Shut Up, He Explained

A Yale Law professor gets it all wrong about the First Amendment.

The Irony of Free Speech

By Owen M. Fiss

(Harvard University Press; 98 pages; $18.95)

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 19th-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 the19th-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 XPortfolio 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.