Jon
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"The Irony of Free Speech" - 09/19/2006 11:02 pm
Exceprts from the blurb for of Owen Fiss' book The Irony of Free Speech:
How free is the speech of somebody who can't be heard? Not very -- and this, Owen Fiss suggests, is where the First Amendment comes in. In this book ... 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."
By examining the silencing effects of speech -- its power to overwhelm and intimidate the underfunded, underrepresentned, or disadvantaged voice -- Fiss sows how restrictions on hate speech can be defended in terms of the First Amendment, not despite it.
The introduction and first chapter of the book are particularly relevant to the discussions and recent events on free-association. There's a quick summary of First Amendment law that looks at the rationale for limiting certain kinds of speech ("fighting words", "clear and present danger") and highlights that the First Amendment's prohibition of laws abridging "the freedom of speech" implies "an organized and structured understanding of freedom, one that recognizes certain limits as to what should be included and excluded".
There are two contrasting views about the importance of, and justification for high levels of protection for, free speech:
- the "libertarian" view sees free speech as a protection of individual self-expression (currently best examplified by Rehnquist)
- the "democratic" view that it is a protection of popular sovereignity by providing the basis for collective self-determination
Fiss aligns solidly with the "democratic" view, which he describes as "endorsed all along the political spectrum, from Bork to Brennan")
Regulation of hate speech based of the theory it denigrates the value and worth of its victims and the groups to which they belong appears to be based in an equality interest (arising from the Fourteenth Amendment) that is apparently in tension with liberty interests of free speech. (He also discusses pornography, campaign finance, and government funding or the arts; in the interests of relevance and simplicity, I'll concentrate on the hate speech aspects.) Fiss, however, proposes a different view of the effect of hate speech as providing a direct and immediate threat to freedom by make it impossible for the disadavantaged groups to even participate in the discussion:
In this context, the classic remedy of more speech rings hollow. Those who are supposed to respond cannot.... Even when these victims speak, their words lack authority; it is as though they said nothing.
An extremely important point here is that while the state is a major threat to free speech, it is not the only one -- and also has the responsibility to foster free speech, and specifcally to ensure that that "the speech of the powerful not drown out or impair the speech of the less powerful."
This is particularly important when it comes to discussions related to collective self-governance. In these cases, the state needs to function as a parliamentarian, to ensure that all groups have a full and equal opportunity to participate in public debate.
Of course, this doesn't make problems go away; the state is an important potential threat to free speech, and as was pointed out in another thread regulations can be abused to silence dissent, there are different perspectives on just who are the powerful and less powerful, and there are still hard decisions. Still, I think as well as highlighting some of the differences in underlying philosophies here, it does provide an important framework for looking at everybody's free speech interests. More about the relation to civil discourse and free-association-specific topics in the reply ...
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