The Constitutional Protection of Freedom of Expression by Richard Moon (review)

HUMANITIES 139 chapter. A chief figure in British political pluralist thought in the early part of the twentieth century, Laski believed that citizens derived meaning and identity from the multiplicity of associations to which they belonged. England was, in this way, a federal society. Federalism of this sort could be viewed in all of the places where citizens participated in self-government, whether it be the shop floor, church, municipal council, or school. The object of the pluralist project was to make Britain=s constitutional order reflect these institutional facts. >To multiply the centres of authority is to multiply the channels of discussion and so promote the diffusion of healthy and independent opinion,= wrote Laski in The Grammar of Politics (1925). Laski admitted that >liberty= was enhanced by associational politics, but selfgovernment was the primary aim of the pluralist movement, not the constraint of political power. By contrast, the pluralist vision pursued in this book is both cramped and overbroad. Simple bicamerialism B the constitutional design of upper and lower houses B is sufficient to qualify as pluralist. So is the institution of judicial review in Britain and the United States. In contrast, the pluralists viewed the English judiciary as agents of a centralizing state authority which limited the capacity for group life. Nor is the relationship of the judiciary to dominant political or economic power broached in Gordon=s account. If the judiciary largely is representative of elite interests, then the power of the judiciary countervails only in one direction: on behalf of the already privileged few. Regrettably, these are matters that Gordon prefers not to address. In the light of the events surrounding the recent United States presidential election, one might want instead to question the legitimacy of countervailing institutional power that this book so unabashedly celebrates. (DAVID SCHNEIDERMAN) Richard Moon. The Constitutional Protection of Freedom of Expression University of Toronto Press. ix, 312. $65,00, $24.95 Freedom of expression is perhaps the most lofty, and the most elusive, of ideals to which constitutional democracies aspire. Lofty because its value to individuals, society and governance is rarely questioned. But elusive because the relationship between the ideal and the real is especially difficult to comprehend except in the most blatant cases of state censorship. Does freedom of expression authorize union officials to gain access to private property to speak with workers? Does it prohibit discrimination among those who wish to purchase advertising space in a newspaper? Does it authorize corporations to rely on sexually explicit images to promote their products? The turbulence of civil society continually produces vexing challenges to the constitutional commitment to freedom of expression B 140 LETTERS IN CANADA 2000 challenges that are not easily resolved by appealing to its abstract status as a fundamental right. In his superb new book, The Constitutional Protection of Freedom of Expression, Richard Moon explores the relation between the ideal and real by asking what it is about freedom of expression that merits constitutional respect. This, of course, is not a new question. John Stuart Mill famously argued that protecting freedom of expression furthers the pursuit of truth. Others have noted that freedom of expression promotes democratic governance by encouraging the free flow of ideas necessary for democratic deliberation and self-government. Still others have argued that freedom of expression possesses inherent value to the individual, regardless of any instrumental relation to truth or democracy, because expression is an essential exercise of individual self-realization. Moon explores the strengths and weaknesses of traditional justifications of freedom of expression and argues that they all share an >unstated premise= that reveals the ultimate significance of the guarantee. Freedom of expression merits constitutional respect, according to Moon, because of the >social nature of individuals and the constitutive character of public discourse.= Moon develops this powerful thesis by arguing that freedom of expression requires not the protection of an individual=s independence from others but instead the protection and creation of communicative relationships. He explores this conception of the guarantee in several challenging contexts in which freedom of expression is asserted in the face of public or private power, including cases involving commercial and political advertising, the regulation of pornography, racist expression, access...