The Irony of Free Speech

Yale Law professor Fiss is a liberal, but not of the doctrinaire ACLU variety. In this brief but challenging book, he argues that state intervention might actually support free speech values. Issues of hate speech, pornography and campaign spending limits, Fiss writes, suggest difficult tensions between the ideals of liberty and equality. In the case of spending limits, he believes that court inquiry based on real-world effects rather than ""content neutrality"" would find that such limits support more speech. He acknowledges that similar findings might also be possible in the knottier cases of hate speech and pornography, though he is neither as certain, nor as explicit, as those in the critical race theory movement. Regarding federal grants to artists, he wants the NEA to consider not only artistic merit and decency but also ""the public needs for self-governance."" Saying that ""arguably, all unorthodox ideas have claim under the first Amendment to public funding but perhaps those most unavailable to the public have the greatest claim,"" Fiss argues that funding the Robert Mapplethorpe exhibition thus provided vital views of the gay community. He does not, however, address how that exhibition might have offended some views of decency. Market influences on the press, Fiss suggests, keep certain worthy subjects from coverage; he also notes that the Supreme Court, whose recent speech decisions have a libertarian core, could justify removing support for public broadcasting. Instead he hopes that the court embraces an ironic truth: state action can enhance the freedom of speech. (Sept.)