A slim volume offering large arguments for an activist government
that protects and also promotes free speech. The premise presented
by Yale Law School professor Fiss is that the purpose of the First
Amendment is "to broaden the terms of public discussion" so that
citizens can make the informed decisions essential to a democracy's
"collective self-determination." Fiss is concerned that, left on
its own by the kind of laissez-faire government encouraged by
numerous recent court decisions and legislative actions, much
information and many viewpoints would be missing from a completely
privatized marketplace of ideas, and America would suffer as a
result. Opposition to government intervention comes from both the
libertarian right and liberal left, but it is to the latter group
that Fiss primarily addresses himself. Liberals, he writes, must
reconcile their support for government activism to insure equality
as demanded by the Fourteenth Amendment with their distrust of
government on matters involving the First Amendment. The two
constitutional guarantees overlap, he contends, because equality
includes equal opportunities to be heard, and sometimes the only
way such equality can be achieved is through state intervention:
for instance, regulations that lower the volume of some voices and
allocations that raise the volume of others. Fiss demonstrates how
three specific issues - hate speech, pornography, and campaign
finance - can be examined productively if it is assumed that the
government has a positive, proactive responsibility derived from
both the First and Fourteenth amendments to "promote free and open
debate." Fiss argues brilliantly and concisely for "an improved
sense of proportion." The state, he admits, "can do terrible things
to undermine democracy," but it can do "some wonderful things to
enhance it as well." Arguing cogently for an enhanced "robustness
of public debate," The Irony of Free Speech makes its own very
robust contribution to that debate. (Kirkus Reviews)
How free is the speech of someone who can't be heard? Not very--and
this, Owen Fiss suggests, is where the First Amendment comes in. In
this book, a marvel of conciseness and eloquence, Fiss reframes the
debate over free speech to reflect the First Amendment's role in
ensuring public debate that is, in Justice William Brennan's words,
truly "uninhibited, robust, and wide-open." Hate speech,
pornography, campaign spending, funding for the arts: the heated,
often overheated, struggle over these issues generally pits
liberty, as embodied in the First Amendment, against equality, as
in the Fourteenth. Fiss presents a democratic view of the First
Amendment that transcends this opposition. If equal participation
is a precondition of free and open public debate, then the First
Amendment encompasses the values of both equality and liberty. By
examining the silencing effects of speech--its power to overwhelm
and intimidate the underfunded, underrepresented, or disadvantaged
voice--Fiss shows how restrictions on political expenditures, hate
speech, and pornography can be defended in terms of the First
Amendment, not despite it. Similarly, when the state requires the
media to air voices of opposition, or funds art that presents
controversial or challenging points of view, it is doing its
constitutional part to protect democratic self-rule from the
aggregations of private power that threaten it. Where most liberal
accounts cast the state as the enemy of freedom and the First
Amendment as a restraint, this one reminds us that the state can
also be the friend of freedom, protecting and fostering speech that
might otherwise die unheard, depriving our democracy of the full
range and richness of its expression.
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