This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture. I have it on my shelf for night reading, but unfortunately even my “free reading” time has been swept up in other things. However, I note that it just received an enthusiastic review from Kevin Kosar in the Weekly Standard, October 26, 2009 (maybe sub reqd.). Kosar’s review notes (along with some criticisms of the book):
Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment’s prohibition against making a law ‘respecting an establishment of religion’.
Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes’s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a ‘marketplace of ideas’. When one metaphor ceases to provide the desired results, the Court crafts a new one....
Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court’s decisions have grown increasingly estranged from the plain language of the First Amendment and the Constitution generally. The word ‘speech’ no longer means talking; it now includes actions, such as burning the American flag and peddling pornography via the Internet. Taking all this in, the average American might well wonder if the justices are making things up as they go.
Tsai has written a fine book, but I cannot help but think that the late Justice Stanley Reed got it right in his dissent inMcCollum v. Board of Education (1948): “A rule of law should not be drawn from a figure of speech.”
yankee says:
There’s nothing as convincing as an appeal to “plain language.”
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November 6, 2009, 11:17 amOrin Kerr says:
I haven’t read the book, so apologies if my question is uninformed. But when the review says, “Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors,” is the suggestion that the Court’s metaphors and rhetoric, rather than its results, created the results it reached? I would think the metaphors and rhetoric tried to justify the results, and might have influenced the small number of Americans who actually read Supreme Court opinions at the time. But I would think the results came from, well, the results.
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November 6, 2009, 11:20 amKenneth Anderson says:
Orin: Alas, I haven’t read the book (yet!) — I’m going to drop an email to Robert and ask him if he wants to say something about it and if so, I’ll put it up here.
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November 6, 2009, 11:23 amSteve says:
Clearly the Founders never, ever would have dreamed of protecting expressive conduct — only talking! That’s why they included the Ninth Amendment, as a reminder that the Bill of Rights is to be given the most cribbed interpretation possible.
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November 6, 2009, 11:43 amDilan Esper says:
it seems quite silly to claim that ‘freedom of speech’ and ‘an establishment of religion’ have such clear, obvious, fixed meanings that they cannot be reconciled with prevailing supreme court doctrine on the issues discussed. this looks like one big ipse dixit.
as for metaphors, they are a form of reasoning by analogy. analogies can be false or fallacious, of course. but there certainly isn’t anything per se inappropriate about their use in jurisprudence
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November 6, 2009, 12:02 pmCharles says:
“Alas, I haven’t read the book (yet!)”
Nor, perhaps, the “enthusiastic review” by Kevin Kosar, whose credentials for reviewing a book on legal theory are succinctly described as being a “writer in Washington”.
Based on the quoted paragraphs from the “review”, I inferred that Prof. Tsai had written a screed against “judicial activism” and wondered what reviewers perhaps more objective than a WS writer might have to say about the book. To my surprise, reviews by several prominent legal scholars seemed quite positive. Then I read the complete review”. And as with Mr. Kosar, “the scales fell from my eyes”.
The first page of the two page review is a nostalgic reminiscence of the reviewer’s journey from “naivete” to discovery of the evils of judicial activism. The second page is largely a cheat-sheet for proselytizing prospective converts to originalism, at least those whose sophistication in the area of constitutional interpretation is at the level of “Interpretation? We don’t need no stinkin’ interpretation. Just read the words.” In short, it appears that to the extent that the “review” really is one, it seriously misrepresents the book.
IMO, this post does a disservice to Prof. Tsai. Because I have high regard for the opinions of most VC posters and was curious why a book that appeared — based on the quotes from the “review” — unlikely to be worth reading would be touted on VC, I was willing to expend some effort to resolve that seeming inconsistency and now might be interested in reading it. Others (at least those of my persuasion) not so motivated may stop at my original reaction.
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November 6, 2009, 12:25 pmRich Rostrom says:
But “shouting ‘Fire!’ in a crowded theater” is “speaking in a public place”.
It is a category of public speech with major consequences for public safety, and therefore properly subject to “infringing” regulation.
On the other hand, actions which are not the emission of spoken words but which clearly express a particular sentiment ought to be protected. One should be able to say “the President is a crook, and to “make a fig” at the President’s displayed image, with equal freedom.
As with all speech or other expressive conduct, reasonable restraints to maintain public order are allowed. Gross obscenity or provocation of violence is not protected when used to express opinions.
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November 6, 2009, 12:29 pmPersonFromPorlock says:
This is what I was getting at in another thread, as a justification for voting to repeal Maine’s gay marriage law: when the government has the power to define words (in this case, “marriage”) as it pleases, it has the power to escape any restrictions words can place on it. Which is to say, it can set the Constitution aside entirely, even while claiming to observe it scrupulously.
It’s necessary to the popular control of government, that government uses words the same way We the People do.
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November 6, 2009, 12:31 pmUgh says:
so presumably if “speech” means talking, if I give someone the finger instead of saying eff you, I could be sent to prison for the former but not the latter, no? Or, for that matter, I could be sent to prison for reading the bible.
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November 6, 2009, 12:31 pmKevin R. Kosar says:
Dear Charles:
Where to begin with your post?
First, I never called judicial activism evil. I argued that it has occured, and that while Tsai argues for its benefits, I note that judicial activism also has its costs.
Second, I did not argue that “We don’t need no stinkin’ interpretation.” That’s just stupid; please don’t attribute such a view to me.
Third, how can you claim I misrepresented a book and you haven’t even bothered to read the book? That is quite the intellectual feat.
Fourth, your ad hominem argument is worthy of no more than this— if you want to know my credentials (beyond writer in DC), then you could have spent a minute googling me and reading all about me.
Fifth, if you cannot understand my straightforward review of the book, then you probably won’t be able to understand the book itself, which is much more difficult to read.
Cheers,
KRK
Cheers,
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November 6, 2009, 12:53 pmyankee says:
Indeed. The assertion that the “plain language” of the First Amendment proves it doesn’t cover symbolic speech (flag-burning) or selling speech/press (“peddling pornography”) is a giant ipse dixit. How does the “plain language” establish that “speech” only means talking and the freedom of the press doesn’t include sales?
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November 6, 2009, 2:01 pmCJColucci says:
What is this post about? Is it about Tsai’s book? If so, there isn’t much about it. Does KA like the book or not? And why? Kosar’s review? If so, what, if anything, does KA think about the review and why it is worth our attention? When folks figure out the topic of this discussion, maybe we can get somewhere.
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November 6, 2009, 3:00 pmCharles says:
Dear Kevin:
“The evils of ...” is a common sarcastic form. Had I purported to be quoting you, your complaint would be valid, but I didn’t.
Whether your review did or did not challenge the need for interpretation I’ll leave to others to decide, but I will note that several other commenters seem to have made the same judgment as I, viz, that it did. As to my “stupid” pseudo-quote, I don’t know if your reaction indicates that you are too young to know or just lack a sense of humor, but it was a familiar play on one of the most famous lines in filmdom. See “stinking badges” on wikipedia.
My “intellectual feat” was to read other reviews, as indicated in my original comment. None suggested anything like what I initially inferred about Prof Tsai’s book from Mr. Anderson’s quote from your review. However, here I believe you do have a legitimate complaint in that I said your review misrepresented the book, which — right or wrong — is irrelevant to my real criticism, viz, Mr. Anderson’s choice of the excerpt therefrom in his post.
I believe that like many, you inappropriately use ad hominem. I see nothing wrong with challenging a reviewer’s credentials if one considers, as I do in this case, the review to exhibit incompetence. But in any case, I didn’t do that. I merely quoted those that were presented at the end of the review, viz, none relevant to the legal (as opposes to the linguistic) aspects of the book’s content, the aspects on which the review focused. However, now that I have spent that minute with google as you suggested, I might very well. Unless I missed something, you actually have one credential fewer I: in addition to an equally irrelevant PhD (EE) and a lay interest in selected aspects of 1A jurisprudence, I did one year of night law school 35 years ago. And with those, I would never presume to review a book on legal theory — not that any credible publication would ask me to do so.
I understood your review quite well, contrary to your unsubstantiated implication that I not only didn’t but couldn’t (which, I believe, actually is an ad hominem) and stick by my earlier synopsis.
In any event, my complaint was with Mr. Anderson’s judgment in posting a misleading excerpt from a review in a partisan magazine by a reviewer with no apparent credentials and a clear bias. From my perspective, any offense you may feel is unfortunate collateral damage (if you’ll pardon the metaphor).
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November 7, 2009, 12:36 pmKevin R. Kosar says:
Charles:
A few quick points, though I’m not sure why I am bothering:
(1) So, again, you didn’t read the book, yet you claim yourself able to discern whether I rendered it accurately? That’s intellectually bogus.
(2) I’m familiar with the Blazing Saddles quote... Nice try to turn your own distortion of what my review said into an attack on my knowledge of film and my sense of humor
(3) Had you read it, you’d know that Tsai’s book is not a book on “legal theory.” Even if it was, the notion that a person must have a JD to review such a book is nonsense. Ever hear of Louis Fisher? He wasn’t trained as a lawyer.
Cheers,
KRK
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November 7, 2009, 4:30 pmBaby says:
CHARLES WINS
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November 8, 2009, 9:38 amThe Volokh Conspiracy » Blog Archive » Robert Tsai on ‘Eloquence and Reason’ says:
[...] couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor [...]
Larry Fafarman says:
From original post’s quote of Kevin Kosar’s review:
Holmes “likened the act of speaking in a public place . . . . to falsely shouting Fire! in a crowded theater” only in the sense of giving another example of where restriction of freedom of speech may be justified. “Assembly in the grand tradition of democracy” is covered by its own 1st Amendment clause: “the right of the people peaceably to assemble.” “Peddling of wares in the ‘marketplace of ideas’” is just an “act of speaking in a public place.” These are not good examples of far-fetched metaphors.
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November 18, 2009, 5:37 am