Would Fiss believe that free speech is really "free?"
Shut Up, He Explained
Owen Fiss is a professor at
the Yale Law School and a highly regarded scholar of constitutional law. The
subject of this short book is the present direction of the law governing the
freedom of speech. What Professor Fiss has to say about it is worth attending
to not merely because of his prominence in the field but because his argument
is planted in the common assumptive ground of a lot of contemporary academic
thought about the bankruptcy of individualism. The thesis of the book is Fiss',
but the wisdom is conventional.
Professor
Fiss thinks the present direction of First Amendment law is a bad one, and he
has an idea about how we might improve it. The short way to put his argument
(though it is not quite the way he puts it) is to say that our approach to
speech has become increasingly permissive. Courts have become more and more
reluctant to allow the state to interfere with the rights of individual
speakers to say what they wish, and it is time to roll back that permissiveness
and to embark on a new approach that would permit the state to silence some
speakers and promote others, but still, Fiss argues, in the name of freedom of
speech.
This is what Fiss means by the "irony" in his title: that
true freedom of speech for all requires suppressing the speech of some. This is
not, technically, an irony. It is a paradox. An irony would be the observation
that an attempt to increase freedom for all often entails, despite our best
efforts, a decrease in freedom for a few. If Fiss had addressed the subject of
free speech in this spirit, as an irony, he would undoubtedly have had some
interesting things to say, for he is a learned and temperate writer. But he
has, instead, chosen to address the issue as an advocate for specific groups he
regards as politically disadvantaged--women, gays, victims of racial-hate
speech, the poor (or, at least, the not-rich), and people who are critical of
market capitalism--and to design a constitutional theory that will enable those
groups to enlist the state in efforts either to suppress speech they dislike or
to subsidize speech they do like, without running afoul of the First Amendment.
Embarked on this task, the most learned and temperate writer in the world would
have a hard time avoiding tendentiousness. Fiss does not avoid it.
The
Irony of Free Speech is a discussion of several speech issues:
campaign-finance laws, state funding for the arts, pornography, speech codes,
and equal time. These discussions are not doctrinaire, but their general
inclination is to favor state intervention, on political grounds, in each of
those areas--that is, to favor restrictions on campaign spending, greater
regulation of pornography, and so on. Fiss' analyses of specific cases are
presented against a lightly sketched historical argument. Light though the
sketching is, the historical argument is almost the most objectionable thing
about the book, since it involves a distortion of the history of First
Amendment law that is fairly plain even to someone who is not a professor at
Yale Law School.
The argument is that "the liberalism of the
nineteenth century was defined by the claims of individual liberty and resulted
in an unequivocal demand for liberal government, [while] the liberalism of
today embraces the value of equality as well as liberty." The constitutional
law of free speech, says Fiss, was shaped by the earlier type of liberalism--he
calls it "libertarian"--which regarded free speech as a right of individual
self-expression; it is now used to foil efforts to regulate speech in the name
of the newer liberal value, equality. Contemporary liberals, inheriting both
these traditions, find themselves in a bind. They want, let's say, black
students to be free from harassment at institutions where they are, racially,
in a minority, since liberals worry that black students cannot be "equal" if
they feel intimidated. But those same liberals get upset at the thought of
outlawing hate speech, since that would mean infringing upon the right of
individuals to express themselves.
Fiss'
suggestion--this is the chief theoretical proposal of his book--is that
liberals should stop thinking about this as a conflict between liberty and
equality and start thinking about it as a conflict between two kinds of
liberty: social vs. individual. The First Amendment, he says, was intended to
foster (in William Brennan's words) "uninhibited, robust, and wide-open" debate
in society as a whole; speech that inhibits or monopolizes that debate should
therefore fall outside the protection of the law. We can maximize the total
freedom of speech by silencing people who prevent others from speaking--when
they utter racial epithets, represent women in degrading ways, use their wealth
to dominate the press and the political process, or block the funding of
unorthodox art.
The historical part of this analysis rests on a canard,
which is the assertion that the constitutional law of free speech emerged from
19 th -century classical laissez-faire liberalism. It did not. It
emerged at the time of World War I, and the principal figures in its
creation--Learned Hand, Oliver Wendell Holmes Jr., and Louis Brandeis--were not
classical liberals; they were progressives. They abhorred the doctrine of
natural rights because, in their time, that doctrine was construed to cover not
the right to "self-expression" but the "right to property." Turn-of-the-century
courts did not display a libertarian attitude toward civil rights; they
displayed a libertarian attitude toward economic rights, tending to throw out
legislation aimed at regulating industry and protecting workers on the grounds
that people had a constitutional right to enter into contracts and to use their
own property as they saw fit. Holmes, Brandeis, and their disciples
consistently supported state intervention in economic affairs--the passage of
health and safety regulations, the protection of unions, the imposition of
taxes, and so on. The post-New Deal liberals whom Fiss associates with the
value of equality are their heirs. The heirs of the19 th -century
classical liberals are Jack Kemp and Newt Gingrich. Fiss' two "liberalisms"
are, in fact, almost entirely different political philosophies.
Hand,
Holmes, and Brandeis based their First Amendment opinions not on some putative
right to individual self-expression (an idea Holmes referred to as "the right
of the donkey to drool") but on a democratic need for full and open political
debate. First Amendment law since their time has performed its balancing acts
on precisely that social value--the very value Fiss now proposes we need to
insert into First Amendment jurisprudence. We don't need to insert it, because
it was there from the start.
Why does Fiss portray the history of First
Amendment jurisprudence in this perverted way? Because he wants to line up his
own free-speech argument within the conventional academic view that our
problems are mostly the consequences of an antiquated and discreditable
ideology of liberal individualism, and that they can mostly be solved by
adopting a social-constructionist, or communitarian, or "intersubjective" view
of human nature instead. The merits of liberal individualism vs.
communitarianism can await another occasion to be debated. For since the law
governing the freedom of speech does not emerge out of libertarianism, the
matter does not boil down to replacing an obsolete belief in "self-expression"
with a more up-to-date belief in "robust debate," as Fiss would like to think
it does. What it boils down to is whether we need to replace the
Hand-Holmes-Brandeis way of maximizing the benefits of free speech in a
democratic society, which tries to push the state as far out of the picture as
possible, with a different way, which tries to get the state farther into the
picture.
Here,
assuming we want to try the interventionist approach, it is hard to see how a
one-size theory can possibly fit all cases. The issues underlying pornography,
hate speech, arts grants, campaign finance, and equal-time provisions are all
different. The ideological impetus behind judicial developments in the last two
areas, campaign finance and equal-time provisions, is related less to speech,
except as a kind of constitutional cover, than to a revival of the old "right
to property"--that is, the Supreme Court tends to disapprove of legislative and
administrative efforts to require broadcasters to carry "opposing viewpoints"
on the grounds that since it's their property, owners of television stations
should be able to broadcast what they like. Fiss believes that the need for
equal-time laws is as urgent today as it was in the 1970s, which is peculiar in
light of the proliferation of media outlets. But the state does arguably have
an interest, compatible with the First Amendment, in stipulating the way those
media are used, and Fiss' discussion of those issues is the least aggravating
in his book.
Still, that discussion, like his discussions of the other
issues, rests on a claim long associated with the left--the claim, in a phrase,
that the minority is really the majority. In the case of speech, Fiss appears
to believe that the reason the American public is less enlightened than he
would wish it to be concerning matters such as feminism, the rights of
homosexuals, and regulation of industry is that people are denied access to the
opinions and information that would enlighten them. The public is denied this
access because the state, in thrall to the ideology of individualism, refuses
either to interfere with speech bullies--such as pornographers--who "silence"
women, or to subsidize the speech of the unorthodox, such as Robert
Mapplethorpe.
Fiss'
analysis of the Mapplethorpe case offers a good example of the perils of his
interventionist approach. Arts policy is, unquestionably, a mess. The solution
usually proposed is divorce: Either get the state out of the business
altogether or invent some ironclad process for distributing the money using
strictly artistic criteria. Fiss rejects both solutions; he wants the
criteria to be political. He thinks the NEA should subsidize art that will
enhance the "robustness" of the debate and should therefore prefer unorthodox
art--though only, of course, if it represents a viewpoint the endowment
considers, by virtue of social need and a prior history of exclusion, worthy of
its megaphone. (No Nazi art, in other words.)
Mapplethorpe's photographs seem to Fiss to
qualify under these guidelines, since, he says, "in the late 1980s the AIDS
crisis confronted America in the starkest fashion and provoked urgent questions
regarding the scope and direction of publicly funded medical research. To
address those issues the public--represented by the casual museum
visitor--needed an understanding of the lives and practices of the gay
community, so long hidden from view." This seems completely wrongheaded. People
(for the most part) didn't find Mapplethorpe's X
Portfolio
photographs objectionable because they depicted homosexuality. They found them
objectionable because they depicted sadomasochism. The notion that it was what
Fiss calls a "source of empowerment for the members of the gay community" to
have homosexuality associated with snarling guys prancing around in leather
jockstraps, using bullwhips as sex toys, and pissing in each other's mouths, at
a time when AIDS had become a national health problem and the issue of gays in
the military was about to arise, is ludicrous. Any NEA chairperson who had the
interests of the gay community at heart would have rushed to defund the
exhibit. Jesse Helms could not have demonized homosexuality more
effectively--which, of course, is why he was pleased to draw public attention
to the pictures. Now that is what we call an irony of free speech.
Awarding funding to the work
of a gay artist because gay Americans need more political clout is an
effort at cultural engineering, and the problem with cultural engineering is
the problem with social engineering raised to a higher power. We have a hard
enough time calculating the effects of the redistribution of wealth in our
society. How can we possibly calculate the effects of redistributing the right
to speak--of taking it away from people Professor Fiss feels have spoken long
enough and mandating it for people he feels have not been adequately heard? One
thing that is plain from the brief unhappy history of campus speech codes is
that you automatically raise the value of the speech you punish and depress the
value of the speech you sponsor. There are indeed many ironies here. Maybe
someone will write a book about them.
No, because he believes free speech is an outdated concept. Yes, but he does propose minor critiques towards the concept of free speech. No, because Fiss believes free speech is not granted equally to everyone. Yes, because he has not advocated strongly against issues with free speech.