I Hear America Talking
By Suzanna Sherry
Sunday, September 8 1996
These three books all address some aspect of the current American culture wars: fundamental disagreements about politics and society, often fought with barrages of sound bites from both sides. All three books take a left-of-center approach, but the similarities end there. Only Democracy and Disagreement, by two well-known philosophers, makes a significant contribution to the debates currently plaguing us.
Comes the Millennium, by the pseudonymous "Jack Blake," is a lighthearted ramble through the religious right's favorite topics: evolution, art, sexuality, and secular humanism in the public schools. It is an unapologetic brief in favor of science and common sense and against religious fundamentalism. For those who agree with its basic thrust, it is well-written and easy to read. How can you not like a book that begins: "If you are a rational person, this book is for you. If you are not a rational person, then put this book back where you found it"? Unfortunately, after the wittiness wears off, the book doesn't add much to the debate over moral and religious issues. Blake's most profound suggestion is that people ought to talk more about serious issues, to engage in what he calls "big talk" instead of chatter. A worthy goal, perhaps, but if the conversation is conducted at the level of Comes the Millennium, it's not likely to convince anyone who isn't already persuaded.
The same problem of preaching only to the converted is exhibited, in a more erudite format, in The Irony of Free Speech. Written by Yale law professor Owen Fiss, the book is an attempt to defend various restrictions on free speech favored by some segments of the American left. Fiss elaborates what he calls a "democratic theory of speech," in which speech is important "not because it is a form of self-expression or self-actualization but rather because it is essential for collective self-determination." Thus, in evaluating such restrictions on speech as campaign spending limits, campus hate-speech codes, or limits on the public funding of unpopular art, we should ask whether the regulation is likely to foster or to inhibit full and open debate.
Fiss's analysis has problems from the very beginning. As Princeton philosopher Amy Gutmann and Harvard philosopher Dennis Thompson point out in their book -- which does not focus primarily on speech -- we value basic liberties, including freedom of speech, for reasons beyond their role in democratic deliberation. Fiss ignores this aspect of the First Amendment, leaving a serious gap in his arguments. He also relies on some very controversial premises. For example, he seems to accept unquestioningly the claim that certain kinds of speech "silence" the disadvantaged. Pornography and hate speech, he says, have this effect on women and people of color. In the face of such speech, either they cannot participate in public discussion at all, or, when they do speak, "their words lack authority; it is as though they said nothing." This silencing effect -- for which he presents no evidence -- is necessary to his argument. It recharacterizes the conflict presented by speech regulation, setting up an equivalence of values: Should we restrict the speech of pornographers or let them speak and consequently restrict the speech of women?
The lack of balance in The Irony of Free Speech is most apparent in its conclusions. Unsurprisingly, Fiss tentatively supports restrictions on both hate speech and pornography, although he admits that perhaps the traditional remedy of more speech might be a better way to combat the evils of racism and sexism. But the real zinger comes in his discussion of government funding of the arts. Although Fiss happily countenances arguments to restrict pornography and hate speech, he hints that funding Robert Mapplethorpe's work might be constitutionally required, because denying funding might "cut the public off from unorthodox ideas." That's because public funding, he suggests, is designed to expose the public "to diverse and conflicting viewpoints on issues of public importance." But Fiss wants only some unpopular viewpoints funded: racist art projects, for example, should not be funded because of their silencing effect. Fiss also suggests that art promulgating flat-earth theories need not be funded, although he does not explain how it is different from other "unorthodox" art.
There are plenty of good First Amendment arguments that would deny the government the right to use its financial power to censor Mapplethorpe's work, but not many of them can also be used in support of hate-speech regulation. That Fiss's theory simultaneously achieves both "progressive" aims should make us suspicious. Arts funding raises notoriously difficult questions, not susceptible to the pat answers provided in The Irony of Free Speech.
Democracy and Disagreement, by Gutmann and Thompson, has no such easy answers. Somewhat harder to read than the other two books, it is much more intellectually satisfying. Gutmann and Thompson confront the culture wars head on, asking how we can deliberate our way through our disagreements. Their answers are thoughtful, original and powerful.
This is a book that picks up where classic liberal theorists like John Stuart Mill and John Rawls leave off. Where Mill and Rawls deal in grand principles designed for perfect societies made up of perfectly rational citizens, Gutmann and Thompson take a more pragmatic approach. Recognizing that we may never agree on the most important moral questions, they try to provide a framework for discussing and resolving moral issues despite deep disagreements. Nevertheless, they insist that in resolving moral questions, we must engage in moral deliberation, not just self-interested bargaining. In this way they steer a middle course between those who appeal to universal principles and those who rely solely on self-interest. They aim for what they call "a justifiable resolution of disagreement" and suggest that actual outcomes cannot be specified in advance of actual deliberation by citizens.
What gives this book so much power is not just that it thoughtfully defines the principles that should guide moral argument. Gutmann and Thompson go on to apply their framework for moral discussion to some of the most difficult and controversial questions facing Americans today, including affirmative action, health-care rationing and abortion. Eschewing polemic in favor of balance and nuance, they try to establish common ground and reach delicate but stable resolutions. They do not always succeed, but they provide a stunning model of how to conduct serious moral discussion in the face of fundamental disagreement. Even where I found myself inclined to disagree with their ultimate conclusions, I had to concede the reasonableness of their arguments; that concession is a large first step toward the kind of moral deliberation the authors advocate.
Everyone who considers himself a responsible citizen should read Democracy and Disagreement. It's not as much fun as the other two books -- or as infuriating, if you happen to be on the other side of a particular issue -- but it actually might help us resolve our current moral crises.
Suzanna Sherry is the Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota. She is working on a book about postmodernism and the law.
© 1996 The Washington Post Co.
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