Book Review: Too Much Free Speech? by Randall P. Bezanson

Abstract

Randall P. Bezanson Too Much Free Speech? Urbana: University of Illinois Press, 2012. 266 pp.Stanley Fish's declaration that there's no such thing as free and it's a good thing, too turned on the meaning of the word free. The answer to the question posed by the title of Iowa law professor Randall Bezanson's well-argued book similarly depends on the meaning of speech under the First Amendment. In a careful and detailed analysis of five major cases heard by the U.S. Supreme Court over the past two decades, Bezanson argues that the Court's failure to acknowledge the limits of its own judicial or base its rulings on a clear application of first principles has greatly expanded the scope of First Amendment protection. To Bezanson, that is not a good thing.The book has five main chapters, each one a meticulous and compelling analysis of one of the five cases. In each chapter, the author lays the facts and legal issues of the case and then walks the reader through the parties' main points in their briefs and in oral argument. He makes great use of the transcripts of oral argument, at times cri- tiquing the justices' questions and the attorneys' answers. These sections contain the most absorbing reading of the book-not only do they help the reader understand how the Court's opinions were shaped, but they also offer an inside look at the justices' interactions and the rhetorical challenges that face the advocates standing before them. Bezanson concludes each chapter with an analysis of the justices' opinions, including the concurrences and dissents, and his conclusions regarding the practical and doctri- nal consequences of the decision.The first chapter looks at the most recent of the cases, Citizens United v. Federal Election Commission (2010), in which the Court overruled existing precedent to extend full First Amendment protection to business corporations for political speech. Bezanson criticizes the decision as unsupported by either the text or history of the First Amendment. His discussion of Pleasant Grove City v. Summum (2009) in the next chapter includes a primer on public forum analysis and on the relatively new doctrine of speech, which regards the government's acceptance or rejection of private messages-in this case, a proposed monument for a city park-as a act that is itself entitled to First Amendment protection. The Court's use of the doctrine to allow the government to discriminate based on the message conveyed unleashed a dangerous power (p. 110), Bezanson concludes-one that endangers traditional pub- lic forum law and allows the First Amendment to be used as a shield to protect the government from the people, rather than the other way around.The next two chapters deal with the Court's willingness to extend constitutional protection to arising out of thin air (p. 2)-that is, to a message with no obvi- ous speaker or a speaker with no obvious message. …