The Gazette 1990

SEPTEMBER 1990

GAZETTE

State guarantees liberty for the exercise, subject to public order and morality, of the right of the citizens to express freely their convictions and opinions. But there are further qualifications. The second para- graph at Article 40.6.1.i ordains that the State must endeavour to ensure that the organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, in- cluding criticism of Government policy, must not be used to undermine public order or morality or the authority of the State. In effect, interpreted in a certainway, the Irish Constitution sanctions a form of prior restraint of expression in relation to public order, public morality and the authority of the State. Governmental action smacking of prior restraint has aroused the ire of great writers and scholars over the centuries. John Milton in Areopagitica, John Stuart Mill in On Liberty, and Walter Bagehot profoundly disliked prior restraint of verbal expression. Those writers have influenced the great free speech doctrine articulated in the powerful judicial dissent of Justice Oliver Wendell Holmes of the United States Supreme Court. In Abrams -v- United States 250 US 616 (1919) in one of the most powerful dissents ever written - a dissent which provides the basis of the contemporary free speech principle in the United States - Justice Holmes wrote that "the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out". Free speech is, of course, not an absolute right. The truth-discovery justification is open to criticisms. Does free discussion contribute to the discovery of truth? There is no easy answer. Dean Lee C. Bollinger of the University of Michigan LawSchool provides a defence in The Tolerant Society of how free speech may develop capacities for tolerance in society. Dean Bollinger analyses free speech cases and doctrines in the United States. Debate on the mertis of the free speech principle

must commence with an under- standing of the goals of free speech. Dean Bollinger in his introduction states that the purpose of his book is to contribute to that understanding. Professor Kent Greenawalt, Benjamin N. Cardozo Professor of Jurisprudence at Columbia Uni- versity Law School, in his book Speech, Crime and the Uses of Language disagrees with Bollinger's view that promoting tolerance is now the primary justification for free speech or that attention to tolerance should play the critical role in decisions whether to restrict speech. Professor Greenawalt in Speech, Crime and the Uses of Language explores the three-way relationship between the idea of freedom of speech, the criminal law, and the many uses of language. Free speech is considered by Greenawalt as a political principle, and after an analysis of the justification commonly advanced for freedom of speech, he examines the kinds of communications to which the principles of free speech apply. Greenawalt addresses such questions as what should be considered "speech" within the meaning of the First Amendment, and what tests the courts should employ in deciding whether parti- cular criminal statutes should be held constitutional. Professor Ethan Katsh, Professor of Legal Studies at the University of Massachusetts in Amherst, in The Electronic Media and the Trans- formation of Law, examines how the electronic media of television and computers are forcing changes in the goals, doctrines and pro- cesses of law, in the legal profession and in the values and concepts that underlie the system of law. Professor Katsh asserts that the electronic media will have an increasingly powerful impact on all facets of American law - its methods, values, and societal role - and illuminates new challenges that will affect the operation and nature of law in the future. The Communications Act of 1934 is one of the basic and most important documents of US Com- munications Law. A Documentary History of the Communications Act of 1934 is an exhaustive reference work. The book is a collaborative project by the Golden Jubilee Commission on Telecommunica-

BOOK REVIEWS

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T HE T OL ERANT SOC I E TY By Lee C. Bollinger. [Oxford University Press, New York and Oxford, 1988. viii + 295pp. paper, US Dollars 9.95, hardback US dollars 24.95]. SPEECH, CR IME A ND T HE USERS OF LANGUAGE By Kent Greenawalt. [Oxford University Press, New York and Oxford, 1989. 368pp. hardback, US Dollars 45.00]. THE ELECTRONIC MEDIA AND THE TRANSFORMAT ION OF LAW By M. Ethan Katsh. [Oxford University Press, New York and Oxford, 1989. 336 pp. hardback, US Dollars 32.50]. A DOCUMEN T ARY HISTORY OF T HE FEDERAL COMMUN I C A T I ONS ACT OF 1934 Edited by Max. D. Paglin [Oxford University Press, New York and Oxford, 1989 880pp. hardback, US Dollars 55.00]. The law relating to communica- tions is a central theme in these four books, the subject of this notice. Central to the four books is the specific language of the First Amendment of the US Constitution - "Congress shall make no law . . . abridging the freedom of speech, or of the press". Article 40.6.1 of the Irish Constitution is much weaker in its effect. This latter Article provides that the Irish

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