NONFICTION - Sept. 10, 1995

THE PRICE WE PAY: The Case Against Racist Speech, Hate Propaganda, and Pornography edited by Laura Lederer and Richard Delgado (Hill and Wang: $30 hardcover/$15 paper; 384 pp.). Richard Delgado, a professor of law at the University of Colorado, seems a bit optimistic when he writes in the penultimate essay in this collection that there is an “inexorable shift” away from the great reverence with which American jurisprudence has historically regarded the First Amendment. It’s true, though, that the First Amendment isn’t what it used to be; unlike much postmodern, deconstruction-influenced academic thinking, contemporary analysis of First Amendment theory is proving intellectually important as well as fashionable. Many of the 40-odd essays reproduced here were first given at a 1993 University of Chicago conference, and the overall message (often delivered with a sledgehammer due to the book’s repetitive nature and some contributors’ extremity) is worth heeding: A society that truly believes in justice and equality cannot read the First Amendment’s free speech clause in absolute terms. “The Price We Pay” is a one-sided volume--the most conservative position is given by the University of Chicago’s middle-of-the-road law professor Cass Sunstein, and the most radical essayists make Catharine MacKinnon and Andrea Dworkin (who also publish pieces here) seem almost temperate--but it’s enlightening nonetheless, if only because contributors attack traditional First Amendment thinking from so many directions. Free speech for one party often suppresses speech in another; equality is a necessary precursor to free speech, not its inevitable product; words and pictures can produce real harm, to the point that they are indistinguishable from violent action; existing legal categories and procedures dealing with hate speech and pornography may well encourage sexism and racism, even when they claim to do just the opposite. Few of these arguments are convincing in their entirety, but it won’t be long, you can be sure, before many of their elements are incorporated into mainstream legal theory.