Vol. 7 No. 1 (January 1997) pp. 16-18.

LIBERALISM DIVIDED: FREEDOM OF SPEECH AND THE MANY USES OF STATE POWER by Owen Fiss. Boulder: Westview Press, 1996. 192 pp.

THE DEATH OF DISCOURSE by Ronald K.L. Collins & David M. Skover. Boulder: Westview Press, 1996. 294 pp.

Reviewed by David Schultz, Department of Political Science, University of Wisconsin, River Falls.
 

If ever two books represented contrasting approaches to the First Amendment, Fiss’ LIBERALISM DIVIDED and Collins’ and Skover’s THE DEATH OF DISCOURSE do. Different in substance, argument, and purposes regarding what the First Amendment should protect, these texts also contrast in tone, writing style, and presentation, reinforcing the respective substance, goals and purposes that each book professes.

LIBERALISM DIVIDED constructs a reasoned analytical discourse that collects together eight of Fiss’ previously written essays on diverse aspects of the First Amendment, ranging from his reviews of Kalvin’s WORTHY TRADITION (chapter 1), comments on the Indianapolis antipornography ordinance (chapter 4) and the Saint Paul cross burning case (chapter 6), to the Pentagon Papers case (chapter 7), as well as other discourses commemorating the one-hundredth anniversary of HARVARD LAW REVIEW and the collapse of the Berlin Wall. The thread holding these essays together is Fiss’ argument that the First Amendment free speech guarantee is to promote rational deliberative discourse that improves the collective self-determination of citizens to reach and render political decisions. (p. 18)

In arguing that the core of the First Amendment was and is still to promote collective political deliberation, few, except most notably Collins and Skover, would object to Fiss’ claims. However, Fiss adopts no libertarian approach to the First Amendment, contending instead that there may in fact be situations where the state may be justified in limiting some forms of activity to protect the collective democratic self-determination of our society. Specifically, Fiss notes how many of us would argue that political spending is not speech and therefore campaign expenditures ought to be limited, or how some forms of hate activity may haze or silence others, diminishing not only specific individuals’ ability to speak, but also the collective capacity of our political to deliberate.

Yet how might we allow the state to regulate the speech of one to assist another? Here, Fiss develops his state as a high-minded parliamentarian theory (pp. 101, 117, 153), whereby the "state is functioning like a parliamentarian, trying to make certain that the public is informed. It is almost as though the state were saying, ‘We have heard that point several times now,’ or ‘Let’s hear from the other side.’" (p. 153) In articulating his parliamentarian thesis, Fiss offers a challenging and intriguing theory about how some alleged types of speech might need to respect broader collective goals to secure the political goals of furthering democracy.

As Fiss explores diverse subjects such as the Indianapolis antipornography ordinance or the Saint Paul cross burning case, he brings to these discussions analysis and insights seldom found in either. In the case of the Indianapolis ordinance, Fiss notes how the law actually sought to address four goals, including those aimed at preventing coercion of another into pornography as well as the trafficking in pornography, yet when Judge Easterbrook invalidated the law he treated the act as a unitary whole. Fiss’s discussion of the various provisions of the ordinance is important in that it brings into clarity the political issues MacKinnon and Dworkin were presenting, indicating that perhaps at lease some parts of the law should have been upheld, if not for the fact that some of the provisions really did not implicate the first Amendment, but because some provisions silenced women and further antidemocratic ends. Similarly, the broader goals of the Saint Paul ordinance may have also deserved more respect, again in terms of how they served the egalitarian goals that allow others to speak in a democracy. Hence, in calling for the state to act as a parliamentarian, Fiss finds cases and goals within democracy that provide defense for the types of speech that should be given greater concern and defense, and when and how the state should intervene.

Yet while Fiss clearly writes a First Amendment defense that harkens back to James Madison, the author is no romantic. He contrasts an older vision of the First Amendment as written to protect the street corner speaker versus a theory dealing with the speech rights of CBS television (p. 18). Such a shift recognizes that the First Amendment must view some institutions as both a speaker and a medium that carries speech, forcing one to ask how we can reconcile the needs of the First Amendment to protect autonomy versus that to protect public debate (p. 38). In addition, recognizing that the First Amendment must confront the specter of the expressive rights of CBS, Fiss notes the challenges that the free market places on speech, hence coercing and constraining the speech of many (pp. 38-39).

Whereas Fiss sees the market as a constraint on speech, Collins and Skover style a First Amendment for the TV generation, recasting the goals of the First Amendment to protect "all forms of media without distinction" (p. 36). Penned in an annoying false sense of originality and brilliance, THE DEATH OF DISCOURSE may represent one of the first attempts to create a Postmodern First Amendment that is geared towards defending commercial market-driven speech. The books joins Marshall McLuhan to Camille Paglia and Madonna, and it even suggests the appropriate multimedia and music to have in the background while reading the aphorisms in a book that appear to be written in a style reminiscent of the sound bites and television commercials and advertisements the discourse defends. Yet once one moves beyond the medium, the message of the book is significant, if not controversial.

The authors draw a contrast between three visions of the First Amendment: a classical approach that seeks to defend the Madisonian goals of speech; a reformist approach like Fiss’ that advocates limited regulation of TV and other media to preserve core First Amendment goals; and a modern or libertarian approach which seeks to defend all modern forms of commercial speech against all types of regulation (pp. 28-36). In perhaps the most profound insight of the book, Collins and Skover argue that the central challenge of the First Amendment is how to invoke the language of Madison to protect cultural speech, a speech often devoid often of any political message or purpose besides selling soap or images (p. 19).

What makes the paradox more acute is that for most people, political speech and the old Madisonian goals have become irrelevant while cultural speech has become the mainstay of what we experience or how we live our life. The authors ask how can we craft a First Amendment that originally had the goals of preventing an Orwellian world of censorship with the new Huxleyan aspect of our culture where most speech is for pleasure (p. 25)? In Fiss’ language, how can we reconcile the political purposes of speech with the commercial, non-political aspects of speech aimed at self-expression and commercial activity? Collins and Skover argue that perhaps the great lie of First Amendment theory is invoking Madison to defend cultural speech. That approach is problematic, hence the basic paradox the First Amendment must confront is defending all commercial and market driven speech with logic aimed at protecting political speech.

Most of the book explores the collision of Orwellian and Huxleyan aspects of speech, in the end rejecting efforts to invoke old theories to protect new forms of speech. Employing a Zarathustra like declaration, the authors conclude that the First Amendment may need to be destroyed to save itself (p. 202) and that commercial and pornographic speech must become part of the First Amendment on their own grounds and that such type of speech must be recognized as the type of speech most relevant to most people and, thus, as most or at least as equally worthy of speech as the political speech of the classical and reformist approaches (p. 196). Hence, the speech most devoid of rational speech-like content must be defended.

Both LIBERALISM DIVIDED and THE DEATH OF DISCOURSE implicate important themes, often agreeing and disagreeing. Both recognize the changing reality of society as posing problems for the First Amendment, and both see the challenge posed in reconciling the political and nonpolitical aspects of speech under constitutional protection. Yet while Fiss defends the noble goals of the older First Amendment and sees threats to traditional speech in the rise of modern commercial speech and institutions, Collins and Skover basically argue that the older approach to the First Amendment is irrelevant to most Americans who find the political anachronistic to the amusement aspects of communication. Hence, Fiss’ book is a defense of democracy, Skover and Collins a eulogy to this speech and an apologia for pornography and Madison Avenue. Fiss’s First Amendment may well be essential to what we would like a democracy to look like, while Collins and Skover to what our culture has unfortunately become. Both books wind up amply justifying those discourses they seek to protect, one defending the polity, the other the marketplace.

In criticism, Fiss’s book is open to the traditional objections that it neglects the self-expression aspects of speech and that it fails to defend many forms of speech that are distasteful yet important to our life, even if not politically-based. Collins and Skover construct a theory of the First Amendment almost solely driven by capitalist free-market concerns that in turn ignores the important political aspects of speech.

Readers will find both of these books stimulating, with many finding Fiss’ more comfortable and Collins’ and Skover’s more untraditional in style and argument.


Copyright 1997