Book Review: The Irony of Free Speech

I recently finished Owen Fiss's The Irony of Free Speech, a book that focuses on hate speech, pornography, and campaign finance with a firmly governmental (Fiss's term is "democratic") stance regarding the First Amendment. Reading the summary of the book, I thought that I would agree with Fiss's argument, and I did...to a point. While he makes many valid points that I think have been missing from our discussions in class, mainly about how power operates through the First Amendment, the way he makes his argument is disappointingly problematic.

Fiss points out in the first chapter that "hate speech tends to diminish the victims' sense of worth, thus impeding their full participation in many of the activities of civil society, including public debate" (16). He goes on to make a connection to campaign financing, arguing that "the voice of the less affluent may simply be drowned out" if politicians must depend on their own funds rather than state-allotted financing. I completely agree that the "freedom" element of "freedom of speech" must not be viewed in a libertarian sense but in a more comprehensive, governmental sense. After all, how free are you if you are cast into the middle of the ocean and are told you are "free" to swim ashore if you please? Likewise, those who are targeted by hate speech are told that they are "free" to reply, even though they might not have the same publicity, spending and distribution power, access to fora, etc. of the speaker that targeted them. Fiss also argues that, if government can restrict freedom of speech in matters of national security, it should use the same sort of regulation to ensure the "fullness of debate," thus restoring power and agency where they are lacking (20).

Even though Fiss makes these crucial points about power, he also undermines his analysis by flippantly dismissing the actual language of the First Amendment, asserting that "the agency threatening speech values" need not be the state itself, and in fact showing state action in a case is "a purely technical matter." Since the goal of the First Amendment is to foster "full and open debate" according to Fiss, no state action is required (17). He casts aside "Congress shall make no law" in favor of uninhibited, robust, and wide-open debate, elevating the precedent set by NYT v. Sullivan to the level of the Constitution. Even though I may agree with his main point, the way he frames his argument here is rather presumptuous and troubling.

That being said, we must accept Fiss's assumption in order to evaluate his other ideas, one of which includes a reevaluation of freedom of the press. While Fiss admits that content-neutrality might be threatened if government regulated the press, he argues that the free market is actually worse for allowing full debate in the public sphere (52). As we've discussed in class, when a private newspaper is trying to turn a profit, they might not find that opportunity in allowing every view equal space in their publication. On the contrary, they usually find better luck by becoming explicitly partisan in order to retain a solid subscription base. We can see this at work locally. An acquaintance of mine who works in the subscription department at the local News-Gazette recently told me that after the conservative paper sold an ad to a Democratic candidate, they were flooded with subscription cancellations, prompting a discussion at the office about whether ad revenue or subscription base was more important for the financial outlook of the paper. Fiss's argument is definitely worth consideration, especially now that many print publications are in a crisis, declaring bankruptcy and desperately trying to find a way to stay in business.

While Fiss is quick to find flaws in the free market, he is relatively dismissive of the financial impacts of government regulation on private companies. In Pacific Gas & Electric v. Public Utilities Commission, a case he gives as an example, the power company sued the California Utilities Commission after it required the company to yield space in its billing envelopes for a community watchdog group to disseminate their reports on the company's rates and performance. Even though this would not cost the company extra postage, the citizens' bulletin did replace the company's newsletter, which the company understandably found to be more profitable than the alternative. The company won, not on the basis of its economic loss, but because the requirement was compelled speech. Friss acknowledges the financial loss, but claims it is of "no constitutional significance"; because all citizens' tax dollars are inevitably used for purposes counter to the taxpayers' will or interests, "[h]aving one's property or wealth used to support activities that one detests is widely held to be the price of citizenship in a democracy" (67-8). The problem here, however, is that corporations aren't citizens and should not be treated as such. If a corporation and the individual who runs that corporation are both under the same regulations, then the individual is regulated twice-over, which seems unfair.

As I read Friss's book, I wanted to agree with him. In fact, I did agree with him based on my own subjectivity and opinion of right and wrong. But, drawing on my knowledge of First Amendment law from class, I kept finding holes in his arguments. Now, I'm no Mike Huckabee, but I wonder if the public's interest might best be served if we could somehow alter the language of the First Amendment so that scholars like Friss could argue on firmer ground. Of course, the power structures that Friss decries would probably corrupt any attempt to restructure the Constitution in order to maintain their power.