Irony Of Free Speech / Edition 1

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Overview

How free is the speech of someone who can't be heard? Not very--and this, Owen Fiss suggests, is where the First Amendment comes in. In this book, a marvel of conciseness and eloquence, Fiss reframes the debate over free speech to reflect the First Amendment's role in ensuring public debate that is, in Justice William Brennan's words, truly "uninhibited, robust, and wide-open."

Hate speech, pornography, campaign spending, funding for the arts: the heated, often overheated, struggle over these issues generally pits liberty, as embodied in the First Amendment, against equality, as in the Fourteenth. Fiss presents a democratic view of the First Amendment that transcends this opposition. If equal participation is a precondition of free and open public debate, then the First Amendment encompasses the values of both equality and liberty.

By examining the silencing effects of speech--its power to overwhelm and intimidate the underfunded, underrepresented, or disadvantaged voice--Fiss shows how restrictions on political expenditures, hate speech, and pornography can be defended in terms of the First Amendment, not despite it. Similarly, when the state requires the media to air voices of opposition, or funds art that presents controversial or challenging points of view, it is doing its constitutional part to protect democratic self-rule from the aggregations of private power that threaten it.

Where most liberal accounts cast the state as the enemy of freedom and the First Amendment as a restraint, this one reminds us that the state can also be the friend of freedom, protecting and fostering speech that might otherwise die unheard, depriving our democracy of the full range and richness of its expression.

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Editorial Reviews

Toronto Globe and Mail

In this slim but provocative volume, Yale law professor Owen Fiss addresses an impressively wide range of free speech issues, from hate literature and pornography through campaign financing, public funding of the arts and regulating the media. It is essential reading for anyone dissatisfied with the civil libertarian rhetoric...and who seeks a more balanced liberalism in which the demands of equality are heard alongside those of liberty.
— Wayne Sumner

The American Lawyer

[A] sophisticated confection...Fiss, Yale Law School's Sterling Professor of Law, is a serious and learned academic, attuned to the myriad nuances of constitutional law...[He] declares that the First Amendment can be viewed not only as a protector of the individual interest in self-expression (the so-called libertarian theory of speech), but also as a protector of popular sovereignty and a force to broaden the scope of public discussion (the democratic theory of speech)...[Fiss's] intellect is stamped on every sentence in The Irony of Free Speech, which is destined, I'm sure, to become the fodder for a thousand law review articles.
— Joel Chineson

Journal of Information Ethics

Fiss makes many good points and stimulates thought on an increasingly important subject. The Irony of Free Speech is well worth the few hours that a careful reading requires.
— Robert Hauptman

New York Law Journal

[A] fine achievement. In addition to the virtues of brevity and conciseness, The Irony of Free Speech contains the much rarer merit of original thought on fundamental issues. Fiss undertakes that most difficult of tasks: to try to get us to think in a new way about old and familiar issues, and he does so with a clarity and precision, style and grace, that is both stimulating and impressive...On finishing The Irony of Free Speech, one knows that he or she has read something of genuine value and has had a real intellectual experience. Fiss's ideas stay in the mind, bouncing around, dislodging other previously held notions...[It] achieves all that a book can hope to achieve.
— Daniel J. Kornstein

ABA Journal

If managing to infuriate people across a wide range of the political spectrum is a reliable measure of an essay's value, then Owen Fiss' succinct and lucid new argument, The Irony of Free Speech, may well come to be considered epically successful...Fiss, a Yale law professor, is that odd dinosaur: an old-line liberal who has thought matters through carefully and at length, and who acknowledges his own value judgments.
— Paul Reidinger

Ethics

[Fiss's] comments are always thoughtful and illuminating.
— Robert Amdur

Booklist
Fiss contends that government plays a valuable role in maintaining public debate, and he makes several convincing arguments against the many legislators and advocates from across the political spectrum who strongly disagree with that simple postulate...Bolstering himself with a plethora of federal court precedents and solid legal scholarship, Fiss speaks volumes in fewer than 100 pages.
Toronto Globe and Mail - Wayne Sumner
In this slim but provocative volume, Yale law professor Owen Fiss addresses an impressively wide range of free speech issues, from hate literature and pornography through campaign financing, public funding of the arts and regulating the media. It is essential reading for anyone dissatisfied with the civil libertarian rhetoric...and who seeks a more balanced liberalism in which the demands of equality are heard alongside those of liberty.
The American Lawyer - Joel Chineson
[A] sophisticated confection...Fiss, Yale Law School's Sterling Professor of Law, is a serious and learned academic, attuned to the myriad nuances of constitutional law...[He] declares that the First Amendment can be viewed not only as a protector of the individual interest in self-expression (the so-called libertarian theory of speech), but also as a protector of popular sovereignty and a force to broaden the scope of public discussion (the democratic theory of speech)...[Fiss's] intellect is stamped on every sentence in The Irony of Free Speech, which is destined, I'm sure, to become the fodder for a thousand law review articles.
Journal of Information Ethics - Robert Hauptman
Fiss makes many good points and stimulates thought on an increasingly important subject. The Irony of Free Speech is well worth the few hours that a careful reading requires.
New York Law Journal - Daniel J. Kornstein
[A] fine achievement. In addition to the virtues of brevity and conciseness, The Irony of Free Speech contains the much rarer merit of original thought on fundamental issues. Fiss undertakes that most difficult of tasks: to try to get us to think in a new way about old and familiar issues, and he does so with a clarity and precision, style and grace, that is both stimulating and impressive...On finishing The Irony of Free Speech, one knows that he or she has read something of genuine value and has had a real intellectual experience. Fiss's ideas stay in the mind, bouncing around, dislodging other previously held notions...[It] achieves all that a book can hope to achieve.
ABA Journal - Paul Reidinger
If managing to infuriate people across a wide range of the political spectrum is a reliable measure of an essay's value, then Owen Fiss' succinct and lucid new argument, The Irony of Free Speech, may well come to be considered epically successful...Fiss, a Yale law professor, is that odd dinosaur: an old-line liberal who has thought matters through carefully and at length, and who acknowledges his own value judgments.
Ethics - Robert Amdur
[Fiss's] comments are always thoughtful and illuminating.
Robert Post
Fiss is one of the truly magisterial figures in contemporary American legal academics. He commands nearly universal respect for the depth and lucidity of his intellect, for the integrity and passion of his character, and for the breadth and purity of his scholarship.
George Kateb
A beautifully written work that is crammed full of provocative but disciplined thought. Like all of Fiss's writing, it combines moral commitment with a painstaking construction of reasoned arguments. It will make many angry, but I believe that the anger will be productive. The Irony of Free Speech will engender abundant discussion. Its limpidity, its flawless unfolding, its calmness of tone, its strength of mind, all conduce to making the book so impressive as to compel attention. A bracing, intellectual experience.
Publishers Weekly - Publisher's Weekly
Yale Law professor Fiss is a liberal, but not of the doctrinaire ACLU variety. In this brief but challenging book, he argues that state intervention might actually support free speech values. Issues of hate speech, pornography and campaign spending limits, Fiss writes, suggest difficult tensions between the ideals of liberty and equality. In the case of spending limits, he believes that court inquiry based on real-world effects rather than "content neutrality" would find that such limits support more speech. He acknowledges that similar findings might also be possible in the knottier cases of hate speech and pornography, though he is neither as certain, nor as explicit, as those in the critical race theory movement. Regarding federal grants to artists, he wants the NEA to consider not only artistic merit and decency but also "the public needs for self-governance." Saying that "arguably, all unorthodox ideas have claim under the first Amendment to public funding but perhaps those most unavailable to the public have the greatest claim," Fiss argues that funding the Robert Mapplethorpe exhibition thus provided vital views of the gay community. He does not, however, address how that exhibition might have offended some views of decency. Market influences on the press, Fiss suggests, keep certain worthy subjects from coverage; he also notes that the Supreme Court, whose recent speech decisions have a libertarian core, could justify removing support for public broadcasting. Instead he hopes that the court embraces an ironic truth: state action can enhance the freedom of speech. (Sept.)
Richard A. Glenn
In less than one hundred pages, Owen Fiss, Sterling Professor at Yale Law School, explains why the traditional presumption against the state (as the natural enemy of free speech) is misleading. Through an analysis of hate speech, pornography, campaign finance, funding for the arts, and access to the mass media, a central suggestion emerges: the state might become a friend, rather than the enemy, of free speech. The debate over free speech generally pits liberty, enshrined in the First Amendment, against equality, embodied in the Fourteenth. But there may be another way of looking at this issue that does not force the legal system, without constitutional guidelines, to choose between these two transcendent commitments. In THE IRONY OF FREE SPEECH, Professor Fiss distinguishes between a libertarian and democratic theory of speech. The libertarian view--that the First Amendment protects self-expression--appeals to the individualistic ethos and dominates American political culture. The foundation of this argument hinges on faith and fear: faith in the individual’s capacity to ignore or reject unacceptable speech, and to engage in effective counter-expression; fear that restrictions on speech will inevitably lead to the suppression of important political discourse and curtail useful social commentary as well as individual creativity. This theory, however, fails to explain "why the interests of speakers should take priority over the interests of those individuals who are discussed in the speech, or who must listen to the speech, when those two sets of interests conflict." Moreover, this view does not consider the silencing effects of certain speech, and the resulting damage to freedom of speech. The democratic theory values speech not because it is a form of self-expression, but rather because it is essential for collective self-determination. Democracy allows choices and presupposes that such choices are made against a background of public debate that is, in the words of Justice William Brennan, "uninhibited, robust, and wide-open." It is true that, in some instances (witness the anti-Communist crusade of the 1950s), the state will attempt to stifle free and open debate. In those instances, the First Amendment should prevent such abuse. In other instances, however, the state may have to further the "robustness" of public debate where powers outside the state are stifling speech. The state "may have to allocate public resources--hand out megaphones--to those whose voices would not otherwise be heard in the public square. It may even have to silence the voices of some in order to hear the voices of others. Sometimes there is simply no other way." Professor Fiss thus challenges the conventional notion that liberty must always trump other constitutional values, namely democracy and equality. (This notion has been enshrined in the Supreme Court’s recent First Amendment jurisprudence. See, for example, the flag burning decisions of 1989 and 1990). The First Amendment was not intended to protect individual expression; rather, its purpose was "to broaden the terms of public discussion." Equal participation is a prerequisite for free and open public debate. Therefore, the First Amendment must encompass the values of both equality and liberty; it includes by egalitarian implication an affirmative duty on the government to promote open public debate. Because the state has no principled, substantive means to resolve the conflict between liberty and equality, the state must act as a "fair-minded parliamentarian." Such a parliamentarian promotes vigorous expression, but is sensitive to excesses and the impact of those excesses on the quality of debate; does not seek to determine outcome, but to ensure robustness; and is aware of state oppression, but recognizes the state’s power to promote goals that are at the core of democracy. To accomplish these objectives, the parliamentarian may sometimes have to interrupt and say "Can’t you restrain yourself? You have been so abusive in the way you have put your point that many have withdrawn from the debate altogether." The core of this approach is that government can establish a "fair" process for regulating access to communication even though it cannot establish a "good" substantive vision of what content is best communicated. But it is here that the analysis encounters some problems. Regulating access in a sort of "one person, one minute" way seems egalitarian. But what is the egalitarian definition of and justification for regulating access to ensure "robustness"? For example, if forty-nine of fifty citizens at a school board meeting favor keeping the gymnastics program, does the "fair-minded parliamentarian" grant each person five minutes, or each side thirty minutes? Professor Fiss does not take the easy way out by claiming that hate speech, pornography, and campaign finance are not speech and, thus, are not deserving of any First Amendment protection. Rather, the author finds all three types of expression speech and worthy of some protection. True, hate speech might properly be characterized as "fighting words," "intimidation," or "harassment," but it is nonetheless speech. Pornography is "an expression ... most certainly part of the discourse by which the public understands itself and the world it confronts." Campaign finance is speech. The instruments needed to take the message to the public are equally expressive as the message itself. Nonetheless, he proposes regulation. In hate speech, pornography, and campaign finance, the threat to freedom coming from speech is that the speech will make it impossible for disadvantaged groups even to participate in the discussion. When this happens, "the classic remedy of more speech rings hollow. Those who are supposed to respond cannot." When the state regulates these areas, equality is a dominant factor. This equality, however, is not found in the Fourteenth Amendment, but in the First. The state’s concern here is not the social standing of groups that might be injured by certain speech. Rather, it is the First Amendment right of all groups to participate in the dialogue. (Therefore, he cannot agree with certain partisans, notably Catharine MacKinnon, who defend certain regulations by asserting the priority of equality. MacKinnon’s error seems to mirror the libertarians who assert the primacy of speech.) Thus, when the state regulates these forms of speech, it is honoring the First Amendment by ensuring the audience--the citizenry at large--that debate of public importance will be full and open. The regulations in question further, rather than limit, freedom of speech. In determining the constitutionality of such regulations, the judiciary should look to the overall effect of the action on public debate, asking itself, "Will the regulation actually enhance the quality of debate, or will it have the opposite effect?" Based on that criterion, Professor Fiss draws some conclusions. First, certain speech codes may be consistent with the First Amendment. By forbidding speech that silences disfavored minorities, the state "is merely exercising its police power to further a worthy public end." Second, pornography may be regulated because it tends to diminish the victim’s sense of worth (although the author provides no empirical evidence to support this conclusion), which necessarily has a silencing effect on the disadvantaged individuals. Third, campaign finance reform prevents the voices of the financially-challenged from being "drowned out." Professor Fiss admits that such regulation necessarily diminishes the speech rights of racists, pornographers, and the rich. But more is involved than freedom of speech. The state is trying "to establish essential conditions for collective self-governance by making certain that all sides are presented to the public." Relying on this democratic view of freedom of speech, Professor Fiss also advances arguments in favor of funding for the arts and an autonomous press. "NEA grants . . . free art from strict dependence on the market or privately controlled wealth and thus make an important contribution to furthering the value that underlies the First Amendment: our right and duty to govern ourselves reflectively and deliberately." Accordingly, NEA grants are not just permitted; they are constitutionally favored. (It is noteworthy, however, that Mr. Fiss supports funding for arts that increases the public’s understanding of homosexuality but not funding for art that advances "family values." The latter would simply "reinforce an orthodoxy.") Because market considerations constrain the press (and hence the people’s right to be informed properly), Professor Fiss also suggests more federal funding for public broadcasting. The challenge, according to the author, is to move from a libertarian theory of free speech to a democratic theory and to recognize that the state can be friend to free speech. When the state censors certain speech, it frees public deliberations from a strict dependence on the market and enhances public debate. (This analogy is intriguing: government can enhance the "marketplace of ideas" by insulating speech from the rigors of the economic market. Apparently, less market equals more market.) The irony of free speech is this: Sometimes we must lower the voices of some in order to hear the voices of others. Free speech is not truly free for those who cannot be heard. While these conclusions may be accurate, it is doubtful that government can ensure "robustness" simply by counting heads and watching the clock. Regulating hate speech, pornography, and campaign finance is much more than "merely" a matter of parliamentary procedure. The author writes: Whereas the liberalism of the nineteenth century was defined by the claims of individual liberty and resulted in an unequivocal demand for limited government, the liberalism of today embraces the value of equality as well as liberty. . . . Regulations like the ones that so concern us today [hate speech, pornography, and campaign finance] have been considered by the courts in earlier times. Yet I believe an important difference can be found in the depth of the legal system’s commitment to equality today. Even in the 1960s, equality was but an aspiration, capable of moving the nation but still fighting to establish itself in the constitutional arena. Today, equality has another place altogether--it is one of the center beams of the legal order. It is architectonic. Some credit for this reshaping of the constitutional order derives from the landmark decision in Brown v. Board of Education (1954). This decision recognized that racism is a distinctive social harm and that the Fourteenth Amendment to the Constitution protects against such harms. But Professor Fiss acknowledges that the Constitution provides no guidance to a legal system that must choose between transcendent commitments--liberty and equality. The Constitution does not prefer the First Amendment to the Fourteenth, or the Fourteenth Amendment to the First.
NY Times Book Review
"In the tradition of communitarian free speech theorists...Fiss argues that the [First] amendment was intended 'to broaden the terms of public discussion,' rather than to protect individual self-expression...[He] powerfully reminds us..that the flowering of individual autonomy also has costs." -- Jeffrey Rosen
Kirkus Reviews
A slim volume offering large arguments for an activist government that protects and also promotes free speech.

The premise presented by Yale Law School professor Fiss is that the purpose of the First Amendment is "to broaden the terms of public discussion" so that citizens can make the informed decisions essential to a democracy's "collective self-determination." Fiss is concerned that, left on its own by the kind of laissez-faire government encouraged by numerous recent court decisions and legislative actions, much information and many viewpoints would be missing from a completely privatized marketplace of ideas, and America would suffer as a result. Opposition to government intervention comes from both the libertarian right and liberal left, but it is to the latter group that Fiss primarily addresses himself. Liberals, he writes, must reconcile their support for government activism to insure equality as demanded by the Fourteenth Amendment with their distrust of government on matters involving the First Amendment. The two constitutional guarantees overlap, he contends, because equality includes equal opportunities to be heard, and sometimes the only way such equality can be achieved is through state intervention: for instance, regulations that lower the volume of some voices and allocations that raise the volume of others. Fiss demonstrates how three specific issues—hate speech, pornography, and campaign finance—can be examined productively if it is assumed that the government has a positive, proactive responsibility derived from both the First and Fourteenth amendments to "promote free and open debate." Fiss argues brilliantly and concisely for "an improved sense of proportion." The state, he admits, "can do terrible things to undermine democracy," but it can do "some wonderful things to enhance it as well."

Arguing cogently for an enhanced "robustness of public debate," The Irony of Free Speech makes its own very robust contribution to that debate.

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Product Details

  • ISBN-13: 9780674466616
  • Publisher: Harvard University Press
  • Publication date: 1/13/1998
  • Edition description: Reprint
  • Edition number: 1
  • Pages: 112
  • Sales rank: 1,423,667
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.23 (d)

Meet the Author

Owen M. Fiss is Sterling Professor of Law, Yale Law School.
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Read an Excerpt



Chapter One


Freedom of speech is among our most cherished rights, yet it has always been a contested domain. For most of this century it has been the subject of countless judicial battles and has sharply divided the Supreme Court. Indeed, the Pentagon Papers case of the early 1970s was one of the most fractious episodes in all Supreme Court history, involving a dispute between the Attorney General of the United States and two highly respected newspapers, the New York Times and Washington Post, and it left the Justices at odds with one another. Freedom of speech has also been fiercely debated within political circles, on the campuses of the nation, and even around the dinner table—in contexts ranging from the 1921 trial of Sacco and Vanzetti to the anti-Communist crusade of the 1950s.

To some observers, the current controversies over freedom of speech may not seem especially noteworthy; they may even be a bit tiresome. The issues may have changed-instead of subversion and the alleged Communist menace, we now are preoccupied with such topics as hate speech and campaign finance—yet the divisions and passion they engender are all mo familiar. I believe,however, that.cuch a perspective on today's free speech controversies—seeing them as nothing more than a repetition of the past—is mistaken. Something much deeper and much more significantis occurring. Ws are being invited, indeed requnred, to re-examine the nature of the modern state andto see whether it has any roleinpreserving our most basic freedonms.

The debates of the past were premised on the view that the state was the natural enemy of freedom. Itwas the state that was trying to silence the individual speaker, and it was the state that had to be curbed. There is muchwisdom to this view, but it represents only a half truth. Surely, the state may be an oppressor, but it may also be a source nf freedom. By considering a wide variety of the free speech controversies now in the headlines—hate speech, pornography, campaign finance, public funding of the arts, and the effort to gain access to the mass media—I will try to explain why the traditional presumption against the state is misleading and how the state mightbecome the friend, rather than the enemy, of freedom.

This view—disquieting to some—rests on a number of premises. One is the impact that private aggregations of power have upon our freedom; sometimes the state is needed simply to counteract these forces. Even more fundamentaLy, this view is predicated on a theory of the First Amendment and its guarantee of free, speech that emphasizes social, rather than individualistic, values. The freedom the state may be called upon to foster is a public freedom. Although some view the First Amendment as a protection of the individual interest in selfexpression, a far more plausible theory, first formulated by Alexander Meiklejohn(1) and now embraced all along the political spectrum, from Robert Bork(2) to William Brennan,(3) views the First Amendment as a protection of popular sovereignty. The law's intention is to broaden the terms of public discussion as a way of enabling common citizens to become aware of the issues before them and of the arguments on all sides and thus to pursue their ends fully and freely. A distinction is thus drawn between a libertarian and a democratic theory of speech, and it is the latter that impels my inquiry into the ways the state may enhance our freedom.

The libertarian view—that the First Amendment is a protection of self-expression—makes its appeal to the individualistic ethos that so dominates our popular and political culture. Free speech is seen as analogous to religious Jiberty, which is also protected by the First Amendment. Yet this theory is unable to explain why the interests of speakers should take priority over the interests of those individuals who are discussed in the speech, or who must listen to the speech, when those two sets of interests conflict. Nor is it able to explain why the right of free speech should extend to the many institutions and organizations—CBS, NAACP, ACLU, First National Bank of Boston, Pacific Gas & Electric, Turner Broadcasting System, VFW—that are routinely protected under the First Amendment, despite the fact that they do not directly represent the individual interest in self-expression. Speech is valued so importantly in the Constitution, I maintain, not because it is a form of self-expression or self-actualization but rather because it is essential for collective self-determination. Democracy allows the people to choose the form of life they wish to live and presupposes that this choice is made against a background of public debate that is, to use the now famous formula of Justice Brennan, "uninhibited, robust, and wide-open."(4)

In some instances, instrumentalities of the state will try to stifle free and open debate, and the First Amendment is the tried-and-true mechanism that stops or prevents such abuses of state power. In other instances, however, the state may have to act to further the robustness of public debate in circumstances where powers outside the state are stifling speech. It may have to allocate public resources—hand out megaphones—to those whose voices would not otherwise be heard in the public square. It may even have to silence the voices of some in order to hear the voices of the others. Sometimes there is simply no other way. The burden of this book is to explore when such exercises of the state's power to allocate and regulate are necessary, and how they might be reconciled with, indeed supported by, the First Amendment.

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Table of Contents

Introduction

The Silencing Effect of Speech

Art and the Activist State

The Democratic Mission of the Press

The Challenge Ahead

Notes

Acknowledgments

Index

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