Tolerance Theory and the First Amendment
![handle is hein.journals/mlr85 and id is 1157 raw text is: TOLERANCE THEORY AND THE FIRST
AMENDMENT
James L. Oakes*
THE TOLERANT SOCIETY: FREE SPEECH AND EXTREMIST SPEECH
IN AMERICA. By Lee C. Bollinger. New York: Oxford University
Press. 1986. Pp. viii, 295. $19.95.
Freedom of speech, according to Lee Bollinger's The Tolerant So-
ciety, is no longer a simple slogan or rubric by which we protect speak-
ers against governmental regulation. It is, or has become, in the
United States in this century, a method of social interaction which
benefits, within wide bounds, the tolerator (and perforce his or her so-
ciety) as much as, or more than, it does the tolerated (whose own intol-
erance as expressed in his extremism may be better exposed by the
tolerance of it than by its censorship).
Utilizing the extreme Skokie case both as springboard/catalyst
and checkpoint, Professor Bollinger reexamines the theory, function,
and role of free speech in our society. His underlying premise is that
extremes are not to be understood as the peripheral cost of an inevita-
bly imperfect world... but rather as integral to the central functions
of the principle of free speech (p. 133). He argues forcefully that the
constitutional principle of free speech has taken on important new
meaning in this century (p. 244). He constructs a general tolerance
theory (Chapter Eight). This involves tolerance of extremist speech
(e.g., the Nazis' march, swastikas displayed, in a community com-
posed largely of holocaust survivors and descendants or relatives of
survivors). It does not merely result in curtailing legal intervention at
the edge of social behavior, but rather effectuates a general social
ethic (p. 248). That ethic, involving the toleration of most (but not
all) extreme speech, Bollinger suggests, focuses not so much on the
speech or behavior of the speaker/believer as on the social interaction
among the listeners/observers (p. 10). By carving out this very area
for extraordinary self-restraint (p. 10), society is led to develop and
demonstrate a social capacity to control feelings (p. 10) by way of
self-examination and confrontation with the more complex, and less
comfortable, processes at work behind the desire to punish [extremist]
speakers, whether by legal or nonlegal means (p. 127). Confrontation
with extremism, then, should involve the recognition of the intoler-
ance in each of us (p. 127) and the ensuing dialogue - public and
* Judge, United States Court of Appeals for the Second Circuit. - Ed.
1135](ViewImageLocal?handle=hein.journals/mlr85&div=61&collection=journals&method=preview&ext=.png&size=3)
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Tolerance Theory and the First Amendment
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