THE IRONY OF FREE SPEECH by Owen Fiss. Cambridge: Harvard University Press, 1996. 90 pp. Cloth $18.95.
Reviewed by Richard A. Glenn, Department of Political Science, Millersville
University, Pennsylvania.
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: