The Irony of Free Speech, Part I

GUEST: Owen Fiss
VTR: 10/2/96

I’m Richard Heffner, hour host on The Open Mind. Long ago the poet John Milton argued, “Whoever knew truth put to the worse in a free and open encounter?” And the faith of a free society, of course, is that the truth cannot be bested or denied in free and open encounters. But when such do not actually exist, and one searches for them vainly today, can government not then legitimately intervene in matters of speech?

Well, my guest today believes so, writes that “The state might become the friend rather than the enemy of freedom.” Nor does he stand totally alone, to be sure. Some think his is literally the faith of our founders. But in his new book, The Irony of Free Speech, Owen M. Fiss, Sterling Professor at the Yale Law School, is provocative and innovative in inviting us, as he writes, to examine, re-examine the nature of the modern state to see if it has any role in preserving our most basic freedoms.

So let me then ask Professor Fiss precisely what he means by his book’s title, The Irony of Free Speech.

FISS: I think most people, when they think of free speech, view the state as the primary threat to free speech. By The Irony of Free Speech, I mean that we have to reflect on free speech more deeply, and that we have to understand that the state may have a role to play both as a friend of speech as well as an enemy, and that what we tend to think in rather simplistic terms that free speech means no state action, that there are many situations in which we could understand how the state has a vital role to play in enhancing our freedom.

HEFFNER: But you say “simplistic terms.” And yet we know that we then have to take that charge – and it is a charge when someone thinks in simplistic terms – and aim it at our highest court and at some of our most distinguished attorneys and lawyers and scholars of the law. How do you explain that?

FISS: Well, I think this more complicated understanding of freedom, an understanding of freedom in which the state has a positive role to play, was the understanding of freedom that dominated the Supreme Court in the period, say, the 1960s. I would say that, starting at about the early ’70’s, 1974 to 1996 to the present moment, I think the court has refused to see the complicated nature of freedom over the dissents of people like Brennan, like Marshall, and people like Justice White during his 20-year period have always insisted upon this, what I call the more simplistic, uncomplicated view of freedom.

But there was a period of American history during the years of the Warren court where the court understood that there were two sides to freedom and tried to create a body of doctrine which permitted the state to come in and to enhance the freedom. And it was very natural, because remember the ’60’s begins with the Civil Rights Movement. And in one of the lessons of the Civil Rights Movement of the early ’60’s, and there it was for equality, not freedom, was how the state could play a positive role in protecting liberties or the values of the Constitution, such as the value of equality. I mean, the state was an affirmative force in the early ’60’s trying to disestablish the caste system that we found ourselves in at that period.

HEFFNER: Well, you talk about a positive approach to our Constitution, to our laws, to free speech. Has that approach, you say traditionally before the ’70’s, let’s say, that traditionally that was an approach that had support in the Supreme Court. But don’t we have to go back somewhat further than that and find that there has been in our increasingly marketplace-dominated society the notion that free speech is indeed, as you suggest it should not be considered, a matter of keeping government away rather than a matter of keeping other forces? Is it really a matter of a reversal that occurs in the ’70’s? Can you not find that point of view maintained long before?

FISS: I would insist not. I mean, I think we have to have some historical perspective on our romance with the market and our attack upon the government. I don’t think that has been a single, uninterrupted theme of American history. I would say for the period of my adult life, starting in the ’50’s and going through the ’60’s, I don’t understand that period of time as a kind of romance with the market. I think our fatuation with the market, with the attack upon big government, with the plea for deregulation, with the plea for privatization, really begins in the ’70’s for reasons that are very complex and reaches something of a zenith during the presidency of Ronald Reagan. And I think it’s that conception of our social life where the market is the all-dominating institution where the state is supposed to be the enemy of everything good, that’s really an understanding that comes into being in the early ’70’s and dominates our political and social life for the next 25 years. But I would say in the ’50’s and the ’60’s, I don’t think it was that.

HEFFNER: Certainly not in the ’30’s and ’40’s when I grew up …

FISS: No, absolutely. Right.

HEFFNER: … thinking of the state in positive terms.

FISS: Of course. Think back on Roosevelt’s Four Freedoms. I mean, Roosevelt’s Four Freedoms was a conception of freedom that contemplated a very positive role of the state. There’s no way that you can get freedom from hunger, freedom from poverty, freedom from some fears, without the state playing an important role. I think we’re standing in 1996 today, after a 25-year period of a great ascendancy of the market and an almost unbroken assault upon the state, but that isn’t all of American history.

HEFFNER: Now, you say, “For rather complicated reasons in the early ’70’s,” there was this surfacing of that mantra of “deregulation, deregulation, deregulation.” What are those complicated reasons? Why did we move from what you describe as a more beneficent view, or benevolent view of what the state can do, to this horror that we express today at the thought of government intervention?

FISS: I don’t know the answer to that question. Let me just offer some modest speculations. One had to do with the experience of the Vietnam War. I think the Vietnam War was a very traumatic experience in American politics. I think there was a feeling of disenchantment with government, not simply because of the horror of conducting the war, but the horror of misleading the American people. I think the publication of the Pentagon Papers in the early ’70’s was a tremendously powerful event in the understanding of many Americans that when you came to look at what was behind the government’s decisions there was relatively little.

I do think that, connected to that but to some degree independent of that, I think the abuses of government power that were revealed in the impeachment proceedings surrounding Richard Nixon also began to sour people on the impossibility of having a government that you could trust.

I would also say that the ’70’s were begun with the concern, a very deep concern about the economic well-being of America. I think it was in part triggered by the oil shocks, but also by the creeping inflation that began during that period or even earlier and that escalated there. And I think once we began worrying about our economic well-being as a nation, I think the market as an institution that is supposed to promote the efficient allocation of resources became a more and more plausible institution. I think during, you have to realize that during the ’70’s we were not besieged with these questions of economic scarcity. The ’60’s was a period in which we wrote about the Age of Affluence. We thought we could have all our ideals and live materially well. And I think during the early ’70’s that kind of faith in our affluence and the pressure of economic necessity began to bring into the fore the power of the market and the contributions the market could make to our social life, which had been slighted, ignored to some extent during the ’60’s.

I mean, the amazing thing about the early ’70’s is that theoreticians of the market, of classical, orthodox capitalism come into the fore on the center stage where during the ’60’s they were all slighted.

So I would say between the war, the abuses of presidential power that we saw in the Nixon administration, and the imperatives of economic scarcity, I think we begin to take a different view of the state. And I would say this is a view that is, even during the Carter years, is … Remember Carter also spoke quite emphatically about the evils of big government and the importance of deregulation. This has been a dominant theme of our politics for the last 25 years. I would say it’s the organizing theme of our politics.

HEFFNER: Of course, after the Second World War there were those like Adlai Stevenson in Illinois and Earl Warren in California who did talk about the devolution of political power and of government power, did look to the states to take over rather than the federal government, so that it’s not totally …

FISS: No. No, no. It’s not totally. And I think people, even during the ’50’s with McCarthyism, became very skeptical of government power. But I still think that the one thing that has to be factored in is Brown v. the Board of Education, and the Civil Rights Movement. I mean, that is the defining event of the ’60’s. And that was an event that depended upon the use of government power. The court is an agency of the state. The Department of Justice, which was absolutely crucial for the campaigns against the eradication of the caste structure, is an agency of the state.

Now, it is true that the court, the Department of Justice, did not do it alone, and were crucially dependent upon the Civil Rights Movement and Dr. King, were crucially dependent upon agencies like the NAACP Legal Defense Fund. But it was understood that if we’re going to begin to realize the promises of our Constitution, that we had to, in certain circumstances, call upon the state.

HEFFNER: Do I understand then that what you’re saying, in a sense, from the one side, the right perhaps, you had a reaction against governmental involvement in terms of the enforcement of Brown v. Board of Education, and on the other hand you had, from the left, a reaction against government that stemmed from Vietnam and from the excesses of the Nixon administration that led to his resignation? And that, put together, you had a soil that was ready to receive that seed of deregulation, deregulation, deregulation?

FISS: I think you put it very well. If I could just add one thing. And what I tried to do in this book, although the domain is free speech, is to recover the possibilities that there is a middle g round which we, in fact, lived through during the ’60’s, and I think rendered that period one of the great moments of American history.

HEFFNER: What do you mean, “middle ground?” Isn’t this a matter of either seeing government as always potentially a friend, or not? What middle ground can you strike?

FISS: Well, let’s talk about the press, this other chapter in the book …

HEFFNER: Right.

FISS: … that deals with the press. I am a very, very strong believer in the importance of New York Times v. Sullivan as an important contribution to our freedom. That’s a case that was decided in 1964. In New York Times v. Sullivan, the Supreme Court said that the press has to be given some breathing room, and when it reports upon public figures that it could not be held accountable in a defamation suit unless the public figure proves actual malice, that the report was known to be untrue, or that there was reckless disregard as the truth. And New York Times v Sullivan creates a kind of space, an autonomy around the press. It gives the press a kind of freedom to be more vigorous, robust, spirited in its reporting of issues of public affairs.

HEFFNER: Some would add to that, vicious and unfair too.

FISS: Yes, yes, yes. But let’s put that to one side. I too think that with any freedom there are excesses, and a press that is robust and aggressive could degenerate into viciousness also. I would agree. I don’t think the viciousness of the press has much to do with this privilege that New York Times v. Sullivan created.

But just let me continue my thought. So I think that that is an important part of our legacy of freedom. I also think that another part of our legacy of freedom is a case called Red Lion, in which the Supreme Court in 1969 upheld the Fairness Doctrine of the FCC on the theory that it is appropriate for a state agency – here we’re talking about the FCC – to regulate what is broadcast on the air in the name of enhancing the information that is available to the public so that the public could discharge its democratic responsibility. And I would see what I call the middle ground is a ground defined by taking both of these parts of our Supreme Court doctrine seriously, taking New York Times v. Sullivan seriously, and simultaneously taking this Red Lion case seriously. And that’s what I would concede to be a middle ground. And I think it’s possible. I don’t think we have to have a conception of press autonomy which precludes a kind of Fairness Doctrine. Because the autonomy that we want to give to the press – and I believe in the autonomy to give to the press – is an autonomy where the press should be in a position to discharge its democratic responsibilities. And its democratic responsibilities is a responsibility to inform the citizens of the matter of public importance.

HEFFNER: But how can that come to pass? You’re asking for measure, balance, reasonableness that is more than just sweet reasonableness. How can that come to pass until you resolve, as you state the problem, of the theory of democracy and the theory of freedom when you have not yet chosen between freedom as an individual right and freedom developing out of a concern for my individual right to speak as I please, speak enlarged, and the notion that the doctrine of free speech is designed really to foster the well-being of the community and to foster democratic choices? How can you reconcile those? Don’t you have to find a primacy either for the individual or for the community? And don’t you, yourself, make a choice?

FISS: Yes, I make a choice. I make a choice. But the choice is not an abstract, moral choice. The choice is in the context of giving a theory to explain why the First Amendment has a role in our Constitution. The First Amendment is not a moral command handed down by Kant. It’s part of a charter that is established to govern this nation. I do not view the First Amendment as a kind of celebration of individualism; but rather as a structure to help protect our democracy.

HEFFNER: Isn’t it the former? Hasn’t that been the interpretation that has prevailed in these last 20 years, as you describe them?

FISS: In the last 20 years it’s prevailed. I think it’s misguided. And the attempt of this book is to recover a vision, what I call the democratic theory of the First Amendment. I think it’s prevailed, but it’s never been adequately rationalized and never justified. I think if you look at the role of the First Amendment in the constitutional structure and its part of a system of governance, I think it’s a much more appealing understanding of why you would give the primacy to the First Amendment if you embrace the democratic theory.

For example, take the individualistic perspective, which I, in tort you have some sort of appeal for. Why should the individual’s desire o speak take a primacy over another individual who may be harmed by the speech, or a listener who may be offended by the speech? I want to speak. I feel very intensely about speaking. But when I speak it hurts you, it hurts other people. What is the principle or the theory that would say that my desire, my intense desire to speak should have a primacy over your interests which are affected adversely by it? I don’t think you can give an answer to that unless you begin to talk about the needs of society that there is a need on the part of society to have speech out in the open so society can begin to exercise its democratic privileges. I think it’s very difficult to articulate a theory that would give primacy to speech in our Constitution without making reference to what I referred to as “The needs of democracy.”

Now, to be sure that any theory of democracy needs room for individuals to vigorously, aggressively assert their viewpoints. I mean, you can’t have a democracy without a robust individualism. But we have to understand that the robust individualism which the First Amendment may give life to is a robust individualism which is in the service of democratic values and always is limited by that.

HEFFNER: You know, I sit here thinking no one has ever paid me as high a compliment as you have, and I am grateful to it, in that my attempt always to keep an open mind and not to be a partisan, I felt that in this area I was going to fail because I so totally agree with your position. And I have been so long in the searching for, until I read in The New York Times the other day the splendid review of The Irony of Free Speech, I despaired at ever finding a distinguished scholar who was going to take anything other than, ultimately take anything other than the usual (speaking as you had in the last generation’s terms), the usual position on the absolute nature of the First Amendment. Now, I look to you for philosophizing about and explaining a position that I feel very, very strongly. I don’t believe that our community can long survive if we become so absolultist in our concerns about individualism. And your distinction of democracy, you wonderfully pose here the posture that I think we must adopt. What hope do you see for your position? Because you do take a position; you don’t just say, “We either take
one” … when you talked about the balance, the combination. What hope do you see for a developing theory of the First Amendment that includes what you want to include?

FISS: I believe we have a moral duty to be hopeful all the time.

HEFFNER: That’s a very funny answer.

FISS: I think the last 25 years have been disheartening from this perspective. I think the body of Supreme Court doctrine that has been yielded for this period has been disheartening. But when I stand before my students two or three times a week, probably more than they want, you see lights go on. The law is not settled forever today. And my hope, such as it is, is a hope that looks to the new generation who were born before the ’60’s, after this period of sort of sharing with them some of my aspirations.

HEFFNER: Well, when you talk about lights going on, the light is going on that tells me we’ve passed our time here. Please stay where you are. We’ll do a second program. But let me thank you so much for joining me today, Professor Fiss.

And thanks, too, to you in the audience. I hope you join us again next time. And if you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”