In search of a new paradigm.

• Author: Fiss, Owen M.
• Position: Emerging Media Technology and the First Amendment

Teaching law has its special pleasures. At Yale, they come in abundance, since our classes are small, the atmosphere is highly congenial, and we are given absolute freedom to teach what we want and when we want. Yet the joys of law teaching extend to the entire profession. Unencumbered by the demands of clients, bureaucratic procedures, and sectarian loyalties, law teachers in this country are free to engage the highest issues of state and to speak to them in whatever terms we deem appropriate.

The one problem all of us in the profession labor under, and one that I feel acutely, is that of obsolescence. We stand before our students in 1995, and we build on books, classes, and professional experiences that reach back to the 1960's, sometimes even before. As teachers, we must constantly renew our own education--not just school education, but life education--so that we can speak to the issues that are of concern to our students now and that will be of concern to them in their careers and future lives. We need to prepare our students for a world that is so very different from ours.

My involvement with the First Amendment began about twenty-five years ago. I was then a young professor at the University of Chicago, and got the chance to develop a close relationship with one of the leading figures in the field, Harry Kalven, Jr.(1) We spent much of our time together talking about free speech, and the special attraction that he felt towards the First Amendment inevitably rubbed off on me. In the Fall of 1974, just after I moved to Yale, Harry died and left as part of his legacy a huge manuscript that he had begun only a few years earlier. Jamie Kalven, Harry's son, then began the monumental project of readying this manuscript for publication and, for the next decade or so, I worked closely with Jamie on this endeavor.(2) Finally, in early 1988 the book appeared.

When this project was nearly complete, I turned to the First Amendment itself, and I found myself uneasy with the celebratory mood with which Kalven embraced First Amendment doctrine and that so infused his book--a celebratory mood suggested by the title of his book, A Worthy Tradition. I kept wondering why I had such a different reaction to the received tradition than he did. Part of it, of course, was due to his sunny disposition--Harry always saw the best in everything. Yet I also came to the conclusion that part of the difference arose from the fact that he premised much of his analysis on an outmoded paradigm: the street comer speaker.

For me, that paradigm was no longer the proper one to understand the First Amendment. We needed to move from the street comer to CBS. Reexamining free speech controversies from this new vantage point made it possible, I thought, to better appreciate some of the crucial factors shaping public discourse today, including the scarcity of channels of communication and the high cost of speech. Also, with CBS in mind, we could see how the old lines between speaker and censor, or between the...