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Ross, Susan Dente. Deciding Communication Law: Key Cases in Context.

Ross, Susan Dente. Deciding Communication Law: Key Cases in Context. Mahwah, NJ, Alabama: Lawrence Erlbaum Associates, Inc. 2004. Pp. xiv, 619. ISBN: 0-8058-4698-0 (hbk.) $80.00.

Modern libel law rests upon a wobbly 1964 precedent: in New York Times v. Sullivan the Supreme Court, in effect, decreed it's permissible to get the facts wrong as long as your heart is pure. To succor the civil rights movement, the Court shredded the centuries old "to the marrow" proof for truth, thus transcending the particulars of an Alabama city official's grievance against a Yankee newspaper.

"Heed Their Rising Voices," a fund-raising ad for Martin Luther King, Jr., carried a handful of inaccuracies. For example, Montgomery police had, in fact, arrested King "only" four times, rather than seven, as the ad had claimed. But such innocent mistakes inevitably attend debate on public issues, which "should be uninhibited, robust, and wide-open," wrote Justice William J. Brennan in the decision that reversed a lower court's contention that falsity presumed libelous malice.

Brennan's monumental opinion is included in Susan Dente Ross's Deciding Communication Law. Short on "talk about cases" and long on the cases themselves, her text contains 39 opinions--mostly complete--spanning 70 years, from Near v. Minnesota (1931) to North Jersey Media Group v. Ashcroft (2002). While teaching media law, Ross discovered that even undergraduates could understand and enjoy reading the actual decisions:
 Once they overcome their initial timidity and
 learn a bit of legal jargon, they are fascinated by
 the drama of the law and by the profound disagreements
 and biting rhetoric exchanged by the
 judges who hand down these rulings. This is the
 stuff of real life, real disputes, real rulings: the
 real thing. It's not at all like reading books that
 talk about cases. (p. xi)

And, as Mathew D. Bunker's introduction adds:
 When it comes to communication law--or almost
 any field of law, for that matter--there is simply
 no substitute for reading the cases. Cases tell the
 story in a way that hornbooks, treatises and other
 narrative secondary sources simply can't replicate.
 As helpful as serious communication law
 treatises often are to students and teachers alike,
 to know the law only through these sources is to
 know the lyrics but not the music. (p. xiii)

Above all, however, the opinions exemplify dialectical argument in the service of democratic ideals. On occasion, dissenting justices attack the logical flaws in the majority opinions with a courage and wit that recalls Plato's Dialogues. For example, in R.A.V. v. City of St. Paul (1992), which examines a cross-burning incident, the Supreme Court struck down a hate-speech ordinance as unconstitutional. Delivering the Court's opinion, Justice Scalia deemed the St. Paul ordinance overly restrictive, stepping beyond the proscription of content into that of viewpoint. "Fighting words" that would be acceptable on the placards of speakers favoring racial tolerance and equality could not be used by their opponents: "St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules" (p. 7.8). And, concluded Scalia, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire" (p. 7.9).

Justice Byron White concurred, but took exception to the majority's motives and handiwork:
 Today, the Court has disregarded two established
 principles of First Amendment law without providing
 a coherent replacement theory. Its decision
 is an arid, doctrinaire interpretation, driven
 by the frequently irresistible impulse of judges
 to tinker with the First Amendment. The decision
 is mischievous at best and will surely confuse
 the lower courts. I join the judgment, but
 not the folly of the opinion. (p. 7.16)

Justice John Paul Stevens piled on: "in ruling that pro-scribable speech cannot be regulated based on subject matter, the Court does just that. Perversely, this gives fighting words greater protection than is afforded commercial speech" (p. 7.19). And, "To extend the Court's pugilistic metaphor, the St. Paul ordinance simply bans punches 'below the belt'--by either party. It does not, therefore, favor one side of any debate" (p. 7.24).

Democracy is forever in a state of becoming, malleable, unpredictable, shaped anew over and over by discursive clanging. Like a social seismograph, Deciding Communication Law charts these ideological twists and turns over most of the 20th century. In the mid-1970s, for example, new semantic eruption fractured the plane separating (historically privileged) political speech from mere commercial speech, resulting--arguably--in the conflation of free speech and free enterprise. In 1978, for instance, "the Court held that a complete ban on newspaper advertising for routine legal services violated the First Amendment" (p. 10.4).

Soon after, a landmark Supreme Court decision battered the right of states to regulate "truthful commercial speech" (surely an oxymoron). During the 1973 Arab oil embargo, the state of New York had banned all advertising that promoted electricity consumption. A state court upheld the ban, reasoning that "commercial speech" from a power company conveyed little useful information. In Central Hudson Gas and Electric Corp. v. Public Service Commission of New York (1980), the Court found such overly broad speech restrictions unconstitutional.

In dissent, Justice William Rehnquist warned that requiring parity between commercial and noncommercial speech invited "dilution" of the First Amendment's scale of values. The Court's majority, he noted, had built their opinion from specious metaphoric stuff. Rehnquist attacked the Court's frequent reference to a "marketplace of ideas," as though some laissez-faire policy would optimize economic decision making under the guidance of Adam Smith's "invisible hand." However, he continued, the identification of speech that falls within First Amendment protection,
 is not aided by the metaphorical reference to a
 'marketplace of ideas.' There is no reason for
 believing that the marketplace of ideas is free
 from market imperfections.... The notion that
 more speech is the remedy to expose falsehood
 and fallacies is wholly out of place in the commercial
 bazaar, where if applied logically the
 remedy of one who was defrauded would be
 merely a statement, available upon request,
 reciting the Latin maxim 'caveat emptor.' ...
 [I]n a democracy, the economic is subordinate to
 the political, a lesson that our ancestors learned
 long ago, and that our descendants will undoubtedly
 have to relearn many years hence. (pp.

The frequency with which such impeccable logic--the sine qua non of eloquence--flows throughout American case history suggests that legal writing merits more space in the liberal arts curriculum than today's marginal exposure through a single media law or ethics course. Case writing is both a literary and a philosophical/rhetorical enterprise. Inextricably linked through precedent, the cases form an architectonic canon steeped in American history. The New York Times v. Sullivan case, for example, is part treatise on the Founders: in commenting on the Alien and Sedition Acts of 1798, Justice Brennan cites a Thomas Jefferson letter to Abigail Adams:
 I discharged every person under punishment or
 prosecution under the sedition law, because I
 considered, and now consider, that law to be a
 nullity, as absolute and as palpable as if
 Congress had ordered us to fall down and worship
 a golden image. (p. 14.20)

Such erudition characterizes Deciding Communication Law and demonstrates the compilation's applicability to a wide range of pedagogic and personal goals.

--Tony Osborne

Gonzaga University
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Author:Osborne, Tony
Publication:Communication Research Trends
Article Type:Book review
Date:Jun 1, 2008
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