FREE SPEECH IN AN OPEN SOCIETY

A superb exposition of the significance of free speech and an analysis of how to preserve it in our increasingly complex society. Smolla (Law/Marshall-Wythe School of Law at William and Mary College) makes a case for an open culture—one in which free-speech values pervade and permit a robust and open exchange of ideas. Seeing the achievement of such a culture as ``an aspiration of transcendent importance,'' he envisions a society in which free speech is seen both as a means of testing and choosing the best ideas—the ``marketplace'' rationale for free speech—and as an end in itself. Smolla demonstrates, however, that, in practice, society attempts to establish limits on speech that often lead to significant diminution of speech. He analyzes the possible harms of speech—to persons and property; to social, transactional, and business relationships; to individuals and to communal sensibilities—and creates a theoretical hierarchy of harms that, in his view, can create a theoretical basis for regulating speech (how his theory can be reconciled with the absolutist language of the First Amendment is not clear). After discussing this theoretical groundwork, Smolla examines the application of free- speech principles in practical situations, which he divides broadly into political speech (such as hate speech, obscenity, individual privacy, and public funding of the arts) and issues raised by newsgathering (such as censorship in the Persian Gulf War, the attempt to restrain release of tapes in the Noriega case, and the challenges posed by new technologies). Avoiding easy answers, the author demonstrates an acute sensitivity to the importance of preserving free speech while recognizing the practical problems faced by policy-makers. Smolla takes a scholarly—yet accessible—approach to his subject and displays a sure knowledge of recent First Amendment jurisprudence. An excellent and important work.