Review of "The Irony of Free Speech"

Owen M. Fiss is the Sterling Professor of Law at Yale Law School. His profile at Yale Law School’s Web page shows that he teaches several courses there. (see http://www.law.yale.edu/outside/html/faculty/omf2/profile.htm). This guy is teaching the future members of our legal elite, so we would be well advised to read this book to find out the kinds of ideas to which he’s exposing those poor kids.

Published in 1996, *The Irony of Free Speech* proposes a whole new way for the federal courts, especially the U. S. Supreme Court, to interpret the First Amendment’s clauses on free speech and free press. The relevant language is as follows: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” From these few words, the federal courts have constructed elaborate doctrines. Although the First Amendment applies to the U. S. Congress, the courts in their infinite wisdom have held that the same provisions apply to the state and local governments as well. A series of important precedents, especially from the Supreme Court, have established a broad degree of freedom for the media and for others who want to express themselves. Even during the current War on Terror, Americans have a degree of freedom of expression which is the envy even of other developed countries.

Fiss wants to change all that. He thinks that the federal courts have gotten the First Amendment all wrong, and that they need to change the whole underlying framework by which they analyze free-expression cases. According to current jurisprudence, free-expression cases involve a conflict between the government on the one hand and private persons or organizations on the other hand. In every case, the courts balance free expression against the need for the government to put limits on free expression. After weighing the interests on both sides, courts then decide whether free expression or government limits on expression ought to prevail in the particular case. In performing this balancing test, the courts usually give great weight to the right of free expression, permitting restrictions on that right only in rare and narrowly-defined cases.

Fiss suggests that this whole approach is wrong. In some free-expression cases, the conflict is not between private persons asserting the right to free speech versus government asserting the power to restrict speech. Sometimes, Fiss claims, it is the government itself which is on the side of free speech and private interests that are on the side of repression.

Here is how Fiss puts it: “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 liberty, which is also protected by the First Amendment” (p. 3). Apparently, Fiss sees freedom of religion as solely a form of self-expression, which is mistaken, but let’s not get into that right now. Fiss’s basic point is that, according to current American jurisprudence, freedom of expression is opposed to government power, and the two are always in conflict.

But what if freedom of expression is something which can be promoted and protected by the government, which Fiss says can often be the case. “Whereas the liberalism of the nineteenth century was defined by the claims of individual liberty and resulted in unequivocal demand for limited government, the liberalism of today embraces the value of equality as well as liberty” (p. 9). It’s gotten so that the need to regulate the private sector has come to be taken for granted, and the government is viewed as a benevolent protector of rights, not as a source of danger to civil liberties. One area in which this level of trust in the government does not apply is the area of free expression. Here, American jurisprudence still regards government regulation with skepticism and affirms a broad right of private institutions (newspapers, TV stations, etc.) to be free of government regulation. Fiss doesn’t like this situation one bit.

The position that liberty should prevail over equality “makes claim to the more classical conception of liberalism, and perhaps for that very reason has achieved a privileged position in current debates” over the First Amendment (p. 12). Too much free expression, in the libertarian sense, conflicts with equality because media corporations and other rich private interests use their freedom of expression to stifle public debate. Fiss suggests “that a truly democratic politics will not be achieved until conditions of equality have been fully satisfied.” Thanks to the power of the media, voters ignore important issues (as Fiss defines importance), thereby proving the need for government regulation in the name of enhancing debate and democracy.

Fiss discusses three situations in which he thinks government regulation can be justified under his criteria: “hate speech, pornography, and campaign finance.” Fiss says: “Perhaps the regulations [against these types of speech] . . . can be seen as themselves furthering, rather than limiting, freedom of speech.” (p. 15). Government authorities, says Fiss, “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 others” (p. 4). Again: “Sometimes we must lower the voices of some in order to hear the voices of others” (p. 18). Shut up, Fiss, by using your position of influence at a top law school you are silencing those who disagree with you.

Seriously, Fiss uses a scary kind of Orwellian logic-suppression of speech actually promotes free speech! Fiss acknowledges that this kind of thinking was invoked to justify putting Communists in prison during the Cold War, a result which Fiss deplores. The logic of imprisoning Communists for their speech was that, if the Communists were able to persuade enough people with their revolutionary rhetoric, a revolution could ensue, leading to “the overthrow of the government or even the establishment of a totalitarian dictatorship,” leading to total suppression of free expression. Fiss disagrees with this rationale for imprisoning Communists, because the threat of Communism was not “direct and immediate” enough (p. 16).

Hate speech, pornography and unregulated political campaigning pose greater dangers than Communism, says Fiss, and therefore these three things should be regulated even though Communism shouldn’t be. How could foreign-backed Communist agitators seeking the establishment of a Soviet-style dictatorship pose fewer dangers to the Republic than racial slurs, *Hustler* magazine and fundraisers at Buddhist temples? In the case of Communist propaganda, the liberal argument was that “the remedy was more speech, not state regulation.” Fiss says that this argument is inapplicable to porno, hate speech and unregulated campaigning, because “[t]he fear is that the speech will make it impossible for these disadvantaged groups [as he defines them] even to participate in the discussion. In this context, the classic remedy of more speech rings hollow. Those who are supposed to respond cannot” (p. 16).

So who are the “disadvantaged groups” who are prevented from “participat[ing] in the discussion?” It seems that Fiss has in mind non-white racial groups, women, and gays. More specifically, he’s thinking of left-wingers who belong to these groups. Apparently, Fiss thinks that the three types of speech he lists will have the effect of silencing these folks. Funny, I hadn’t noticed.

To reassure his readers, Fiss says that the government, when it regulates porno, hate speech and campaign abuses, is promoting “a worthy public end, as it does when it enacts gun control or speed limit laws” (p. 17). It’s significant that Fiss considers gun control laws to be an example of noncontroversial legislation.

Current American jurisprudence usually requires the government to observe the principle of “content neutrality,” that is, any regulation of speech must not discriminate among different types of speech based on the viewpoint of the speech. But, according to Fiss, “. . . the principle [of content neutrality] should not be extended to situations like hate speech, pornography, and political [campaign] expenditures, in which private parties are skewing debate and the state regulation promotes free and open debate. In those cases, the state may be disfavoring certain speakers-the cross-burner, the pornographer, or the big spender-and make judgments based on content, but arguable only to make certain that all sides are heard. The state is simply acting as a fair-minded parliamentarian, devoted to having all views presented” (p. 21).

“ [A] heavy burden of scrutinizing the state’s action should fall to the judiciary, especially because it stands apart from the political fray” (p. 24). Let’s get real here. First, the judiciary does not stand apart from the political fray. It ought to, but it doesn’t, as indicated by the Supreme Court’s decision in *Bush v. Gore.* One law professor criticized that decision as an attempt “to manage our political system” rather than a legitimate attempt “to interpret and apply the Constitution.” Come to think of it, the law professor who criticized the Supreme Court in these terms was Fiss himself (“The Supreme Court at the Bar of Politics,” by Owen Fiss, *The Hartford Courant,* December 14, 2000, Section A, p. 25, reprinted at http://www.law.yale.edu/outside/html/faculty/omf2/pdf_files/supremecourthebar.pdf). So Fiss ought to know better than to claim that the federal judiciary as an impartial arbiter immune from politics. Also, why does Fiss distinguish between “the state” and “the judiciary?” The judiciary is part of the state.

By urging the federal judiciary to abandon existing free-expression jurisprudence and to adopt a pro-government attitude toward regulation of speech and the media, Fiss is encouraging an unhealthy growth of state power. Not only would he resolve more disputes between the state and private speakers in favor of the state, he would actually deny, in many cases, the very existence of any tension between government authority and free speech. He claims that “[w]e should never forget the threat of the state for oppression, never,” but this rhetorical concession is nullified by his statement that “at the same time, we must contemplate the possibility that the state will use its considerable powers to promote goals that lie at the core of a democratic society-equality and perhaps free speech itself” (p. 26). In practice, Fiss is simply giving an additional rationale for government regulation of speech, as if it needed more excuses.

Much of the book is dedicated to a discussion of two issues which illustrate his thesis: The National Endowment for the Arts (NEA) and the so-called “Fairness Doctrine.” Starting with the NEA, a federally-funded program of assistance to artists, Fiss wastes little time dismissing the idea that the government shouldn’t be in the business of subsidizing speech. After all, couldn’t it be said that taxpayers have a right not to have their money spent to promote political views they disagree with or art that the find offensive or bad? No, says Fiss. Some things, like “public libraries and public education” (and presumably the NEA as well) must be funded. “In these cases, it is well understood that an abandonment of state funding would leave these activities, and thus our entire cultural and educational life, to the vicissitudes of the market or to the whims of those with enormous aggregations of wealth. . . . The more sensible approach is to start with public funding of cultural programs as an established fact of contemporary life and to use the First Amendment to protect against abuses of power in the administration of these programs” (p. 28).

I certainly can’t quarrel with Fiss on this point. We all know how successful the government-operated schools have been. As to public libraries, we can’t leave the book-rental business to the free market, because if we did then no books would be rented at all. Remember how the video-rental and DVD-rental business collapsed for lack of government involvement? The book-rental business would be just like that if it weren’t sponsored by the government.

So we may presume the legitimacy of the NEA and other government subsidies for speech. But this raises the problem that he who pays the piper calls the tune. What happens if the government demands that those whom it pays to produce art must conform to government standards? Fiss has in mind the controversy which arose when Senator Jesse Helms (R-NC) complained about offensive art being funded by the NEA. One of the artists who was targeted by Senator Helms was Robert Mapplethorpe, who had gotten an NEA grant for a series of explicit homoerotic photographs. Fiss doesn’t want to be on the same side as Jesse Helms.

According to Fiss, there is no First Amendment distinction between a criminal punishment for art the govt. doesn’t like and a denial of funding. Denying someone a federal grant to do art is supposedly the same as putting someone in prison because of that art. “Applicants denied that grant may well lack the resources needed to bring their art into being, and to that extent their expression will be frustrated in the same way that the expression of artists who receive the grant is furthered” (p. 35). However, Fiss acknowledges the need to select a limited number of grantees from a large number of applicants. The NEA has to select a handful of worthy grant recipients out of a large applicant pool.

Fiss accepts the constitutionality of the legislation which Congress passed in the wake of the Mapplethorpe controversy. This legislation prohibits NEA grants to art which a court has ruled to be obscene, while forbidding the NEA from making its own decisions about whether art is obscene. If the courts haven’t declared artwork to be obscene, the NEA must assume it isn’t obscene. Also, in selecting grant recipients from among multiple applicants, the NEA is required to consider the decency of the artwork, among other factors. Fiss thinks this is perfectly constitutional, so long as the NEA also takes into consideration the need to subsidize unorthodox and challenging art-Mapplethorpe’s pictures being an example of this category. p. Some government subsidy programs, like the NEA, are “favored” by the Constitution, allowing for a greater role of judicial review in case a worthy candidate doesn’t get funded (p. 48).

According to Fiss, it would have been unconstitutional to deny funding to Mapplethorpe’s art in 1989, because Mapplethorpe’s photos served an important purpose. Mapplethorpe’s work “challenged an orthodoxy; it brought into view the lives and practices of a marginalized group, revealing that group’s understanding of the erotic [bullwhips] and boldly confronting society with the consequences of its intolerance” (p. 39). The Mapplethorpe photographs presumably show the public that its intolerance leads to men putting whips in their rear ends.

The Constitution has evolved: “Today, and certainly after the movie *Philadelphia* [about an HIV-positive man who sues his former employer for discrimination], the plight of the gay community and the threat of AIDS are well known. But this was not so in 1989, making the case for funding the Mapplethorpe exhibition then all the more urgent....Today, Mapplethorpe’s work enjoys great economic success and presents a weak First Amendment case for funding. This may not have been the case at the time of the initial application for NEA funding and before the Helms attack.” So Fiss thinks the federal courts should have ruled in favor of federal subsidies for Mapplethorpe’s work back in 1989, but he would not necessarily support a federal court ruling to that effect today. He trusts the federal courts to have the wisdom and skill to make these distinctions, holding a subsidy to be constitutionally required in one year, but not a few years later.

The point is that the NEA has a constitutional duty to give federal funds to artists who are unorthodox and who challenge the complacency of the people. This principle has limits, however: “There are simply not enough funds to go to every unorthodox idea. The NEA administrator might give a plus to art that enhances the public’s understanding of homosexuality but not to Nazi art or art that promulgates flat-earth theories” (p. 43). In addition, the NEA should not subsidize speech, even unorthodox speech, that would have a “silencing effect.” Mapplethorpe stuff didn’t silence anyone, but “became a source of empowerment for the members of the gay community” (p. 45). What about people who think that public displays of this kind are indecent? Aren’t they being “silenced” under Fiss’s broad definition of the term? And what about the other piece of NEA artwork that got mentioned by Helms: The crucifix immersed in urine? Does Fiss think this silenced Christians (again, using his broad definition of what constitutes silencing)?

Fiss next deals with what is known as the Fairness Doctrine, a legal requirement which applied to radio and TV broadcasters before 1987. The Fairness Doctrine said that broadcasters had to present their viewers and listeners with differing viewpoints on controversial issues of public importance. Discussing one side of an issue was not enough-the perspectives of all sides had to be covered. The Fairness Doctrine left a large degree of discretion to broadcasters as to how they would cover different sides of different issues, but did not allow the airing of one perspective only (the Fairness Doctrine should not be confused with the Equal Time Rule-still in force-which requires broadcasters to give equal access to political candidates).

The Supreme Court upheld the Fairness Doctrine in its *Red Lion* decision in 1969. Fiss supports the *Red Lion* decision, even though he disagrees with the arguments which the Court used to justify its decision. The Court said that the federal government has to regulate broadcasting because there can only be a limited number of broadcasters due to the scarcity of space on the radio spectrum. Broadcasters effectively had something approaching a monopoly in their listening areas, according to the Court. Fiss recognizes the absurdity of these arguments, at least in the twenty-first century when there is a huge profusion of channels, e.g., cable. Fiss also points out that broadcasters do not dominate their market if, as we should, we consider the relevant market to consist of all sources of news, including “newspapers, radio, television, magazines, books, and even movies” (p. 53). The Supreme Court was unduly narrow in considering the broadcast market only.

Despite not sharing the Court’s rationale for its *Red Lion* decision, Fiss supports the result-that the Fairness Doctrine is constitutional under the First Amendment. Fiss deplores the Federal Communication Commission’s 1987 decision to rescind the Fairness Doctrine (the FCC was prompted by the courts, but Fiss does not mention this). Fiss also deplores President Ronald Reagan’s veto of legislation which would have reinstated the Fairness Doctrine after the FCC ditched it.

Even while mourning the end of the Fairness Doctrine, Fiss says that the destruction of that doctrine was the logical outcome of three Supreme Court decisions which came out after the *Red Lion* opinion. These three opinions supposedly were so favorable to the rights of the media as to “put an end to the effort to limit the autonomy of the press in the name of freedom.” This is a bad thing from Fiss’s point of view, since that’s the sort of regulation he advocates in this book.

*CBS v. DNC* (1973) said the federal government didn’t have to supplement the Fairness Doctrine with more stringent regulation. *Miami Herald Publishing Company v. Tornillo* said that newspapers usually couldn’t be forced to print replies to the criticism it ran of public officials. The *Pacific Gas & Electric* case said that a utility couldn’t be forced to use its billing envelopes to send customers propaganda published by a group opposed to the utility. These cases, especially the last one, are hostile to the idea that the government can force companies, including but not limited to media corporations, to carry messages they don’t agree with. This has bad implications for the Fairness Doctrine or other types of regulations forcing the media to cover issues the government deems to be important.

Thanks to these precedents, says Fiss, the *Red Lion* decision upholding the Fairness Doctrine is “a stray, living at the margins of the law, a formal vestige of another era, soon to be overtaken by technological advances that will shrink almost to nothing the practical significance of the domain it controls” (p. 70). Fiss thinks the logic of the *Pacific Gas and Electric* could end in subsidies for speech being struck down, not only the NEA but also the Corporation for Public Broadcasting, which gives money to public TV (pp. 77-78).

In other words, until the Supreme Court starts changing its jurisprudence, Fiss’s ideas of censoring the media in the name of promoting free expression will have to be put on hold. That’s fine with me. The last thing we need is more excuses for the government to regulate the media. If Fiss’s ideas became the accepted interpretation of the First Amendment, and if the government started suppressing speech in the name of promoting the free expression of marginalized groups, then the result would be, not a better life for the marginalized, but a government that has even more excuses than it has now to censor the people.

To see the bad consequences of Fiss’s ideas, look at one of his proposals, issued four years after this book came off the presses. In 2000, in the wake of the Lewinsky scandal, Fiss published an article urging that politicians have a “right to privacy” (“Do Public Officials Have a Right to Privacy?,” *Zur Autonomie des Individuums, Liber Amicorum Spiros Simits* (D. Simon and M. Weiss, eds., Nomos Verlagsgesellaschaft 2000), p. 91, reprinted at http://www.law.yale.edu/outside/html/faculty/omf2/pdf_files/publicofficialsprivacy.pdf). The media, according to Fiss, should be subject to penalties by the government if it (the media) publishes true information about politicians which, in the judgment of the government, bears only on the politicians’ “private” life. The media could not be relied on to police itself, said Fiss, because it was actuated by the profit motive. Publication of “private” information about politicians tended to distract the public from more important issues, and therefore such information should be suppressed in the name of promoting wholesome democratic debate. In other words, disclosing the marital infidelities of politicians, and the crimes they committed to cover up those infidelities, had the effect of drowning out debate on more important issues and therefore such revelations should not be permitted.

Suppressing free expression in the name of promoting free expression. Next we’ll hear that war is peace, that freedom is slavery, and that ignorance is strength.