More Speech, Not Less: Communications Law in the Information Age
by Mark Sableman
Reviewed by Ina R. Bort
From the New York Law Journal
December 30, 1997
"The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it."
It was 1859 when John Stuart Mill first enunciated the "search for truth" rationale. Since the publication of On Liberty, his idea has recurred in various guises: in Holmes's conception of a "marketplace of ideas" (Abrams v. U.S.); in Alexander Miekeljohn's argument that "public issues shall be decided by universal suffrage" (Free Speech and Its Relation to Self-Government); and, most recently, in Mark Sableman's More Speech, Not Less.
We live in an age when these ideas are perhaps more conveniently forgotten, an age of flag burning, child pornography, hate speech on the Internet and a host of other forms of expression we'd much rather see banned.
Or would we? Sableman, in his concise, highly readable book, asks us to revisit our knee-jerk reactions to offensive speech. He points out, in a variety of contexts, why even the most offensive speech is preferable to an imposed silence.
Take, for instance, pornography. The arguments on either side of the debate have, by this time, become familiar to us: free speech proponents on the one side, procensorship feminists on the other. But even readers (such as this one) who typically align themselves with the latter may find Sableman's argument for the former a persuasive one. He explains why an antipornography ideology, like any solution that advocates censorship, is a dangerous path to follow.
While we tend to associate the antipornography movement with modern feminism, Sableman suggests that it instead represents a reversion to overprotective attitudes towards women, attitudes premised upon the inherent weaknesses of the fairer sex. These are attitudes that, if followed to their natural conclusion, could spell the end of women's rights altogether.
According to Sableman, a better alternative is the creation and maintenance of an environment that engenders debate about sex, sexuality and feminist concerns. This would be an environment not where pornography is silenced and, therefore, likely to "draw the curious to its extremist message," but one where antipornography advocates can effectively combat pornography by exposing its messages of misogyny and violence against women.
Sableman's discussion of "indecent" expression over the Internet is particularly compelling. The final chapter of the book, "The Internet and Electronic Information," includes a comprehensive description of ACLU v. Reno. That decision, in which a Philadelphia court (as affirmed by the U.S. Supreme Court) determined that the Communications Decency Act unconstitutionally abridged freedoms of speech and of the press, is praised by Sableman for its "thoughtful and cogent analysis of the Internet and its place in the jurisprudence of free speech."
The presiding judges were well aware of the potential dangers of the Internet. They surely recognized that, as described recently in the New York Times, the Internet "enables the instant marketing of hate and mayhem," according to Marc Knobel, a researcher who monitors Web sites for the Simon Wiesenthal Center (see "As Hate Spills Onto the Web, a Struggle Over Whether, and How, to Control It," New York Times, Nov. 24, 1997, D11).
Nevertheless, the judges understood the dangers that inhered in the Communications Decency Act's aim to ban "indecent" and "patently offensive" speech on the Internet. With the help of the plaintiffs challenging the Act, they were able to recognize the "wealth and promise of materials available on the Internet." Moreover, in the Court's own words, "once one has entered cyberspace, one may engage in the dialogue that occurs there." In short, they recognized the Internet as an unprecedented opportunity to implement the principles articulated by Mill, Holmes and their pro-expression disciples.
Nor is Sableman's book restricted to a defense of offensive speech. He devotes at least as many chapters to issues relating to freedom of the press. As a newspaper-reporter-turned-communications-lawyer, Sableman is well suited for this task.
Sableman is at his best when discussing the intersection of the news-gathering process and the administration of justice. His chapters on "News Gathering" and "Fair Trial, Free Press" include thought-provoking discussions on such topics as the alleged conflict between the right of a fair trial and that of a free press, a conflict whose existence Sableman vehemently denies.
Sableman attacks the "prevalent conventional wisdom that the only qualified juror is a totally ignorant juror," and the idea that "even if pretrial publicity is not fatal to trial fairness, it should somehow be minimized, and [that] it is the duty of a responsible press to do so." He reminds us that the First Amendment guarantees freedom of the press in "absolute terms, without any trial-publicity exception." And he lists the many techniques available to ensure a fair trial that won't, in the process, abridge press freedoms: voir dire of the jury panel, peremptory challenges, jury instructions, sequestration of jurors from media reports. Sableman insists that these techniques have worked so far, and will continue to work to preserve the right to a fair trial.
Sableman skillfully addresses other issues that bear upon freedoms of speech and of the press, including libel, privacy, copyright and advertising. There is, however, an issue that Sableman fails to address: how to ensure a level playing field. Surely the marketplace of ideas is as susceptible to domination by its largest participants in the way that any market is. How then, to preserve an atmosphere where both sides of every debate are heard at equal volume? The question warrants at least some discussion in a book such as More Speech, Not Less.
Sableman's strength is his ability to synopsize and explain judicial opinions with brevity and in a highly readable fashion. The sections within each chapter are clear and to the point. One problem, however, is that the sections do not always work to form a cohesive chapter.
More Speech, Not Less is likely to appeal to lawyers, journalists and any readers with an interest in free speech and media issues. Sableman has successfully demonstrated the continuing vitality of Mill's doctrine in the Information Age. His text brings to mind Marshall McLuhan's observation that "we have already discovered the futility of changing our goals as often as we change our technologies.
