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The Tolerant Society
The First Amendment provides Americans with a far broader protection of free speech than that available in any other Western democracy, Lee Bollinger notes, and yet other democracies are not seen as significantly less open or more restrictive that the United States. Why do Americans guarantee
people the right to advocate the overthrow of the government or advance racist or genocidal ideas? Why, for example, protect the right of neo-Nazis to march in predominantly Jewish Skokie, Illinois?
In The Tolerant Society, Bollinger offers a masterful critique of the major theories of freedom of expression, and offers an alternative explanation. Traditional justifications for protecting extremist speech have turned largely on the inherent value of self-expression, maintaining that the
benefits of the free interchange of ideas include the greater likelihood of serving truth and of promoting wise decisions in a democracy. Bollinger finds these theories persuasive but inadequate. Buttrressing his argument with references to the Skokie case and many other examples, as well as a
careful analysis of the primary literature on free speech, he contends that the real value of toloeration of extremist speech lies in the extraordinary self-control toward antisocial behavior that it society is stengthened by the exercise of tolerance, he maintains. The problem of finding
an appropriate response--especially when emotions make measured response difficult--is common to all social interaction, Bollinger points out, and there are useful lesons to be learned from withholding punishment even for what is conceded to be bad behavior.
About the
Lee C. Bollinger is Professor of Law at the University of Michigan Law School.
people the right to advocate the overthrow of the government or advance racist or genocidal ideas? Why, for example, protect the right of neo-Nazis to march in predominantly Jewish Skokie, Illinois?
In The Tolerant Society, Bollinger offers a masterful critique of the major theories of freedom of expression, and offers an alternative explanation. Traditional justifications for protecting extremist speech have turned largely on the inherent value of self-expression, maintaining that the
benefits of the free interchange of ideas include the greater likelihood of serving truth and of promoting wise decisions in a democracy. Bollinger finds these theories persuasive but inadequate. Buttrressing his argument with references to the Skokie case and many other examples, as well as a
careful analysis of the primary literature on free speech, he contends that the real value of toloeration of extremist speech lies in the extraordinary self-control toward antisocial behavior that it society is stengthened by the exercise of tolerance, he maintains. The problem of finding
an appropriate response--especially when emotions make measured response difficult--is common to all social interaction, Bollinger points out, and there are useful lesons to be learned from withholding punishment even for what is conceded to be bad behavior.
About the
Lee C. Bollinger is Professor of Law at the University of Michigan Law School.
- GenresLaw
307 pages, Hardcover
First published April 10, 1986
About the author
Lee C. Bollinger
30 books6 followersLee C. Bollinger, J.D. (Columbia Law School), has served as the president of Columbia University since 2002 and is the longest serving Ivy League president. He is Columbia’s first Seth Low Professor of the University, a member of the Columbia Law School faculty, and one of the country’s foremost First Amendment scholars.
From 1996 to 2002, Bollinger was the president of the University of Michigan at Ann Arbor. He led the school’s litigation in Grutter v. Bollinger and Gratz v. Bollinger, resulting in Supreme Court decisions that upheld and clarified the importance of diversity as a compelling justification for affirmative action in higher education. He speaks and writes frequently about the value of racial, cultural, and socio-economic diversity to American society through opinion columns, media interviews, and public appearances.
Bollinger served as a law clerk to Judge Wilfred Feinberg of the United States Court of Appeals for the Second Circuit and Chief Justice Warren Burger of the Supreme Court. He went on to join the faculty of the University of Michigan Law School in 1973, becoming dean of the school in 1987. He became provost of Dartmouth College in 1994 before returning to the University of Michigan in 1996 as president.
From 1996 to 2002, Bollinger was the president of the University of Michigan at Ann Arbor. He led the school’s litigation in Grutter v. Bollinger and Gratz v. Bollinger, resulting in Supreme Court decisions that upheld and clarified the importance of diversity as a compelling justification for affirmative action in higher education. He speaks and writes frequently about the value of racial, cultural, and socio-economic diversity to American society through opinion columns, media interviews, and public appearances.
Bollinger served as a law clerk to Judge Wilfred Feinberg of the United States Court of Appeals for the Second Circuit and Chief Justice Warren Burger of the Supreme Court. He went on to join the faculty of the University of Michigan Law School in 1973, becoming dean of the school in 1987. He became provost of Dartmouth College in 1994 before returning to the University of Michigan in 1996 as president.
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September 3, 2021
Probably one of my favorite first amendment books. The book explores the purpose of the first amendment. When I took first amendment, the textbook threw up its hands claiming that there was no coherent theory of the first amendment. That might be true, but this book makes a valiant effort to produce one.
The author explores the paradox of protecting almost any expression (even expression we find hateful and destructive) from state sanction while allowing social punishment for speech. We also exempt speech advocating for crimes despite generally punishing crimes, even when that speech calls for the destruction of the order that protects freedom of expression (and often the speech itself is harmful, in a real sense). He first explores the "deliberation" theory of the first amendment, the theory that we need absolute freedom of speech to generate information to help make governance decisions. But as the author describes, a major limitation of this theory is that often there is "censorship" in other truth seeking processes, for example, in criminal cases certain information is excluded from consideration because the effect is considered too prejudicial and distorts the truth seeking process. Another is that in democratic societies, censorship would by majority, not imposed by some autocrat, why couldn't a majority impose rules on what can be discussed? And sometimes that majority expresses a certain view when it bans hateful ideas, taking potential censorship out of their hands is the removal of a tool of expressive conduct. The author then explores the intolerance theory, the theory that we have a tendency to suppress thoughts we don't agree with, so we need a bulwark against that intolerance. Minority groups may adopt this kind absolute freedom to protect themselves. But here too is a problem, for one, why are judges the best individuals to protect society from intolerance (seems elitist and untrue, since as individuals judges could also get "swept up" in a moment of intolerance), and secondly, this image of the masses as intolerant and inrrational is at odds with the deliberative theory where individuals deliberate to reach rational decisions.
The author offers his own theory, which is that we recognize we have a tendency to suppress, so we carve out speech as a special field of tolerance, a learning zone of sorts to help us become more tolerant and mediate our excessive intolerance by forcing us to tolerate extreme ideas. Perhaps seeing the intolerant express their hate, we recognize that ugliness in ourselves, particularly when we desire to use censorship for bad motives beyond addressing the harm of the bad speech. As a result, judges who are expected to be tolerant in hearing all sides of a story are uniquely positioned to administer the first amendment. In that sense, the freedom of expression is both an expression and exercise of our interest of tolerance.
The author then spends some time exploring where tolerance can come from. He explains that tolerance can either come from self confidence, or self doubt. In the first (Meiklejohn), one is so confident in their ideas that they tolerate dissenting opinions he knows are wrong. In the second (Holmes/Mill), one is so doubtful of their own ideas that they must allow other opinions to exist because of a deep skepticism. Both run into their own issues, the first into the suppression of truly dangerous ideas, and the second of having the need for others to be doubtful.
Finally the author applies this principle to first amendment cases to show some coherence. In particular libel is an exception from freedom of expression because its harm is inflicted on one person than society as a collective to then self restrain. Fighting words are a pragmatic realization that in some situations people will not be able to restrain themselves. The author would like litigation to balance the costs and benefits of tolerance, since social capacity for tolerance may be different from time to time. Finally the author notes that its possible to have excessive tolerance as well.
Overall the book is well worth a read. Good analysis, original ideas and references to many interesting thinkers and legal decisions. Highly recommend anyone interested in freedom of expression to read this book. Occasionally gets in the rabbit hole with some particular thinker, but that's to be expected with legal scholarship. Important work for all who live in a free society and wish it to remain that way.
The author explores the paradox of protecting almost any expression (even expression we find hateful and destructive) from state sanction while allowing social punishment for speech. We also exempt speech advocating for crimes despite generally punishing crimes, even when that speech calls for the destruction of the order that protects freedom of expression (and often the speech itself is harmful, in a real sense). He first explores the "deliberation" theory of the first amendment, the theory that we need absolute freedom of speech to generate information to help make governance decisions. But as the author describes, a major limitation of this theory is that often there is "censorship" in other truth seeking processes, for example, in criminal cases certain information is excluded from consideration because the effect is considered too prejudicial and distorts the truth seeking process. Another is that in democratic societies, censorship would by majority, not imposed by some autocrat, why couldn't a majority impose rules on what can be discussed? And sometimes that majority expresses a certain view when it bans hateful ideas, taking potential censorship out of their hands is the removal of a tool of expressive conduct. The author then explores the intolerance theory, the theory that we have a tendency to suppress thoughts we don't agree with, so we need a bulwark against that intolerance. Minority groups may adopt this kind absolute freedom to protect themselves. But here too is a problem, for one, why are judges the best individuals to protect society from intolerance (seems elitist and untrue, since as individuals judges could also get "swept up" in a moment of intolerance), and secondly, this image of the masses as intolerant and inrrational is at odds with the deliberative theory where individuals deliberate to reach rational decisions.
The author offers his own theory, which is that we recognize we have a tendency to suppress, so we carve out speech as a special field of tolerance, a learning zone of sorts to help us become more tolerant and mediate our excessive intolerance by forcing us to tolerate extreme ideas. Perhaps seeing the intolerant express their hate, we recognize that ugliness in ourselves, particularly when we desire to use censorship for bad motives beyond addressing the harm of the bad speech. As a result, judges who are expected to be tolerant in hearing all sides of a story are uniquely positioned to administer the first amendment. In that sense, the freedom of expression is both an expression and exercise of our interest of tolerance.
The author then spends some time exploring where tolerance can come from. He explains that tolerance can either come from self confidence, or self doubt. In the first (Meiklejohn), one is so confident in their ideas that they tolerate dissenting opinions he knows are wrong. In the second (Holmes/Mill), one is so doubtful of their own ideas that they must allow other opinions to exist because of a deep skepticism. Both run into their own issues, the first into the suppression of truly dangerous ideas, and the second of having the need for others to be doubtful.
Finally the author applies this principle to first amendment cases to show some coherence. In particular libel is an exception from freedom of expression because its harm is inflicted on one person than society as a collective to then self restrain. Fighting words are a pragmatic realization that in some situations people will not be able to restrain themselves. The author would like litigation to balance the costs and benefits of tolerance, since social capacity for tolerance may be different from time to time. Finally the author notes that its possible to have excessive tolerance as well.
Overall the book is well worth a read. Good analysis, original ideas and references to many interesting thinkers and legal decisions. Highly recommend anyone interested in freedom of expression to read this book. Occasionally gets in the rabbit hole with some particular thinker, but that's to be expected with legal scholarship. Important work for all who live in a free society and wish it to remain that way.
Displaying 1 of 1 review