Overview

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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Reviews

If managing to infuriate people across a wide range of the political spectrum is a reliable measure of an essay's value, then Owen Fiss' succinct and lucid new argument, The Irony of Free Speech , may well come to be considered epically successful...Fiss, a Yale law professor, is that odd dinosaur: an old-line liberal who has thought matters through carefully and at length, and who acknowledges his own value judgments. -- Paul Reidinger ABA Journal

In this slim but provocative volume, Yale law professor Owen Fiss addresses an impressively wide range of free speech issues, from hate literature and pornography through campaign financing, public funding of the arts and regulating the media. It is essential reading for anyone dissatisfied with the civil libertarian rhetoric...and who seeks a more balanced liberalism in which the demands of equality are heard alongside those of liberty. -- Wayne Sumner Toronto Globe and Mail [A] sophisticated confection...Fiss, Yale Law School's Sterling Professor of Law, is a serious and learned academic, attuned to the myriad nuances of constitutional law...[He] declares that the First Amendment can be viewed not only as a protector of the individual interest in self-expression (the so-called libertarian theory of speech), but also as a protector of popular sovereignty and a force to broaden the scope of public discussion (the democratic theory of speech)...[Fiss's] intellect is stamped on every sentence in The Irony of Free Speech, which is destined, I'm sure, to become the fodder for a thousand law review articles. -- Joel Chineson The American Lawyer Fiss makes many good points and stimulates thought on an increasingly important subject. The Irony of Free Speech is well worth the few hours that a careful reading requires. -- Robert Hauptman Journal of Information Ethics [A] fine achievement. In addition to the virtues of brevity and conciseness, The Irony of Free Speech contains the much rarer merit of original thought on fundamental issues. Fiss undertakes that most difficult of tasks: to try to get us to think in a new way about old and familiar issues, and he does so with a clarity and precision, style and grace, that is both stimulating and impressive...On finishing The Irony of Free Speech, one knows that he or she has read something of genuine value and has had a real intellectual experience. Fiss's ideas stay in the mind, bouncing around, dislodging other previously held notions...[It] achieves all that a book can hope to achieve. -- Daniel J. Kornstein New York Law Journal If managing to infuriate people across a wide range of the political spectrum is a reliable measure of an essay's value, then Owen Fiss' succinct and lucid new argument, The Irony of Free Speech, may well come to be considered epically successful...Fiss, a Yale law professor, is that odd dinosaur: an old-line liberal who has thought matters through carefully and at length, and who acknowledges his own value judgments. -- Paul Reidinger ABA Journal [Fiss's] comments are always thoughtful and illuminating. -- Robert Amdur Ethics A slim volume offering large arguments for an activist government that protects and also promotes free speech...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 Fiss contends that government plays a valuable role in maintaining public debate, and he makes several convincing arguments against the many legislators and advocates from across the political spectrum who strongly disagree with that simple postulate...Bolstering himself with a plethora of federal court precedents and solid legal scholarship, Fiss speaks volumes in fewer than 100 pages. Booklist

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)

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Owen Fiss is Sterling Professor Emeritus of Law at Yale University.

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