 According to Fiss, free speech issues should be thought of as a conflict between...?
Shut Up, He Explained Owen Fiss is a professor at the Yale Law School and a highly regarded scholar of constitutional law. The subject of this short book is the present direction of the law governing the freedom of speech. What Professor Fiss has to say about it is worth attending to not merely because of his prominence in the field but because his argument is planted in the common assumptive ground of a lot of contemporary academic thought about the bankruptcy of individualism. The short way to put his argument (though it is not quite the way he puts it) is to say that our approach to speech has become increasingly permissive. Courts have become more and more reluctant to allow the state to interfere with the rights of individual speakers to say what they wish, and it is time to roll back that permissiveness and to embark on a new approach that would permit the state to silence some speakers and promote others, but still, Fiss argues, in the name of freedom of speech. This is what Fiss means by the "irony" in his title: that true freedom of speech for all requires suppressing the speech of some. It is a paradox. An irony would be the observation that an attempt to increase freedom for all often entails, despite our best efforts, a decrease in freedom for a few. If Fiss had addressed the subject of free speech in this spirit, as an irony, he would undoubtedly have had some interesting things to say, for he is a learned and temperate writer. But he has, instead, chosen to address the issue as an advocate for specific groups he regards as politically disadvantaged--women, gays, victims of racial-hate speech, the poor (or, at least, the not-rich), and people who are critical of market capitalism--and to design a constitutional theory that will enable those groups to enlist the state in efforts either to suppress speech they dislike or to subsidize speech they do like, without running afoul of the First Amendment. Fiss does not avoid it. The Irony of Free Speech is a discussion of several speech issues: campaign-finance laws, state funding for the arts, pornography, speech codes, and equal time. These discussions are not doctrinaire, but their general inclination is to favor state intervention, on political grounds, in each of those areas--that is, to favor restrictions on campaign spending, greater regulation of pornography, and so on. Fiss' analyses of specific cases are presented against a lightly sketched historical argument.
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