Liberalism Divided: Freedom of Speech and the Many Uses of State Power

Owen M. Fiss
Boulder, Colorado: Westview Press, 1996
192pp., $18.50 paper

Henry Gonshak
Montana Tech-UM

Owen Fiss's Liberalism Divided: Freedom of Speech and the Many Uses of State Power will, I suspect, appeal primarily to specialists in the legal field--law professors and students, judges and lawyers. Written in a style reminiscent of legal briefs, the book is sober and measured to a fault. It's no mean feat to make such explosive issues as the feminist debate over pornography or the NEA's Mapplethorpe controversy boring, but Fiss, Sterling Professor of Law at Yale, manages to pull it off. The book's dullness is regrettable, because buried beneath Fiss's turgid prose are some fascinating and original ideas which should interest anyone concerned about free-speech issues in American democracy.

Liberalism Divided collects eight essays which Fiss published originally in various legal journals over the last decade; the author has added an introduction, as well as appended a brief prologue before each piece. Along with studying the NEA furor and the feminist porn dispute, Fiss discusses the Supreme Court's landmark 1964 decision in New York Times v. Sullivan, which greatly restricted the conditions under which a newspaper could be found guilty of libel, as well as the 1971 Pentagon Papers case, where the court upheld the right of The New York Times to publish a leaked, confidential government study on the Vietnam War. The book ends with an essay first given as a speech at a 1993 conference in Budapest, in which the author advises journalists from ex-Soviet-bloc countries as to how their newly democratic nations can best establish a free press.

The opening essay, "Free Speech and Social Structure," establishes some of the book's central concerns. Fiss notes that traditional interpretations of the First Amendment posit that the state can best enhance free speech by exercising minimal control over public political debate. But Fiss contends this belief is based upon an obsolete notion of the nature of public discourse. Since now most all Americans obtain their information about politics almost solely from mass media, the media, Fiss maintains, holds a virtual monopoly on political speech, deciding what issues are focused on, and how these issues are framed. Fiss sees the media's presentation of these issues as rarely objective. On the contrary, driven by commercial imperatives, the media expresses, implicitly or explicitly, the thinking of its advertisers, and of the huge conglomerates who control print and television journalism--two groups who share a centrist, corporate mentality profoundly hostile to all minority opinion. How, Fiss asks, can the electorate make informed, intelligent decisions if it's deprived of what former Supreme Court justice William Brennan famously called the "uninhibited, robust and wide-open" public debate which Brennan thought vital to American democracy? Fiss's solution to this problem is undeniably controversial. For the state truly to uphold the First Amendment, he argues, it must do more than merely avoid the stifling of robust public debate; rather, it must actively use its powers to regulate the media in order to ensure that the public is provided with a full diversity of political perspectives, including ones the media itself finds repellent.

In his chapter on the NEA, Fiss applies these ideas to construct a startlingly unique (if admittedly debatable) defense of the agency. By financing an exhibit of the explicitly homosexual and sadomasochistic photographs of the late Robert Mapplethorpe, the NEA, in the view of most right-wing critics, had wrongly used taxpayer money to fund art wildly conflicting with the tastes of most Americans. But that, Fiss claims, is precisely what the NEA should be doing! First, analyzing Mapplethorpe's deliberately shocking "X,Y, Z" Series, Fiss argues persuasively that the photos aren't legally obscene according to the standard set by Miller v. California (1973) since they clearly do have "aesthetic [and] political...value" (93). But Fiss goes beyond this oft heard argument, claiming that if it's the duty of the state to uphold the First Amendment by offering the public a full diversity of views, then state agencies like the NEA are virtually compelled to fund art such as Mapplethorpe's, which provides perspectives almost certain to be marginalized by the mass media. If, on the contrary, the NEA agrees to fund only projects which mirror the mentality of mainstream America, thus duplicating rather than supplementing media discourse, then, Fiss concludes, the agency has ignored its constitutional obligations.

Fiss anticipates several likely objections to his proposals. No doubt, both right- and left-wing libertarians will charge that Fiss's plan smacks of Big Brother, since it expands the power of the state to meddle in the private sector, thus, in this view, destroying rather than upholding free speech. Fiss counters that his reforms wouldn't lead to government censorship, since the state's interventions would be "content-neutral"--i.e., not pushing any one perspective, but simply ensuring that all are given a fair and equal hearing. He also addresses the probable complaint that if granted greater regulatory powers, the state would inevitably seek less to expand ideological diversity, than to disseminate ideas which furthered its own interests. But Fiss sees no reason to suspect that, under his proposal, the federal government would be any less impartial than are the media moguls who currently run the show. If anything, Fiss contends, since the state isn't quite as profit-driven as is the media, it's the more likely of the two to act equitably (a dubious argument, perhaps, in this era of endless campaign finance scandals).

As I've said, these ideas are so provocative it's tragic that Fiss presents them so poorly. Not only is his writing numbingly bland, but the book's structure also undermines the force of his arguments. By merely collecting essays he's published over many years, rather than integrating these pieces into a unified work, Fiss produces a volume that's not only repetitive, but also often dated. For example, in a prologue Fiss admits that in order to make his analysis of the media current, he'd have to address the question of whether the Internet has diminished the major networks' control over public discourse. The fragmented format of Liberalism Divided also limits Fiss's ability to fully develop and support his ideas. For instance, an obvious practical problem with Fiss's proposal is that it goes against the grain of the nation's present loathing of "Big Government." A complete discussion of his reforms would consider ways to counter inevitable public and legislative hostility. As well, Fiss says little about what specific measures he'd advise the state to implement. He does note a few steps the federal government has already taken which he approves of: e.g., the establishment of a Public Broadcasting System unbeholden to advertisers, the passage of a "fairness doctrine" requiring network news programs to broadcast editorial opinions contrary to their own, and the passing of another law making the state grant preferential treatment to women and minority businesses seeking broadcasting licences. But, clearly, a proposal as sweeping as Fiss's demands a blueprint detailing exactly how he'd go about putting his theories into practice.

As for problems with individual essays, the weakest in the collection is "Freedom and Feminism," which supports the anti-pornography ordinance crafted by law professor Catharine MacKinnon, enacted in Indianapolis and later ruled unconstitutional by a federal appeals court. Defining pornography as the "sexually explicit subordination of women," the ordinance banned porn on the grounds that it denies women their civil rights. Fiss endorses the law by making a three-fold argument: first, that the framers of the Constitution didn't mean to protect obscenity; second, that porn threatens women's physical well-being by encouraging rape and sexual assault; and, third, that by "subordinating" women pornography inhibits their ability to contribute to democratic discourse, thus subverting the aims of the First Amendment.

All these arguments are, at best, highly debatable. As for Fiss's view that the authors of the constitution didn't intend to protect pornography, it's rather hypocritical, to say the least, for a legal scholar who elsewhere in his book is so supportive of judicial and legislative activism to suddenly transform into a strict legal "intentionalist," demanding rigid adherence to the presumed intent of the Constitution's framers, when doing so bolsters his argument. In general, Fiss would agree, I imagine, that the authors of the Bill of Rights deliberately left its wording open-ended enough that future generations could interpret its provisions in light of changing historical circumstances. As for Fiss's second point, to my knowledge there is no solid empirical evidence that pornography is a common cause of rape. Finally, despite his professed commitment to free speech, Fiss never considers what a chilling effect an ordinance as categorical as MacKinnon's would almost surely have on artistic and intellectual expression in general. As ACLU head Nadine Strossen emphasizes in Defending Pornography: Free Speech, Sex and the Fight for Women's Rights, MacKinnon's law disregards the crucial qualification in the Supreme Court's definition of obscenity, noted earlier, which excludes any material that has "serious literary, artistic, political or scientific value." (Defending Pornography 63). Strossen also notes (while Fiss does not) that in Canada a law based on the Indianapolis ordinance has been used to censor gay and feminist literature, including works by MacKinnon's ally, Andrea Dworkin.

Perhaps the biggest problem with Liberalism Divided concerns Fiss's woefully inadequate treatment of the important idea alluded to in the book's title. In his introduction, Fiss asserts that for most of the post-war era (e.g., during McCarthy's witch-hunt against alleged communists) a broad liberal consensus prevailed regarding the importance of defending free speech against the threat of government repression. However, over the last twenty-five years, Fiss contends, that liberal consensus has shattered as the left has split into two opposed camps: those who give priority to "liberty" by backing the broadest possible free speech protections, and those who favor "equality," and so are willing to limit individual free speech, if such speech is seen as infringing on the rights of historically persecuted minorities to achieve equal status in American society. One example of this conflict Fiss cites is campus speech codes, which "equality" liberals support, but "liberty" liberals (admittedly, a clunky term) reject. Clearly, Fiss has touched on a promising subject for a political treatise. Yet, astoundingly, after introducing this division among liberals at the start of the book, Fiss never returns to it again!

Had I been an editor at Westview Press, I'd have sent back Fiss's manuscript with a tactfully worded letter recommending that he turn his disparate collection into a unified, developed work. Absent that book, this intriguing but ultimately frustrating volume will have to suffice.

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