GLOBAL MEDIUM, LOCAL LAWS: REGULATING CROSS-BORDER HATE SPEECH

by Bastiaan Vanacker. El Paso, TX: LFB Scholarly Publishing, 2009. 264pp. Casebound $70.00. ISBN: 9781593323318.

Reviewed by Robert G. Brookshire, Technology Support and Training Management Program, University of South Carolina. Email: brookshire [at] sc.edu.

pp.841-844

In April, 2000, La Ligue Internationale Contre le Racisme et l’Antisémitisme (LICRA) and l’Union des Etudiants Juifs de France (UEJF), French nonprofits working against anti-Semitism, brought suit against Yahoo!, Inc. seeking to halt the sale of Nazi memorabilia on Yahoo!’s auction site as well as the publication of MEIN KAMPF and THE PROTOCOLS OF THE ELDERS OF ZION in French on web sites hosted by Yahoo!’s Geocities service. Yahoo! responded that, though these activities may be illegal in France, they were not illegal in the United States, that the Yahoo! auction site was intended for an American audience, and that it was not technically feasible to prevent French Internet users from accessing these sites.

The French court in which the suit was brought disagreed, however, and ordered Yahoo! to stop access to web sites and auctions of Nazi material and warn users of Yahoo! France that searches of Yahoo.com might return results that were illegal in France. Yahoo! should also take steps to block the access of French users to material illegal in France.

Yahoo! replied that it was not technically possible to comply with the court’s order, whereupon the court asked a panel of experts to evaluate the technical feasibility of compliance. The panel reported that it was indeed possible for Yahoo! to prevent most French users from accessing its sites. The French judge ordered Yahoo! to comply with his order within three months or face a fine of 100,000 Francs per day.

Yahoo! took steps to mollify the French court, revamping its auction policies to prohibit the sale of items associated with the Nazis and other hate groups, and removing the link to LES PROTOCOLES DES SAGES DE SION. The company also posted the required warning on the Yahoo! France web site, which still may be found in Yahoo! France’s “Conditions d'utilisation du service” page. Yahoo! continued to sell items such as German stamps and coins from the Nazi era as well as copies of MEIN KAMPF through its auction site.

Yahoo! also asked the U.S. District Court in the Northern District of California to declare the French court’s order unenforceable. The Court agreed, Judge Jeremy Fogel writing that the U. S. Court could not enforce a foreign court’s order that chills protected speech. This decision was reversed on appeal, though, in part because the French nonprofits had never attempted to enforce the French court’s ruling.

The Yahoo! case illustrates the knotty problems raised when nations with conflicting laws confront each other on the Internet. In GLOBAL MEDIUM, LOCAL LAWS: REGULATING CROSS-BORDER HATE SPEECH, Bastiaan Vanacker investigates how [*842] nations with hate speech laws can regulate content on the Internet, particularly content hosted in the United States. Vanacker, on the faculty of the School of Communication at Loyola University in Chicago, has updated and expanded upon material he first addressed in his dissertation at the University of Minnesota.

Vanacker does not settle on a single definition of hate speech; rather, he defines five components those seeking to regulate such speech must take into consideration: the medium, the content, the target, the context, and its effects. With regard to the medium of speech, for example, printed or spoken expressions are often less regulated than activities such as cross burning or marching. Taking context into consideration means that a comedian’s act may receive greater latitude than a politician’s address. When governments regulate hate speech, these restrictions are often justified based on its potential harmful effects. The interplay of these five dimensions means, among other things, that arriving at a clear consensual definition of hate speech is difficult if not impossible.

In his first chapter, Vanacker brings his five dimensions to bear on an analysis of U.S. case law relevant to hate speech, most of which would be classified simply as First Amendment cases. He also reviews the theory or philosophical justifications for free speech beginning with John Stuart Mill, including a broad array of modern writing on the subject.

The second chapter reviews recent cases in the United States concerning speech, especially hate speech, and the Internet. Beginning with RENO v. ACLU, which challenged the Communications Decency Act of 1996, and culminating with PLANNED PARENTHOOD OF COLUMBIA/WILLAMETTE v. AMERICAN COALITION OF LIFE ACTIVISTS, Vanacker demonstrates that courts have sometimes taken the medium and the context of speech into consideration when evaluating the level of protection to be given to speech online. He shows that courts have nevertheless been reluctant to create a consistent doctrine concerning speech on the Internet. Hate speech is generally viewed as protected by U.S. courts.

As Vanacker shows in his third chapter, most other countries, particularly in Europe, have the opposite approach, with international treaties and national laws prohibiting hate speech. The European Union has made efforts to restrict hate speech within its member countries. Germany has extensive limits on hate speech. France’s Pleven law prohibits incitement of discrimination or violence based on nationality, race, religion, or ethnicity, and a newer law prohibits Holocaust denial. Britain’s Race Relations Act prohibits speech in which “hatred is likely to be stirred up against any racial group,” though prosecutions under the act are rare.

The American laissez faire approach to hate speech clashes directly with European regulations on the Internet, as Europeans can both create and access hate speech web sites hosted in the United States. Vanacker describes legal challenges by both governmental and nongovernmental actors in Europe to hate speech appearing on the Internet in the fourth chapter of GLOBAL MEDIUM, LOCAL LAWS. He reviews the Yahoo! case outlined above and its aftermath, as well as challenges to [*843] CompuServe and other Internet service providers. German and European Union telecommunications laws have been put in place in attempts to regulate speech that is illegal in their jurisdictions but with only limited success. Britain has tried a different approach. The Internet Watch Foundation (IWF), a nonprofit agency, maintains a hotline for complaints about illegal online content. Though mostly concerned with child pornography, the hotline has taken action against racist content by asking service providers to remove material hosted on their servers. The IWF has had only limited effect outside the U.K., however.

In chapter five, Vanacker presents his recommendations for normative criteria that could form the basis of international hate speech regulation. His first proposal is that any regulation should respect the layered structure of the Internet. This idea is borrowed from a NOTRE DAME LAW REVIEW article by Lawrence Solum and Minn Chung. Solum and Chung present a modification of the International Standards Organizations Open Systems Interconnection (OSI) Model. In contrast to the OSI Model’s seven layers (application, presentation, session, transport, network, data link, and physical), Solum and Chung’s model consists of six layers: content, application, transport, Internet Protocol, link, and physical. Solum and Chung argue that any regulation of the Internet should respect this layered structure, so that attempts to regulate content, for example, should not be enforced at lower layers. The French court in the Yahoo! case sought to violate the integrity of the Internet’s layers, for instance, by asking Yahoo! to restrict access to content by examining users’ Internet Protocol addresses.

The second of Vanacker’s criteria is that nations should respect local Internet regulations arrived at through a representative democratic process. At what point should regulators attempt to enforce their rules? Vanacker, following Jonathan Zittrain, identifies four loci of control: the source of the content, the source’s Internet service provider (ISP), the destination of the material, and the destination’s ISP. If any of these loci reside within the regulator’s jurisdiction, this is where the regulation should take place. In addition, Vanacker suggests that regulators can appropriately seek enforcement of content from providers outside their jurisdiction if the content is deliberately targeted at an audience within the regulators’ authority.

The final principle Vanacker presents is that regulation should be effective. By this, he means that regulation not only should work, but that it should not be overly broad, it should be technically feasible, and the content being regulated should be illegal, with content providers having the ability to appeal judgments against them.

In his final chapter, Vanacker applies his three principles to many different proposals made by scholars, governments, and Internet companies to regulating hate speech. He finds that most fail to be consistent with these principles. Vanacker recommends, in addition to the regulation of content providers and ISPs within their jurisdictions, the creation of hotlines similar to those in Britain, regulating search engines, and working with American anti-hate groups and ISPs to [*844] remove objectionable content. These strategies would limit the availability of hate speech in places where it is illegal while further research on the nature, extent, and effects of online hate speech is conducted.

Generally, Vanacker’s arguments are compelling, as he thoroughly examines the arguments for and against every point of view he discusses. American civil libertarians will take issue with the basic premise that speech on the Internet requires some kind of regulation, but Vanacker is really more concerned with how European and other regulators may regulate the Internet, not whether they ought to do so.

Computer professionals will take issue with Vanacker’s principle that regulations should not violate the layered structure of the Internet. The layers that Vanacker describes are merely a logical model of how the Internet works. Much of the hardware and software that we use daily, such as firewalls that block viruses and filters that winnow out valid e-mail from spam, “violate” this layered structure. From a technical point of view, there is no convincing reason why Internet regulations should be more respectful of the OSI model than is ordinary hardware or software. The loss of this criterion does not negate the validity of his other principles, however, as each stands independently of the others.

GLOBAL MEDIUM, LOCAL LAWS is a significant book not only because of its subject, but also because it illuminates the larger problem of international regulation of the Internet. As it continues to grow in importance as a vehicle for commerce and communication, the Internet will generate complex problems that challenge various nations’ fundamental legal principles. Bastiaan Vanacker has made a significant contribution by his clear, penetrating analysis of a particularly knotty example of the kinds of issues we will be confronting in the future.

REFERENCES:
International Telecommunication Union. INFORMATION TECHNOLOGY OPEN SYSTEMS INTERCONNECTION BASIC REFERENCE MODEL: THE BASIC MODEL. http://www.itu.int/rec/T-REC-X.200-199407-I/en/

Solum, Lawrence B. and Minn Chung. 2004. “The Layers Principle: Internet Architecture and the Law.” NOTRE DAME LAW REVIEW 79 (April): 815-948.

Zittrain, Jonathan. 2003. “Internet Points of Control.” BOSTON COLLEGE LAW REVIEW 44 (March): 653-88.

CASE REFERENCES:
PLANNED PARENTHOOD OF COLUMBIA/WILAMETTE, INC. v. AMERICAN COALITION OF LIFE ACTIVISTS 290 F.3d 1058 (2002).

RENO v. ACLU 521 U.S. 844 (1997).

YAHOO! INC. v. La LIGUE CONTRE LE RACISME ET L’ANTISÉMITISME, 169 F. Supp. 2d 1168 (N. D. Cal. 2001).

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© Copyright 2009 by the author, Robert G. Brookshire.

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THE EVOLUTION OF THE FOURTH AMENDMENT

by Thomas N. McInnis. New York: Lexington Books, 2009. 334pp. Cloth $80.00. ISBN: 9780739129760.

Reviewed by Raymond G. Kessler, Department of Criminal Justice, Sul Ross State University. Email: rkessler [at] sulross.edu.

pp.837-840

Many observers of the Fourth Amendment suspect that its protections have declined since the Warren Court days. Thomas McInnis’ book confirms that observation. Each chapter, except the first, starts with an illustrative case and ends with an “Illustrative Case Reprise.” With these sections, the author attempts to provide greater insight into some of the main points of the chapter. Some readers may find this feature helpful. Others may find it less so. All chapters except the first and last have helpful “Conclusion” sections.

Chapter 1 is a Prologue. As suggested by the title, the goal of the author is to trace the evolution of the Fourth Amendment in Supreme Court caselaw through 2007. McInnis contends that the Court has struggled, and continues to struggle, to provide consistency and predictability in its Fourth Amendment decisions.

The second chapter provides a short review of the historical background of the adoption of the Fourth Amendment, and the Supreme Court’s early treatment of the Amendment. The law developed slowly, and by the end of the nineteenth century, the Court heard only five Fourth Amendment cases. In its decisions in the early 1900s the Court began developing what McInnis terms the “traditional model.” According to this model, the Fourth Amendment dictates a strong preference for warrants. The two clauses of the Amendment are linked and warrantless searches are unreasonable unless they fall within a few well-delineated “reasonable” exceptions. At first, other than consent, these exceptions required arrest or search probable cause and some exigent circumstance. In chapters 3 through 7, all the landmark cases and important doctrinal changes are discussed.

One of the most interesting parts of the book involves the Warren Court and how, in spite of its liberal reputation, it laid the doctrinal groundwork that later Courts used to cut back on the traditional model and an expansive view of the Fourth Amendment. Although the Warren Court greatly expanded Fourth Amendment rights, it created some precedents that would later be used to limit those rights. CAMARA v. MUNICIPAL COURT (1967) and SEE v. CITY OF SEATTLE (1967) did not involve searches for evidence of crime - only building and other city code inspections. Those decisions, however, allowed warrants to be issued without probable cause or individualized suspicion, and ignored the particularity requirement. A rationale that approved searches under a highly flexible and subjective reasonableness approach became established. Reasonableness was tested by balancing the degree of intrusion on rights against the government interest. The traditional approach of a strong preference for [*838] ordinary search warrants, with limited categorical exceptions with probable cause and/or exigent circumstances, was ignored.

Even more problematic was the Court’s decision in TERRY v. OHIO (1968). Again, the Court used the balancing approach and, for the first time, allowed warrantless searches and seizures without consent in ordinary criminal cases on less than probable cause to search or arrest. Prior to this time, exceptions to the warrant requirement required consent, arrest or search probable cause and/or exigent circumstances. Probable cause was no longer a central feature of exceptions to the warrant requirement. Only Justice Douglas dissented.

McInnis defends these three decisions by arguing that they were motivated by the Court’s desire to ensure that the government practices involved were covered and limited by the Fourth Amendment. Of course, the Court could also do this by striking down the government action in all three cases. By validating stop and frisk and in failing to put strict limits on the reasonableness approach, the Warren Court set the stage for later conservative Courts, under Chief Justices Burger, Rehnquist and Roberts, to limit the protections of the Fourth Amendment.

The reasonableness approach spawned an even more toothless test termed “special needs.” Under this approach, the Court, for the first time allowed a search of an individual’s home without a warrant, consent or exigent circumstances. The special needs of a probation system allowed search of a probationer’s home on a reasonable basis for the search (GRIFFIN v. WISCONSIN, 1987). However, later, (e.g., FERGUSON v. CHARLESTON, 2001) the Court seems to have put some teeth in its special needs doctrine.

According to McInnis, the traditional approach with its emphasis on warrants, limited exceptions to the warrant requirement, and probable cause has now largely been reduced to empty rhetoric. It has been replaced by a reasonableness approach that is so flexible and fluid that it has become a “slippery slope rather than bedrock” (157). The preference for warrants is now cant which has been replaced by a reasonableness approach that opens the door for a multitude of searches and seizures without warrants, probable cause or even individualized suspicion.

McInnis notes that in addition to expanding the reasonableness approach at the expense of the traditional preference for warrants, post-Warren Courts have used a number of doctrinal techniques to curtail Fourth Amendment protection. The doctrine of standing has been limited to restrict defendant’s ability to invoke the Fourth Amendment The definitions of a “search” and “reasonable” and/or “legitimate” expectation of privacy have been limited. Bright-line rules that benefit law enforcement have been drawn up to replace case-by-case analysis. New exceptions to the exclusionary rule and the general preference for warrants have been created. Existing exceptions have been expanded. The exclusionary rule is now viewed as a judicially created remedy, the only purpose of which is to deter police misconduct. Judicial integrity has been long forgotten. Further, the rule will be applied only [*839] when the deterrent effect outweighs the “costs to society.”

Another interesting point is how many of the decisions and doctrines used to erode the traditional model came from liberal Justices. In addition to the Warren Court cases discussed above, Justice Blackmun, not often accused of being a conservative Justice, laid the groundwork for the special needs test in his concurrence in New Jersey v. TLO (1985). Not even the current Court’s most liberal Justices (Stevens, Breyer and Ginsburg) seem to be ardent protectors of the Fourth Amendment. McInnis notes that in the six Roberts Court decisions he analyzed, the Court was unanimous in the five supporting the government position.

McInnis also notes that the Court is caught in a vicious circle. Over many years, various “Courts have also recognized that often the inability to follow the law was due to the complexities of law the Court has developed, not the government’s desire to flagrantly violate the law” (290). To compensate for this, the Court has created more exceptions to the exclusionary rule and doctrines to justify government action when the mistakes could be deemed understandable.

The final chapter discusses the future of the Fourth Amendment. In a telling quote, McInnis notes one the great controversies of law and politics in this country. He writes: “Individuals may disagree with the positions of the post-Warren Courts that we have more to fear from criminals [and terrorists] than an overbearing government, but that is the conclusion they reached” (290).

As in other areas of the law, a badly divided Court has failed to provide consistent theory and results. Stare decisis and consistency seems to be of little importance to either liberals or conservatives. Another example, released after publication of the book, is ARIZONA v. GANT (2009). Ad hoc and subjective decision-making can be expected to continue. Anti-terrorism efforts, including the USA Patriot Act, and technological advancements, including new surveillance tools, will create new challenges to Fourth Amendment values. The Roberts Court can be expected to continue the reasonableness approach and give preference to security and order concerns.

Further, McInnis notes criticism of the traditional model and support for reasonableness approaches, but does not spend enough time on these issue. Justice Scalia (concurring in CALIFORNIA v. ACEVEDO, 1991) and others, (e.g., Amar 1994) argue that the Framers did not intend to create a preference for warrants. McInnis does not give enough time to the argument that the purpose of the warrants clause is only to prevent the issuance of general warrants--a British practice hated by the colonists. Warrants insulated British officials from liability, and the Framers wanted to make sure that general warrants would not provide such immunity in the future. Further, it can be argued that unlike the current rudderless reasonableness approach, a principled reasonableness approach that seriously respects Fourth Amendment values is closer to the real purpose of the “unreasonable searches” clause. [*840]

This is a very valuable work for students of the Fourth Amendment. It is well-documented, has an Index, Table of Cases, and an extensive Bibliography. McInnis’ work is relatively easy reading and covers the landmark cases in a concise but clear manner.

REFERENCES:
Amar, A.R. 1994. “Fourth Amendment First Principles.” HARVARD LAW REVIEW 107: 757-819.

CASE REFERENCES:
ARIZONA v. GANT, 556 U.S. ___, 129 S.Ct. 1710 (2009).
CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967).
CALIFORNIA v. ACEVEDO,500 U.S. 565 (1991).
FERGUSON v. CHARLESTON,. 532 U.S. 67 (2001).
GRIFFIN v. WISCONSIN, 483 U.S. 868 (1987).
NEW JERSEY v. T.L.O., 469 U.S. 325 (1985).
SEE v. CITY OF SEATTLE, 387 U.S. 541 (1967).
TERRY v. OHIO, 392 U.S. 1 (1968).

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© Copyright 2009 by the author, Raymond G. Kessler.

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BENCH PRESS: THE COLLISION OF COURTS, POLITICS, AND THE MEDIA

by Keith J. Bybee (ed). Stanford: Stanford University Press. 2007. 240pp. Cloth. $29.95. ISBN: 9780804756778.

Reviewed by Michael McCann, Department of Political Science, University of Washington. Email: mwmccann [at] u.washington.edu.

pp.831-836

Keith Bybee’s edited volume makes a unique contribution to the study of judicial politics. The unifying theme of the book is the tension between the “two faces of judicial power” – one reflected in the principle of judicial independence, the other in concerns that courts must be limited by other branches of government and/or accountable to “the people.” Scholars at Syracuse University conducted the Maxwell Poll to probe how these contradictory commitments play out in public opinion and then organized a conference bringing together scholars, judges, and journalists to discuss their implications for US legal culture. Among the most important implications discussed by the authors is a concern that the citizenry increasingly views courts as “political” or partisan in character, thus undermining the foundations of their legal authority and perhaps the authority of law generally.

The book organizes the essays written for that conference in a simple, sensible format. It begins with a superb introduction by the editor. Bybee outlines the core themes initially by reference to the tension between Hamiltonian arguments for “complete independence of the courts” and the Anti-Federalist fear of a politically insulated judiciary. He then offers a fairly detailed discussion of the Maxwell Poll findings that American citizens tend to confirm both the ideals of judicial independence and the facts of increasing judicial politicization, which is related to a variety of other complexities in opinions about courts and judges, some but not all of which split markedly along partisan lines. One of the more interesting and important dimensions of this complexity concerns the mass media, which is both the routine source of public knowledge about judicial practice and for many a causal force contributing to growing perceptions that judges act on their policy preferences rather than enacting law. “The poll results not only illuminate the contradictory contours of public opinion but also suggest that the public’s beliefs are closely related to the way in which the media covers the courts” (p.2). Hence the volume’s clever title. One virtue of this pithy but substantively rich introduction is that a reader can quickly form solid judgments about whether to continue reading all or parts of the book.

Part 1 includes two scholarly reflections on the arguably increasing public perception that judges “talk law but do politics.” Charles Gardner Geyh’s initial chapter documents the historical rise of efforts to ensure public confidence in the courts by regulating the appearances of judicial impropriety. He notes that concerns about judicial impartiality grew with the emergence of image-based, sound-byte obsessed mass media and their impact in shaping public [*832] perceptions of courts as results-oriented and partisan. The parallels between this trend in mass media and the concurrent development of legal realism among elite jurisprudes goes unexamined in the essay but are worth reflection. In any case, Geyh shows that the ABA responded with the Canons of Judicial Ethics, now enforced in all fifty states, requiring judges to eschew appearances of impropriety and to safeguard against perceptions of partiality. These modes of regulation arguably undercut free speech rights of judges and prevent them from speaking out in the marketplace of ideas so they can in turn be judged. Geyh doubts the regulations will be relaxed and suggests that this may be a good thing.

G. Alan Tarr’s Chapter 2 extends Geyh’s concerns by confronting the “hyper-politicization” (p.53) that has attended state judicial elections. Tarr shows how flirtations with “merit selection” processes at the state level during the 1960s and 1970s have succumbed to an upswing in judicial elections over the last thirty years; 39 states use elections for selecting or reelecting state Supreme Court justices (p.54). Moreover, these judicial electoral campaigns, and the sensationalistic press that follows them, have become increasingly “noisier, nastier, and costlier.” While not all elections fit this image, Tarr suggests that the public perception of a few high profile ugly elections tends to be generalized. “The perception that judicial decisions generally reflect judicial predilections or idiosyncrasy rather than simply the legal merits of the case weakens considerably the rule-of-law argument for judicial independence” (p.67).

Together, these first two essays sound alarms about the declining sense that traditional norms associated with judicial independence and [*833] impartiality are withering. Moreover, “. . . . the genie cannot be put back in the bottle,” notes Tarr (p.69). The only question is how we make the best of a trying situation, which is the subject of the remaining essays.

Part II offers four essays written by sitting judges and together provide something of a reassuring response that, despite politicizing influences of money, public pandering, and media sensationalism, judges can sustain perceptions of integrity, independence, and impartiality. Alabama Supreme Court Justice Harold See leads off with a very thoughtful, subtle, well supported discussion comparing judicial selection processes in the US, focusing on who does the selecting and the restrictions on the appointment. He then assesses the selection methods according to the relative “independence” and “quality” of judging that they generate. See finds that popular election of judges has its upsides as well as downsides; the choice between appointment and election is a matter of “tradeoffs.” He argues that money and organized power of interested parties influence all selection processes, and cannot really be excluded. At least popular elections increase publicity and transparency that might expose undue influence or bias in ways that backroom politics does not.

In Chapter 4, James E. Graves, Jr., a Justice on the Mississippi Supreme Court, tends to agree with See that all judicial selection processes are subject to political influence. But Graves suggests that judicial independence and impartiality are less determined by how judges are selected than how judges choose to play their roles once they don the robes. He offers a substantial reflection on the impact of BROWN v. BOARD OF EDUCATION to illustrate how courts can use the mass media to educate the citizenry in civic virtue. John M. Walker, Jr., Chief Circuit Judge of the US Court of Appeals for the Second Circuit, advances a similar argument in Chapter 5 through this “thoughts on the Roberts and Alito hearings” and the federal judicial selection process generally He agrees with Graves about the responsibility of judges to decide cases through impersonal reasoning, and he argues for a “new partnership” between the media and judges that helps the public understand the distinctive differences between legal reasoning and political preference.

Joanne F. Alper, a Virginia Circuit Court judge, concludes the section with Chapter 6. She goes further than others in underlining that it is imperative for the public to understand what judges actually do, i.e. that judges become effective by displaying intellect, patience, and fairness that reduces their biases or result-oriented inclinations. She draws on her own experience as a judge in Virginia. In that state, judges are selected by legislators in the General Assembly assisted by a Joint Judicial Advisory Committee, a process that facilitates the public campaigning of judges without the financial costs and other downsides of popular election. In short, “proponents of Virginia’s system of legislatively electing judges emphasize that this process maintains judicial independence, ensures that judges rely solely on the law, not politics or popular views, and maintains the public’s high regard for Virginia’s judiciary” (p.144).

Given that Part I lays much blame on the mass media while authors in Part II hold out much hope that judges can more effectively use the media for legal education, Part III provides a fitting forum for journalists to weigh in on the related issues. In Chapter 7 Mark Obbie, a former reporter turned journalism professor, looks at how two leading national newspapers reported on the Supreme Court nomination of Justice Samuel Alito to assess the extent of “results-oriented legal journalism.” The author finds that half of the news accounts displayed the latter tendency and failed to report much that is relevant to law. He thus makes a plea for improved journalism. While his proposed solution is vague, Obbie’s study is full of interesting textual quotations from news coverage; it offers splendid (if missed) opportunities for engaging with Justice Walker’s earlier cheery claim that “the confirmation hearings for . . . Justice Alito were for the large part dignified and conducted with respect for the judiciary and the nominee” (p.128).

Dahlia Lithwick, senior editor and legal writer for Slate.com., examines the quality of legal reporting on the Internet in Chapter 8. Not surprisingly, she observes that the Internet offers a wider array of potential sources of information and perspectives about courts than do conventional news sources. If one looks at most people’s actual usage practices, however, the information sources they tap tend to be quite narrow and limited. The Internet thus can be a great resource for information that facilitates open [*834] dialogue for those willing to invest and work. But it also can debase public understanding and discourse, creating the illusion of reliable information. The essay ends with an optimistic view of the democratic potential of the Internet and, again, an ode to responsible choices. “As is so often true in a democracy, the choice is ours to make” (p.184).

In Chapter 9, Tom Goldstein, another senior reporter and journalism professor, offers a more skeptical view about the prospects for developing better communication between media and courts, or reporters and judges. While things can be improved, he underlines a fundamental “distance” and tension between the message that judges want to communicate and the more disruptive commitment to “exposure” that makes reporters unreliable allies or megaphones for judges’ messages. “Better coverage,” he argues, is not the same as the “more positive coverage” that judges want. The essay draws widely on journalistic experience and anecdotes, and it is a welcome contribution. Finally, the Afterword by Anthony Lewis, the renowned former columnist for The New York Times, suggests that the present balance between contrasting views of courts – as at once impartial and yet political – is likely to yield toward an increasingly more skeptical view that privileges focus on judicial results over reasoning. Like others, he blames the problem more on public misunderstanding or ignorance rather than informed opinion. If there is a silver lining, he concludes, it is Americans’ normative commitment to judicial independence.

Overall, the book is remarkably cohesive in its thematic focus. It is also well organized, generally well written, and largely free of academic jargon. The essays are uneven, as is typical in such volumes. In particular, even my cursory summary of the essays makes clear that there is a palpable tension between the complex institutional analysis of the issues at stake offered by some authors (mostly scholars), on the one hand, and the wispy odes to “responsibility” and moral choice offered by judicial and journalistic professionals, on the other hand. Some readers might complain that the book is seriously lacking in the type of more systematic, rigorous analytical and empirical inquiry that is common in extant scholarly study. But one could also view this as one of the book’s strengths. For one thing, the collection provides unique interpretive insights into the intersubjective worlds shared by the most important producers of legal knowledge in contemporary mass society. The paucity of sophisticated institutional analysis and inclination toward self-regulating, “responsibilizing” responses offered by judges (except for Harold See) and reporters that the book documents exposes the narrow logics of official law talk in action, and these themes are a great starting point for critical discussion in the classroom.

Moreover, the book could provide a great point of departure for engaging with a variety of studies by socio-legal scholars in a course on contemporary courts and politics. For example, it would be interesting to interrogate the alarm expressed by this book about the politicization of high courts in light of John Brigham’s fascinating argument about the institutionalized “cult” of deference to the Supreme Court as final authority (1987). Or, for something very [*835] different methodologically and epistemologically, the work by Jim Gibson and his colleagues (Gibson 2008; Gibson, Caldeira, and Baird 1998) on judicial legitimacy and public opinion would be a fascinating basis for developing further the themes raised by Bybee’s book. Each of these different types of studies offers reason to question whether the legitimacy of courts is fragile. At the same time, it would be interesting to put this book into conversation with research on media coverage of legal practices outside of appellate or high courts. For example, how does media coverage of ordinary civil disputing and the related rhetoric about a “litigation crisis” (see Haltom and McCann 2004) parallel, amplify, or conflict with media coverage of high courts? Or how might popular perceptions of high courts be affected by popular culture – by movies, novels, television, lawyer jokes, and the like (see McCann and Haltom 2008; Sarat, Douglas, and Umphrey 2005; Galanter 2005)? This book does not directly engage these or other relevant literatures, but there is great potential for doing so in the classroom.

Finally, this reviewer found it surprising that nearly all the essays treated the tension between images of judges or courts as either inherently legal or political, impartial or partisan, independent or politically interdependent, as vexing “problems” that needed to be overcome or solved. A dark sense of moralistic anguish and apprehension about the status of judges, courts, and the rule of law shrouds much of the volume. None of the essays embraced the tension as either inescapable or desirable. To his credit, Professor Bybee, the editor, raises this point briefly at the end of his Introduction, which leads me to wish that he had contributed a longer essay of his own. He notes that many socio-legal scholars have convincingly contended that law, or legal ideology, thrives precisely by sustaining such contradictions or tensions (Scheingold 1974; Ewick and Silbey 1998). Such a recognition that wariness and faith, skepticism and trust, can coexist in healthy ways seems somewhat foreign to most essays, except Bybee’s, however. But, again, this omission makes the book a potentially fascinating text for study of how contemporary knowledge about courts is reproduced in public legal discourse and how it matters for politics.

REFERENCES:
Brigham, John. 1987. THE CULT OF THE COURT. Philadelphia: Temple University Press.

Ewick, Patricia, and Susan S. Silbey. 1998. THE COMMONPLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: University of Chicago Press.

Galanter, Marc. 2005. LOWERING THE BAR: LAWYER JOKES AND LEGAL CULTURE. Madison, WI: University of Wisconsin Press.

Gibson, James L. 2008. “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New-Style’ Judicial Campaigns.” AMERICAN POLITICAL SCIENCE REVIEW 102 (#1, February): 59-75. [*836]

Gibson, James L., Gregory A. Caldeira, and Vanessa Baird. 1998. “On the Legitimacy of National High Courts.” AMERICAN POLITICAL SCIENCE REVIEW 92 (#2, June) 343-358.

Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago: University of Chicago Press.

McCann, Michael, and William Haltom. 2008. “Ordinary Heroes vs. Fallen Lawyers: Public Interest Litigation in the Movies,” LAW AND SOCIAL INQUIRY. Vol. 33: 4, 1043-1078.

Sarat, Austin, Lawrence Douglas, and Martha Merrill Umphrey (eds). 2005. LAW ON THE SCREEN. Stanford, CA: Stanford University Press.

Scheingold, Stuart S. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. New Haven, Ct: Yale University Press.

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© Copyright 2009 by the author, Michael McCann.

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BEFORE EARTH DAY: THE ORIGINS OF AMERICAN ENVIRONMENTAL LAW, 1945-1970

by Karl Boyd Brooks. Lawrence, Kansas: University Press of Kansas, 2009. 288pp. Cloth $34.95. ISBN: 9780700616275.

Reviewed by Wesley T. Milner, Department of Law, Politics and Society, University of Evansville, wm23 [at] evansville.edu.

pp.827-830

As we quickly move toward the pivotal United Nations Climate Change Conference in Copenhagen this December, there is increasing debate over environmental degradation and the law that is emerging to combat it. In most environmental law classes, the opening bell usually sounds around the first Earth Day in 1970, if not a couple of years before. School children around the country know that this special day comes every spring and cajoles us to focus on mother earth and how to protect the fragile ecosystem. Since that rallying call, most of the well-known (or notorious, depending on your position) legislation has been forged in Washington and state capitals around the country. In their popular text, Kubasek and Silverman (2007) point out that over two dozen federal laws were indeed implemented in the decade from 1969 to 1979. These include the National Environmental Policy Act, Federal Clean Air Act, Federal Water Pollution Control Act, Clean Water Act, Federal Safe Drinking Water Act, and Superfund (CERCLA). Even the venerated National Resources Defense Council still argues on their website that environmental law “. . . has only been around since about the time of the first Earth Day.”

In a work that proudly admits it is swimming against the current, Karl Boyd Brooks argues that the twenty-five year period before 1970 is a pivotal era of legal wrangling that has previously not been fully examined. Following the early work of William Hurst (1964) who studied the lumber industry in 19th century Wisconsin, Brooks attempts to expose just how, when and where this American environmental law was created immediately after WWII. He proposes to accomplish this not by focusing on Washington and the federal register, but rather by looking at individual actions of local and state players, such as lawyers, judges, clients/interests and elected officials. Further, he contends that an environmental history of environmental law needs to explain how the field links people and nature since both have affected the outcome.

Brooks is very straightforward from the start in laying out a number of key questions that he will spend the next 200 pages answering. Though he is an historian, lawyer, and former state legislator, the author approaches the subject like a social scientist. He argues that the primary changes in legal thinking and action came long before elected officials weaved them into statutory fabric. This is in keeping with John Adams’ assessment of the American fight for independence and revolution where citizens changed their hearts and minds even before the war commenced. [*828]

Much of the first chapter is spent recounting (and setting up the straw man for) all the numerous scholars and texts that stubbornly hold on to the notion that virtually all environmental law commenced after 1970. Chapter Two painstakingly goes back to the early days after World War II to seek the real origins of the seed planting for environmental law. In Missouri, the transition to peace from the protracted depression and then years of war provided prosperity and opportunities for creative environmental lawmaking. These included the Fish and Wildlife Coordination Act (FWCA) and the new procedures crafted by the Administrative Procedure Act (APA), both enacted in 1946. The progress in legal principles and political practices in the first five years of the postwar era would propel the country through the early years of the turbulent Cold War and toward securing these victories in the mid to late 1960s. Here, Brooks reverts to his historical roots and highlights a number of pioneers from the trenches in state conservation departments to the halls of Congress and U.S. Fish and Wildlife offices. Key to the success of this early experiment was the emergence of a fledgling coalition consisting of returning veterans and civilians affluent enough to enjoy pastimes such as hunting and fishing. Representatives, such as Willis Robertson from Virginia, played a pivotal role in promoting the environment and adeptly fought President Truman’s development strategy of placing federal dams throughout the Missouri, Columbia and Mississippi watersheds.

Chapter Three delves into the weeds of environmental lawmaking by focusing on the minutia of the administrative state. Brooks notes that the administrative state had expanded from necessity and design in order to address the aftermath of depression and world war. Administrative critics pushed for more open procedures on agencies and judicial review of agency policies to protect constitutional rights (especially concerning property, due process, equal protection, and liberty). Brooks provides numerous examples of how lawmakers empowered administrators to regulate the environment across the country. The intense and increasing interactions of the various players (e.g., state administrators and politicians, Congress, federal judges, citizens, and federal natural resource agencies) forged the basic building blocks for environmental law making. Further, the judicial review stemming from APA “. . . empowered a wide range of citizens to use administrative law to make some of America’s most important environmental law during the Cold War era” (p.58).

Chapter Four illustrates how rising pressure on natural resources, coupled with increased concerns for public health, empowered local and state governments to regulate private behavior. This new federalism ushered in dramatic laws especially focused on air and water quality. Brooks further argues that federal and state statutes during this period actually (if not unintentionally) altered the judicial branch. Judges from state benches to the Supreme Court found that guarding constitutional rights resulted in their playing a more salient role in environmental lawmaking. Here, the author paints an informative and entertaining picture of the epic battle between Justices William O. Douglas and Felix Frankfurter concerning the [*829] proper relationship between federal courts and executive agencies.

Chapters Five and Six examine the nationwide spread of environmental concerns and the subsequent push for national regulations to address the increasing impact of post-World War II life in the U.S. Notwithstanding his acknowledgement of Rachel Carson’s seminal work in 1962, Brooks is consistent in his argument that the heavy lifting was actually performed by Carson’s predecessors (e.g., Aldo Leopold 1949) well before the early 1960s. While Carson may have jettisoned environmental concerns into popular culture, the transformation of American society was already well underway. Here, he raises three cultural shifts that occurred before 1962: the proliferation of outdoor recreation, the expansion of suburbs, and the flowing of prosperity to a wide swath of the population. This consumer frenzy slowly galvanized some citizens to question seriously post-war consumption and land use practices. Brooks chronicles a number of successful writers (from popular magazines to novels) who adeptly exposed the dilemma of this rampant and wasteful growth.

Because of the borderless nature of pollution, average citizens and lawmakers soon realized that even creative state approaches to regulation were not sufficient, and national rules would be needed to impact real change. Disputing noted scholars such as Richard Andrews (1999) and Richard Lazarus (2004) who argue that states and local players rightly ceded power to the nationalization of environmental law, Brooks maintains that this process of nationalization was well underway during the 1960s. Further, the 1962 Federal Water Pollution Control Act Amendments simply continued the national process that was started in 1948 and accelerated in 1956. The author continues in meticulous fashion to relay a number of convincing victories from California’s pacesetting statewide air quality regulation in 1959 to President Johnson’s signing of the 1963 Clean Air Act, which itself was modeled on the water quality act from two years before.

One such story undergirding Chapter Seven highlights a lone, crusading, environmental lawyer representing the Idaho Wildlife Federation. In unlocking the extensive files of Bruce Bowler, Brooks exposes a sixty-year career that helped forge American environmental law. Bowler and others like him from the Northwest in the 1950s and 1960s defined the new arena of law. This included, “citizen standing to participate in administrative and judicial proceedings; national pollution control standards enforced by state action; natural resource agency democratization; ‘public interest’ broadened to encompass environmental objectives; mass media scrutiny of environmental issues; and a political movement that crossed state lines, stretched partisan boundaries, and blurred older economic and ethnic divisions” (p,149).

In his penultimate section, Brooks turns his sights away from politicians and the rank and file citizenry to the existing legal profession and its training grounds. He draws upon a disparate group of well-known practicing attorneys and law professors from around the country to drive his point home once again that environmental law was not an immediate phenomenon in 1970, but rather an [*830] example of incremental and nuanced change that had emerged from a quarter century of hard work. In examining these scholars’ and practitioners’ writings, Brooks provides rather convincing evidence that the conventional wisdom was even being challenged 40 years ago.

Brooks finally closes not with a bang, but with a whimper. While his writing is cogent throughout, he concedes that environmental law (whether or not the reader is convinced that it developed long before 1970) is perhaps not up to the challenges of the twenty-first century. During this period of emerging environmental law and “awareness,” citizens continue to buy large vehicles, contribute to urban sprawl, consume large amounts of energy, patronize corporations that waste natural resources, and require a lifestyle of comfort and leisure that is simply unsustainable. Having said that, he does issue a call to arms to the next generation of environmental lawyers and concerned citizens. Overall, this substantial work will no doubt excite environmental historians and policy wonks, but is not necessarily applicable to undergraduate environmental studies students or freshmen law school attendees.

REFERENCES:
Andrews, Richard. 1999. MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY. New Haven, Connecticut: Yale University Press.

Carson, Rachel. 2002. SILENT SPRING. Boston: Houghton Mifflin.

Hurst, Willard. 1964. LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE LUMBER INDUSTRY IN WISCONSIN, 1836-1915. Cambridge, Massachusetts: Belknap Press of Harvard University.

Kubasek, Nancy and Gary Silverman. 2007. ENVIRONMENTAL LAW, 6th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall.

Lazarus, Richard. 2004. THE MAKING OF ENVIRONMENTAL LAW. Chicago: University of Chicago Press.

Leopold, Aldo. 1949. A SAND COUNTY ALMANAC. New York: Oxford University Press.

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© Copyright 2009 by the author, Wesley T. Milner.

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