and civil liberties for Newsday, the Cleveland Plain Dealer, and the St...
...His partial defense of antipornography legislation, based on the notion that "in the post-Freudian age, those in the law cannot casually dismiss the claim either that sexual instincts are not easily estimated or they lie at the core of an individual's...
...The Tolerant Society is a valuable contribution to First Amendment literature, a book which breaks new ground by moving us away from legalistic wrangling toward an understanding of the speech act in a larger social context...
...Second, there is the edifying spectacle of the intolerant mind at work, a sight which "illustrates the very qualities of mind that it is the purpose of the free-speech principle to counteract...
...Bollinger suggests three advantages that society gleans from the toleration of extremist speech...
...He writes: "Under the general-tolerance function, free speech is not concerned exclusively with the preservation of a freedom to do whatever we wish, or with the advancement of truth or democracy...
Vol. 50 • November 1986 • No. 11
