Review: The Irony of Free Speech by Owen M. Fiss

A short read on the important topic of free speech. This little book written in 1996 argues in favor of state regulation of hate speech, pornography, and campaign money, kinds of speech that have been protected by the constitution under the 1st amendment (Buckley v. Valeo resisting mandatory limitations on political expenditures, R.A.V v. St. Paul striking down hate a speech ordinance because it was not content neutral, and Miller v. California which regulates obscenity). The gist of the argument is that some kinds of speech undermine speech itself, by limiting the ability of certain people to communicate and participate in society. By allowing the state to intervene, we would help level the playing field and provide for all views to be heard, something that would strengthen rather than weaken democracy.

The author also traces the development of 1st amendment jurisprudence from the Warren court to the Rehnquist court, noting the deep turn toward a more libertarian understanding of this amendment. His main concern is the risk that a major democratic institution such as the press would be left off to the forces of the market if not regulated by the government to insure diversity of opinion. He analyzes the development of the doctrine of Fairness as first established by the Red Lion case (1969, Warren court), and which allowed the state and the FCC to regulate broadcasters. But as the Warren court retired and was replaced by a more conservative one, this doctrine was undermined by subsequent cases such as CBS v. DNC (which held that “Neither the Communications Act nor the First Amendment requires broadcasters to accept paid editorial advertisements”, 1973), Miami herald case ( holding the Florida’s right-to-reply statute unconstitutional, 1974), and the Pacific Gas Electric v. Public commission utility (forcing PG&E to include in its newsletter information against its interest violates the 1st amendment, 1986). The author argues that the 2 views of states, one regulative, and the other allocative, should not have the same scrutiny under free speech law, that the state ought to have more leeway in regulating speech for the purpose of diversifying views, and that under a strictly off hand libertarian view of the 1st amendment, “free press will have become reduced to free enterprise, and the fate of our democracy will be placed wholly in the hands of the market”.

Another chapter is dedicated to the allocative aspect of the state, taking as a template the NAE (National Endowment of the Art) and its funding for Art programs. The Author describes the outcry after the Mapplethorpe exhibit of 1989, deemed obscene by senator Jesse Helmes of North Carolina whose crusades against this exhibit let to several amendments to limit federal funding of the arts. An insightful discussion ensues around the Miller test established by Miller v. California (which held that “A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value”, 1973) and the legal value of the new tests of “decency” and “artistic merit” that the new federal amendments statute created. Fiss instead provides 4 factors that NAE should follow when evaluating works of art to minimize silencing speech: 1) evaluate the relative degree of exclusion of the work 2) The financial needs of the creator 3) the relevance of the topic on the public agenda and 4) the overall silencing potential of not publishing the work. The author believes in the mission of the NAE, which is to “free art from strict dependence on the market or privately controlled wealth and thus makes an important contribution to furthering the value that underlies the 1st amendment: our rights and duty to govern ourselves effectively and deliberately”. He contrasted this goal with the ruling in Rust v Sullivan (1991), which allowed a state rule to prohibit federally funded clinics employees from discussing abortions options with their patients. Overall this is a very insightful book worth reading slowly and a few times over to better grasp the underlying legal concepts.


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