Freedom of expression: purpose as limit.

Freedom of Expression: Purpose as Limit

"SPEECH, UNDERSTOOD without qualification or limit, is as capable of destroying as of establishing community among men.' This is one of the controlling insights of Francis Canavan's book Freedom of Expression: Purpose as Limit.

The subtitle expresses the form of Father Canavan's whole argument: As soon as we specify the purpose of constitutionally protected freedom of expression, we also imply rational limits to the protection. Is the purpose the discovery of truth? Then falsehood as such may not qualify for protection. Nor obscene speech, let alone nude dancing.

Yet the Supreme Court has absurdly stretched the notion of "ideas' to cover things like pornography. There is a weird elasticity in the recent history of the Court's free-expression rulings. At first the word "expression' was used as a handy umbrella device to cover the related freedoms of speech, press, and assembly to petition for redress. Gradually, however, the Court came to talk as if an unqualified right of "expression' were embedded in the First Amendment itself.

We have even heard the phrase "symbolic speech' used to cover physical acts like burning draft cards or degrading the flag--as if speech itself weren't symbolic. In fact the Court, especially during the Warren era, has resolutely refused to take radical utterances on their own terms, as assaults on the community rather than as "contributions' to the "free exchange' of "ideas.' The liberal regime tries heroically to assimilate its avowed enemies, by insistently interpreting curses and threats as merely cognitive statements.

Father Canavan's first chapter reviews the modern Court's progressively more incoherent utterances on subversive, obscene, and otherwise destructive forms of expression. He demonstrates that the Court has not only expanded the range of protected "free expression' but has actually lost its moorings by changing its rationale from one case to another. It has argued from the sacredness of truth and from the unknowability of truth; from the community's right to know and from the community's lack of any right to impose its standards on dissenters; from the dignity of reason and from the impossibility of determining what is irrational. The attempts of the Burger Court to draw limits haven't helped much, from the standpoint of consistency. We now have only a hodgepodge of disordered precedents that neither limit the range of permissible expression in any helpful way nor even provide a firm justification for the kind of free speech about which there is a real consensus.

The result is that the right of free speech, though hardly qualified in practice, has really ceased being a right in any moral sense. Its main rhetorical defense these days is the alleged danger of imposing any limits at all: If we jail the pornographer, we may wind up arresting philosophers. This sort of cautionary prediction belongs to a phony empiricism, not to philosophy. It begs the question: Why shouldn't we arrest philosophers?

Willmoore Kendall observed that the liberal defenders of free speech argue from the stereotype of Socrates versus the Assembly; it goes without saying that Socrates is always right and the Assembly is always wrong, even if the role of Socrates is currently being played by Owen Lattimore or Larry Flynt. Thus Justice William Brennan dissented from one Court decision, which he attacked as "another of the dominant culture's inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking.' Note the quasi-Marxist touch: There are no universally right ways of thinking, acting, and speaking, only the Leninist problem of who is going to do what to whom; in this case, a bullying majority imposing its will on weak minorities. There is no question of a "minority' being in the wrong. The Court's liberals have never quite said that the right of free expression is absolute, but they have insisted that the community meet virtually impossible conditions--e.g., proving that a pornographic work is "utterly without redeeming social value'--before it may set any limit on the right's exercise.

The bulk of Freedom of Expression reviews the classic arguments for freedom of speech. Father Canavan looks closely at Milton, Locke, Spinoza, Tunis Wortman, Mill, Bagehot, Laski, Chafee, and Meiklejohn. He finds their arguments of varying cogency, but he is concerned mostly with what they have in common: a specificity of purpose that (except perhaps for Laski) inherently limits the range of the freedoms they seek to secure. "An argument proves no more than it proves,' he says sensibly. Milton's argument that a Protestant society can tolerate "neighboring differences' that don't include, and can't include, "Popery and open superstition' can hardly be twisted into an argument for tolerating pornography. John Stuart Mill went much further--made, in fact, a radically different argument--in contending that society should allow various "experiments in living.' But he too seems to have assumed a specific cultural frame-work that makes his principles hard to apply to present-day society, and he laid down the condition that commercial pimping wasn't covered by his case for freedom. Why not? He gave no reasons and passed over this large question; probably he was just being prudent. But he had released a genie that sees no reason to observe his anomalous stricture.

The freedom these thinkers contended for, Father Canavan concludes, "was the freedom of reason to pursue the true and the good through discussion and debate. This is a broad freedom, but not a simply amorphous one. Having a goal, it does have limits, and there is much in the way of expression that it does not cover or covers only lightly.' Whether this freedom has produced the benefits they hoped for is an interesting but separate question. At any rate, it is imbecilic to suppose that they intended to spawn Times Square. Even William Brennan ought to be able to grasp that.

Father Canavan has the rare gift of presenting subtle philosophical arguments lucidly without losing touch with earthier realities, as when he cites a remark of Pope Pius XII: "What interests the masses in this regard is not the beauty of the nude, but the nudity of the beauty.' Freedom of Expression goes directly to the core of a great debate and maintains perfect focus; each chapter is a gem of concise exposition. That its intellectual and stylistic virtues by no means guarantee that it will achieve the cultural penetration it deserves to have is a strong reason for pessimism about the social value of free speech.

Is it fated that bad expression must drive out good expression? Probably, if we put all forms of expression on a single plane--as the liberal regime does. Father Canavan's book makes one demand on the reader: that he get into the habit of thinking critically in an area where slogans are now sovereign. For most of the people who should read this book, that may be asking too much. Their habits of thought have already been formed by other forces.