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. He reframes the debate by showing how restrictions on political expenditures, hate speech, and pornography can be defended in terms of the First Amendment, not despite it. He reminds us that the state can 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 composition.
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(222mm x 133mm x 8mm)
Harvard University Press
Publisher: Harvard University Press
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US Kirkus Review »
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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Author Biography - Owen M. Fiss
Owen M. Fiss is Sterling Professor of Law, Yale Law School.