The Irony of Free Speech, Part II

GUEST: Owen Fiss
VTR: 10/02/96

I’m Richard Heffner, your host on The Open Mind. And this is the second of two programs with today’s guest. Now, if one assumes that key to the good society is, above all else, a truly well-informed public that makes its freely and openly formed opinions known and effects them through governments chosen by democratic means, then surely one can embrace the notion that “The state might become the friend rather than the enemy of freedom.” Indeed, some believe that was our Founder’s ultimate assumption, even though in our own time it is not a particularly popular one.

Whatever, I want to continue discussing this proposition today with Owen M. Fiss, Sterling Professor at Yale Law School, focusing again on his provocative book, The Irony of Free Speech.

Now, Professor Fiss, you spoke along these lines in our first program, and I thought of these incredible words that you wrote in your book. You wrote here, at the end of chapter three, you wrote about, “In that instance, the allocative state will, as a matter of constitutional law, have been brought under the same regime that now governs the regulatory one. Free pres will have become reduced to free enterprise, and the fate of our democracy will be placed wholly in the hands of the market.” Would you elaborate a little more upon that? We touched on it last time, but please do.

FISS: The press in the United States, with the notable exception of PBS, is largely, predominantly in the hands of private enterprise. To some degree, that economic autonomy of the press is a good perspective of our freedom, because it limits the capacity of the state to manipulate what the citizens hear by controlling promotions, who is hired, who is fired, how much capital goes to the press. So I start with the viewpoint that the economic autonomy that the press enjoys from the state is a good.

On the other hand, I think it’s absolutely crucial to understand the press in our country as, although it is autonomous from the state, which is to some degree good, it is embedded in a market, and it feels the pressure of the market in its everyday activity. And I also think it’s important for us to recognize that the market, although it is a good institution to develop delivering a rich spread of good and services, the market is also a structure of constraint, and that pressure, economic pressures upon the press will have a significant impact on what it reports.

Now, it may be that economic pressures push the press in a way that needs it to give the public everything that it wants. But it’s also true that the economic pressures on the press will sometimes lead it to skimp on what it gives the public.

HEFFNER: Yes, but you say those economic pressures “may” press the press in the direction of providing the public with the information it wants. But isn’t that the problem? That’s the marketplace concern. That’s the formula. That you give the public what it wants. And it’s not because you and I are academics; it’s because we’ve thought about this problem. What about the public needs? What about the needs of our society? What about the general welfare?

I always go back to the Preamble to the Constitution and think that it would be nice if on occasions corporate lawyers would look to the Preamble to the Constitution rather than to its First Amendment when our Founders indicated, “We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do establish this Constitution,” that primary statement of the Founders’ intent seems always to go by the boards when we get into this contemporary matter of the free marketplace of ideas.

FISS: But I think we have to be careful. What I would say is this: I don’t think we should assume that the press is not necessarily responding to the needs of the citizen. All I think we need to say – and I put it in my original formulation – is that there’s a risk that’ll be unresponsive. I mean, in some situations the market pressures may be such to lead the press in such a way that it in fact will deliver the news that the people need. You could imagine, for example, that there is an interest in the elections now, where the papers have a very high interest in sort of delivering news about the elections which satisfy the needs of the public. Buy my point is that we can’t always count on that, and that there’s no necessary or probabilistic relationship between the profit motive of the press and the needs of the public. And what we need is an institution like the state, but we need an institution – let’s not talk about the state rule – we need an institution to counteract the pressures of the market when those pressures are leading the press away from satisfying the needs of the public.

Now, that institution, to some extent, might be provided by the profession of journalism, or the schools of journalism. There is an ethos within professional schools now that the mission of the journalist is not just simply to make a buck, but to discharge the democratic responsibilities of the press. And so I see a role in this picture for institutions like journalism schools, like the profession itself. But I also think on occasion that we need an institution as powerful as the state to counteract the pressures of the market.

HEFFNER: But, you know, if you posit the notion again of a national news council it will be hit on the head by powerful elements in the press that say, “Don’t fence us in. Don’t touch us. We’re untouchable. Look at the First Amendment to the Constitution of the United States.” So what you say is not to be challenged, except to ask you: How do you effect this? Where do you see this outside influence, this influence that perhaps does not come from government, but that does indicate that those who talk about the free marketplace of ideas are combining words and concepts that don’t really belong together? How can you put ideas into the same framework as the marketplace? Where do you want to go?

FISS: Well, I think there are a number of strategies that are possible. I think, for example, that there are strategies of regulation that may be possible. I, for one, would invite a return of the Fairness Doctrine. I, for one, believe that there’s some role for what’s called “editorial advertisements,” and that the FCC should insist upon it, much like we have a time for candidates. I also believe that it need not simply be in terms of regulation. I also believe that there is important, affirmative, allocative options that are open to the state. For example: I believe that the public libraries are an important source of our freedom. I think public television and public radio deserves the support of the state in terms of making subsidies available. I think it’s appropriate for the FCC to grant licenses on the basis of what the programming will be and how it will respond to the public needs. So I see both regulation, like the Fairness Doctrine, and affirmative strategies, like subsidies to speakers who otherwise would not be heard, as a way of sort of counteracting the market. The regulation and the subsidies are both mechanisms to do it.

How do we get the public to support these measures is a matter that, A) lies beyond my competence, and B) sometimes beyond my imagination. I mean, I think we need leadership, very serious leadership in domains political and cultural. What will produce it and how we get that leadership is not clear. I think we’re headed in a different direction.

HEFFNER: Well, let me focus for a moment on the Fairness Doctrine. When I’ve had Fred Friendly or Floyd Abrams or any name-the-journalists, print or otherwise, or their legal advisors, and you will find people who despise, so they say, that dead hand, the Fairness Doctrine. When I challenge them to show me where the hand was dead in its impact, I get no satisfactory answer. But the Fairness Doctrine is gone. We managed to get rid of the Fairness Doctrine as a society. The government grants for the arts for the area of ideas, for the area of news and public television, are being diminished constantly.

FISS: Absolutely.

HEFFNER: Why in the world are you hopeful?

FISS: (Laughter)

HEFFNER: (Laughter) At the end of the last program you spoke about being hopeful. Where does it come from? And mustn’t we bite the bullet a little more? You talk about leadership. This is clearly a political, hot political issue, and it’s been interpreted as a constitutional issue instead.

FISS: Well, I’m not happy with the answers the court has given these questions for the last 25 years. But I wouldn’t make the separation between a constitutional issue and a political issue in quite the way you do. I think the First Amendment in many respects puts the court in the position of having what a former colleague of mine once said, “a Socratic dialogue with society.” I think in every First Amendment case, society is asking the court, “What is freedom? What does our freedom consist of?” And the answers that the court gives, I think has an impact on the way the public, in the broadest sense, understands freedom. I think that if the court could be made to understand – and there are little cracks and hopes on the court of possibility – if the court could somehow reverse this kind of emphatic, individualist, libertarian theme that has propounded in the last 25 years and recover some of this more democratic theory of the First Amendment and begin speaking, begin speaking to the public and telling them that freedom is not just this individualism, freedom is not wholly guaranteed by the market, maybe the changes that you are hopeful occurring will occur.

I also think that today the dialogue on what is the meaning of freedom is now wholly in the hands of the United States Supreme Court. I think there are constitutional courts throughout the world that are engaged in the dialogue of what is the meaning of freedom. And here I’m thinking of the constitutional courts of Europe, I’m thinking of the Supreme Court of Canada. And their answers to these questions are dramatically different than the answers the Supreme Court has given us in recent years. And my own impression is that the answers that the Supreme Court of the United States has given in the last 25 years to the question, “what is freedom?” is becoming increasingly shrill and disconnected from the democratic traditions that prevail in Europe and in Canada. And maybe if the court listens to these others’ answers and gets a sense of how unusual, how exceptional its answer is, it may begin the cycle back and recover this more general democratic theory of freedom.

On the political issue, I don’t really know. It almost broke my heart one day to see that even Mario Cuomo doesn’t like the Fairness Doctrine. I mean, it’s a, you know, you could understand why people who are involved with journalists and who are journalists don’t like something like the Fairness Doctrine. They want as much autonomy to do what they think is proper as possible. But why, when you have responsible political leaders disavowing it without understanding really what they’re saying, that is disheartening?

HEFFNER: But, you see, that level of being disheartened has to do something also, has to play a role too in your possibilist approach to the impact of courts in other countries, because I had a horrendous scenario in my mind as you were describing that possibility: Perhaps what has happened in other parts of the world will influence our own court. Suppose it goes the other way, which is the way it has usually gone: We have impacted upon the legal theories, the constitutional theories, I should say, of other countries. They haven’t caught up as yet with our deregulatory spasm. Perhaps I shouldn’t call it that. It’s gone on too long simply to be a spasm.

FISS: Right.

HEFFNER: And I wonder if what we’re doing isn’t better reflective of what we can expect in the 21st Century than what they’re doing. And I suppose I should add, “God help us.”

FISS: (Laughter)

HEFFNER: But your optimism is … I don’t find that optimism in The Irony of Free Speech. It is such a tightly woven statement of problems that you see that I don’t find, and I’m not looking for, a Pollyannish approach. There is no optimism here, I don’t believe. Am I misreading The Irony of Free Speech? Yes, you offer an opportunity to interpret correctly the Constitution as you see it. But I don’t have the sense of possibilism that you now express.

FISS: I think you read the book correctly. I don’t dwell on the future in that book in terms of projecting an optimistic image. I don’t really have a clear sense of the future. Look, I’m a law professor. I study the court decisions. I try to make sense of them. I write a book. I think about these decisions and how can they make sense. I don’t have a real professional competence to speak to the future or predict the future, and I don’t make those gestures. But I will say this: I think the future will be determined by the truth. I think the Supreme Court of the United States was a primary moving force in shaping not just constitutional doctrine, but shaping how the whole world understood constitutionalism. When it decided Brown v. the Board of Education and brought into being what is generally referred to as the Warren Court, I think that period in which we elaborated on racial equality and freedom of speech and the fairness in criminal procedure and how people on welfare should be treated, that was taken as a beacon for the whole world. I don’t think anyone – anyone – receives the Free Speech Doctrine of the Supreme Court for the last 25 years in those terms. And I think they see at its core that it is a kind of expression of the individualism, the market, excessive market adoration of America more than an expression of the democratic foundations of the Republic. So I can’t, I have no competence to speak to the future in the sense that I predict. But I do think that the truth will have a decisive impact on which way the law will go.

HEFFNER: And we turn to Milton, who said, “Whoever knew truth put to the worse in a free and open encounter?” And what you posit here in The Irony of Free Speech is that we less and less have that free and open encounter because of the current interpretation of the primacy of the individual under the First Amendment to the Constitution. So that we believe that the truth shall make us free, but we have to see and find and learn that truth. And what you describe here is a system under which we’re saying “Look, what is most important is the primacy of the marketplace. That’s where you find the truth.”

FISS: Look, Mr. Heffner, let’s be clear about one thing. I have the most privileged position in the world. I’m a professor at the Yale Law School, and each year 175 brilliant, idealistic students are delivered to me. And I have the absolute freedom to tell them where the truth shall be found. And I have the freedom to publish this book, and I have the freedom … I mean, there is that space. So it’s true that we live in a culture that is sort of dominated by the market, but there are spaces, there are spaces. And I think we all have to sort of make use of those spaces and do what we can.

HEFFNER: Well, when Max Lerner used to come to this table, he would say, “You know, Dick, you’re too damned pessimistic.”

FISS: (Laughter)

HEFFNER: And I’d ask him what he was, and he would say he was a possibilist, and I think we all should be. I wonder though … I appreciate what you say about the fortunate position you hold, and I feel the same thing in terms of doing this program or as a professor, but it does seem to me that we’re not facing up sufficiently to the dynamics of our culture, of our society, and what is likely to happen, as we can talk to 100, 200 students a year, and maybe two or three or 10 or 20 will carry a little bit the message to think, think, think. But what you have described here as the result of these several hundred years of the freedom to teach is not very hopeful, it seems to me. And I think we come back to this damned notion of the marketplace of ideas. Don’t you find that a strange combination of notions? Aren’t ideas, isn’t thought to be set aside, aren’t they to be set aside from the marketplace?

FISS: Well, I think the marketplace of ideas is a metaphor that has its roots in Justice Holmes’ views of the First Amendment, although he spoke about the free trade of ideas, and takes on greater life during our time. I think it’s an idea that, as you suggest, that’s A) bankrupt, and B) revealing. To talk about the marketplace of ideas seems to me to be a denigration of what ideas are. But I think it’s our job to point that out. I mean, people like Justice Brennan, who helped create the notion of the marketplace of ideas, or the metaphor, the currency of the metaphor, I’m not sure they understood the irony of that pressure. I mean, I think it’s an incredibly powerful expression, “The marketplace of ideas,” because it reveals the poverty of a First Amendment that is dedicated to the market of ideas. I think some of us think, we think about a market, that we think about a Persian bazaar where there’s sort of an infinite variety of ideas and that we could have everything before it and choose. But homogenizes and standardizes. I mean, the market that we know and live in America is one that converges all on a single port. And that is antithetical to the notion of a market as a Persian bazaar or even the free trade of ideas. And it is also antithetical, in my view, to what the First Amendment is supposed to be.

HEFFNER: Professor Fiss, thank you so much for joining me again today on The Open Mind.

And thanks, too, to you in the audience. I hope you join us again next time. And if 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.”