Go to Chapter One Section Go to Book World's Review

The Irony of Free Speech
By Owen M. Fiss

Chapter One: The Silencing Effect of Speech

Freedom of speech is among our most cherished rights, yet it has always been a contested domain. For most of this century it has been the subject of countless judicial battles and has sharply divided the Supreme Court. Indeed, the Pentagon Papers case of the early 1970s was one of the most fractious episodes in all Supreme Court history, involving a dispute between the Attorney General of the United States and two highly respected newspapers, the New York Times and Washington Post, and it left the Justices at odds with one another. Freedom of speech has also been fiercely debated within political circles, on the campuses of the nation, and even around the dinner table--in contexts ranging from the 1921 trial of Sacco and Vanzetti to the anti-Communist crusade of the 1950s.

To some observers, the current controversies over freedom of speech may not seem especially noteworthy; they may even be a bit tiresome. The issues may have changed-instead of subversion and the alleged Communist menace, we now are preoccupied with such topics as hate speech and campaign finance--yet the divisions and passion they engender are all mo familiar. I believe,however, that.cuch a perspective on today's free speech controversies--seeing them as nothing more than a repetition of the past--is mistaken. Something much deeper and much more significantis occurring. Ws are being invited, indeed requnred, to re-examine the nature of the modern state andto see whether it has any roleinpreserving our most basic freedonms.

The debates of the past were premised on the view that the state was the natural enemy of freedom. It was the state that was trying to silence the individual speaker, and it was the state that had to be curbed. There is muchwisdom to this view, but it represents only a half truth. Surely, the state may be an oppressor, but it may also be a source nf freedom. By considering a wide variety of the free speech controversies now in the headlines--hate speech, pornography, campaign finance, public funding of the arts, and the effort to gain access to the mass media--I will try to explain why the traditional presumption against the state is misleading and how the state mightbecome the friend, rather than the enemy, of freedom.

This view--disquieting to some--rests on a number of premises. One is the impact that private aggregations of power have upon our freedom; sometimes the state is needed simply to counteract these forces. Even more fundamentaLy, this view is predicated on a theory of the First Amendment and its guarantee of free, speech that emphasizes social, rather than individualistic, values. The freedom the state may be called upon to foster is a public freedom. Although some view the First Amendment as a protection of the individual interest in selfexpression, a far more plausible theory, first formulated by Alexander Meiklejohn and now embraced all along the political spectrum, from Robert Bork to William Brennan, views the First Amendment as a protection of popular sovereignty. The law's intention is to broaden the terms of public discussion as a way of enabling common citizens to become aware of the issues before them and of the arguments on all sides and thus to pursue their ends fully and freely. A distinction is thus drawn between a libertarian and a democratic theory of speech, and it is the latter that impels my inquiry into the ways the state may enhance our freedom.

The libertarian view--that the First Amendment is a protection of self-expression--makes its appeal to the individualistic ethos that so dominates our popular and political culture. Free speech is seen as analogous to religious Jiberty, which is also protected by the First Amendment. Yet this theory is unable 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. Nor is it able to explain why the right of free speech should extend to the many institutions and organizations--CBS, NAACP, ACLU, First National Bank of Boston, Pacific Gas & Electric, Turner Broadcasting System, VFW--that are routinely protected under the First Amendment, despite the fact that they do not directly represent the individual interest in self-expression. Speech is valued so importantly in the Constitution, I maintain, not because it is a form of self-expression or self-actualization but rather because it is essential for collective self-determination. Democracy allows the people to choose the form of life they wish to live and presupposes that this choice is made against a background of public debate that is, to use the now famous formula of Justice Brennan, "uninhibited, robust, and wide-open."

In some instances, instrumentalities of the state will try to stifle free and open debate, and the First Amendment is the tried-and-true mechanism that stops or prevents such abuses of state power. In other instances, however, the state may have to act to further the robustness of public debate in circumstances where powers outside the state are stifling speech. It 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 the others. Sometimes there is simply no other way. The burden of this book is to explore when such exercises of the state's power to allocate and regulate are necessary, and how they might be reconciled with, indeed supported by, the First Amendment.

© 1996 President and Fellows of Harvard College

St. Martin's

Back to the top