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

• Author: Post, Robert C.

By Owen Fiss. Boulder: Westview Press. 1996. Pp. vii, 192. $17.95.

Brown v. Board of Education,(1) as Owen Fiss(2) correctly observes in the introduction to Liberalism Divided. Freedom of Speech and the Many Uses of State Power, spurred a "revolution in American law" by "claiming a place for equality as central as that for liberty (p. 4). Fiss's own work is inseparably connected to that revolution. Inspired by the Warren Court's commitment to the promise of Brown, Fiss produced an unforgettable body of scholarship that profoundly enriched our understanding of the values of egalitarianism and of the role of courts in achieving those values.

In the late 1980s Fiss began to turn his attention away from the Equal Protection Clause and toward the First Amendment. Liberalism Divided collects essays that Fiss has published on issues of freedom of speech during the past decade. Several of the essays are deservedly famous and influential. They forcefully express the same egalitarian sensibility that had informed Fiss's earlier work. In this respect, Liberalism Divided exemplifies the collision between equality and liberty that has so conspicuously characterized recent First Amendment scholarship.

I should confess at the outset of this review that Owen Fiss has long been my beau ideal of an American law professor. He was my mentor when I was a student, and ever since I have found inspiration in his generosity, his integrity, his luminous and encompassing intelligence. That is not to say, however, that I agree with Fiss's interpretation of the First Amendment. The recent infiltration of First Amendment jurisprudence by modes of analysis derived from equal protection doctrine has been, in my view, largely unfortunate.(3) Because Fiss is so deeply committed to these modes of analysis, Liberalism Divided provides a perfect occasion for assessing some of the implications of this far-reaching development in First Amendment scholarship.

I.

The essays in Liberalism Divided address a large array of controversial issues in which the new egalitarian First Amendment scholarship has challenged traditional understandings. These issues range from the regulation of pornography and hate speech, to guarantees of public access to the media, to reform of campaign financing. With respect to each of these issues Fiss's commitment to egalitarian virtues is overriding. He can barely restrain his admiration for equal protection jurisprudence as "the taproot of modern law" (p. 35), and he makes little effort to conceal his disdain for traditional First Amendment analysis as a "breeding ground of libertarian sentiment" (p. 34). Fiss aspires to redefine First Amendment jurisprudence to reflect the egalitarian values that for him embody "the maturation of liberalism" (p. 4).

The determination and weight of Fiss's project is most evident in his discussion of R.A.V. v. City of St. Paul.(4) In that case the Court struck down a St. Paul ordinance that penalized placing

on public or private property a symbol, object, appellation, characterization

or graffiti, including, but not limited to, a burning cross or Nazi

swastika, which one knows or has reasonable ground to know arouses

anger, alarm or resentment in others on the basis of race, color, creed,

religion or gender.(5)

To prohibit all speech that causes "resentment in others on the basis of race, color, creed, religion or gender" would proscribe a rather large swatch of speech currently protected by the First Amendment. Realizing this, the Minnesota Supreme Court interpreted the ordinance to apply only to "fighting words,"(6) but it apparently misconstrued fighting words to mean "expression that `by its very utterance' causes `anger, alarm or resentment.'"(7) The United States Supreme Court unanimously held that the ordinance, so interpreted, was unconstitutional under the First Amendment.(8) But Justice Scalia, joined by four other Justices, authored an opinion for the Court holding that the ordinance would be unconstitutional even if the Minnesota Supreme Court had successfully limited the application of the ordinance to fighting words otherwise unprotected by the First Amendment.

Fiss interprets R.A.V. as a case that turns on the need "to curtail the speech of some to let the less powerful be heard" (p. 111). He attacks Scalia's opinion, as do many others, for its failure to appreciate that the speech "being regulated has a silencing effect" (p. 119), thereby excluding "blacks" and distorting "public debate (p. 117). But the most revealing moment in Fiss's essay occurs during its discussion of the St. Paul ordinance. Fiss writes: "By its very terms, the St. Paul ordinance seemed to reach very broadly, perhaps too broadly" (p. 113).

I would like to focus on the word "perhaps." Fiss's argument about silencing and subordination applies to the original St. Paul ordinance in exactly the same way as it applies to the ordinance after it was interpreted to reach only "fighting words." Prohibiting all speech causing "resentment in others on the basis of race, color, creed, religion or gender" would also suppress the speech of some in order to let the less powerful be heard. Certainly it would eliminate far more silencing and subordination than would be prevented if the ordinance were to be applied only to fighting words. Why, then, doesn't Fiss apply his same argument to defend the original St. Paul ordinance, the ordinance found unconstitutional by a unanimous Supreme Court? It must be because the egalitarian focus on silencing and subordination is at a certain point trumped by a specifically First Amendment concern for the independent value of speech or the independent rights of speakers.

The word "perhaps" indicates that kiss knows this to be true, but its terse and grudging acknowledgement also indicates that Fiss cannot bring himself to recognize the point except in a vague, equivocal way. The word gruffly registers the concealed presence of independent First Amendment values, but it brushes them aside without discussion or appraisal. It allows us to glimpse the profound incompatibility between traditional First Amendment values and the insistent egalitarian logic running through Liberalism Divided, and it simultaneously reveals that these values continue to press claims that even Fiss cannot flatly deny.

II.

It is necessary to keep this moment of manifest incompatibility in mind, for the fundamental thrust of Fiss's perspective is to deny it. The most characteristic rhetorical stance Fiss adopts is to notice a "conflict between liberty and equality" (p. 116), to profess agnosticism as to the outcome of this conflict, and then to attempt to reformulate the question as "a conflict between liberty and liberty" (p. 5)

Fiss attributes to the "liberty" celebrated in the "free speech tradition" an outmoded and naive focus on the protection of individual "autonomy" and "self-actualization" (pp. 12, 13). He contrasts this antiquated view of liberty with what he sees as the more satisfactory perspective that "[f]ree speech . . . is a public right" (p. 5), whose purpose is "to protect the ability of the people, as a collectivity, to decide their own fate" (p. 38) by ensuring that public debate is sufficiently rich to permit true collective self-determination' (p. 15). A rich public debate is one in which all can speak, so that we can "hear voices and viewpoints that would otherwise be silenced or muffled" (p. 41).

In this way the value of equality is installed in the heart of a revised account of the First Amendment. The tension between equality and liberty dissolves "once we understand that equality need not be seen as an independent value, based solely on the Four teenth Amendment, but rather that it has First Amendment dimensions" (p. 87). The potential incompatibility between liberty and equality, which we glimpsed in the word "perhaps," disappears in a flash of theoretical revision.

If we were to spell out the exact terms of this revision, they might look something like this:

(1) The purpose of the First Amendment is to facilitate collective self-determination.(9)

(2) Collective self-determination is a social right theoretically distinct from and unconnected to individual rights of personal autonomy.(10)

(3) Collective self-determination subsists in a rich public debate that fully informs voting citizens of available alternatives and options.(11)

(4) A full and rich public debate requires that all voices be heard, most especially the voices that otherwise would be silenced or muffled.(12)

This is an elegant and powerful argument. It provides the theoretical structure for virtually every essay in Liberalism Divided. I suspect that it forcefully captures the political thrust behind a good many important scholarly efforts to refashion First Amendment doctrine according to egalitarian values. It is therefore worth examining with great care.

Like Fiss, I also believe that a primary purpose of the First Amendment is to facilitate collective self-determination, so I shall not have much to say about the first proposition of his argument. I would only note that to attribute to the First Amendment the purpose of facilitating collective self-determination is not necessarily to deny that the First Amendment can also serve other, distinct purposes. There are pockets of First Amendment doctrine that cannot be explained purely by reference to the value of democratic self-governance. Examples include issues arising from the regulation of speech between physicians and patients,(13) of the prices of consumer products,(14) and of everyday chatter at an airport.(15)

There is a tendency in Liberalism Divided to jump from the premise that the First Amendment serves the value of collective self-determination to the conclusion that it serves only that value, and that therefore regulations consistent with the value of collective self-determination cannot otherwise be challenged under the First Amendment. But...