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A Chilling Effect.

A Chilling Effect.

Lois Forer. Norton, $18.95. The world portrayed by Judge Forer will be familiar to the reporters, authors, professors, and lawyers who make up the free speech lobby. Because these afficionados find it congenial to think that the First Amendement is under ferocious attack by the forces of darkness, they may even find her description belivable.

According to Forer, we live in a world where private censors relentlessly cut off access to ideas. Citizens pressure schools about book select. Consumers boycott products advertised on controversial TV shows. Generals sue over cartoon parodies in raunchy magazines. Disappointed professors sue over their colleagues' assessment of their scholarship. Everywhere thinskinned, humorless, avaricious people are suing. The United States teeters on the brink of becoming "an enormous silent gulag patrolled not by government agents but by private persons..." This, Judge Forer adds, "is not an imaginary fancy."

It's not? as a description of a country where judges have long made a fetish of protecting freedom of speech and where an unprecedented amount and variety of information is avialable to all, it is balderdash. But read the book anyway. Somehow, Judge Forer, starting from a grossly distorted description, ends up with a sensible prescription.

Forer's approach is unusual in that she does not distrust juries or the general public, and she does not propose excluding them from free speech issues. On the other hand, she does think that the role of the Supreme Court should be greatly restricted. Even its best efforts have led only to a hopeless profusion of arcane legal distinctions that produce uncertainty and invite the kind of litigation that chills speech.

Instead, she proposes a new federal statute incorporating a host of specific, commonsensical solutions. Some are aimed to encouraging private methods of prevention or correction. These include apologies, retracractions, disclaimers, lableing, and even courtesy. Others are aimed at bringing the law of libel and privacy more into line with other areas of law, like trade disparagment, that are less glofified but seem to work better. She would, in effect, deromanticize libel law, substituting precise statutory definitions for confused judical doctrine. Damages would be limited to actual harms and would be recoverable without regard to the writer's state of mind. Recovery would generally be eaiser but would be permitted for a more limited range of statements. Predictability and speed having been restored to the judical process, authors would have less to fear and more to write.

Not everyone will agree with all of the solutions proposed. Perhaps, for example, a variety of solutions might be more practical than a single national statute (which Judge Forer would justify -- good grief! -- as a regulation of interstate commerce). Even her general strategy of reducing timidity by reducing uncertainty is in many respects doubtful. Forer suggestes, for instance, that defamation be defined as "a statement that taken as a whole makes a verifiably false charge that the subject committed a specific criminal or other degrading act." Lawyers can find much to litigate about here. How much is "taken as a whole?" How certain must vertification be? What is a "degrading act?" Off we go again.

Nevertheless, by proposing that these problems be resolved tentatively through the political process, the book takes a large step in the right direction. When we are able to access threatsto our civil liberties as clear-headedly as Forer wants us to discuss solutions, we will be getting somewhere.

-- Robert Nagel
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Author:Nagel, Robert
Publication:Washington Monthly
Article Type:Book Review
Date:Feb 1, 1988
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