The Government as Friend and Protector of Free Speech

Iowa Law Review

Volumn 82, Issue 1, 1996, Pages 301-317

  Buss, William G ^a  

^a UNIVERSITY OF IOWA   (United States)

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EID: 0030335784     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (105)

1. Owen M. Fiss, Liberalism Divided 9-30 (1996).
2. See Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (based on the John F. Murray Lecture (Nov. 1, 1985)).
3. In a subsequent introduction to a symposium on "Emerging Media Technology and the First Amendment," Fiss cheerfully acknowledges that his students at Yale have drawn his attention to the fact that a still newer technology (presumably one which includes the Internet with cheap and ready access to all) is replacing the limited-access marketplace of national broadcast media. See Owen M. Fiss, In Search of a New Paradigm, 104 Yale L.J. 1613, 1614-15 (1995); see also American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) (three-judge court) (concluding indecency prohibition applied to Internet unconstitutional largely on the basis of unique characteristics of Internet), prob. juris. noted, 117 S. Ct. 554 (Dec. 6, 1996).
4. Owen M. Fiss, The Irony of Free Speech (1996).
5. Fiss seems to say that the loss of liberal unity extends over the last 25 years, apparently dating it from the debates in the late 1960s and early 1970s over the regulation of the broadcast media and campaign spending. See Fiss, supra note 1, at 1-6, 42-45.
6. In roughly comparable fashion, other constitutional law scholars have advocated a position similar to what I am characterizing as the "primary thesis" in this review. See Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 Tenn. L. Rev. 291, 303-04 (1989) (criticizing Judge Easterbrook's opinion in American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), for failing to explain how "privately wrought suppression . . . of political views" is any less dangerous to free speech than "governmentally wrought" speech suppression); Cass R. Sunstein, Free Speech Now, 59 U. Chi. L. Rev. 255, 295 (1993) (arguing that current free speech doctrine is "ill-suited" to deal with the "modern equivalents of streets and parks" such as broadcast radio stations).
7. In roughly comparable fashion, other constitutional law scholars have advocated a position similar to what I am characterizing as the "primary thesis" in this review. See Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 Tenn. L. Rev. 291, 303-04 (1989) (criticizing Judge Easterbrook's opinion in American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), for failing to explain how "privately wrought suppression . . . of political views" is any less dangerous to free speech than "governmentally wrought" speech suppression); Cass R. Sunstein, Free Speech Now, 59 U. Chi. L. Rev. 255, 295 (1993) (arguing that current free speech doctrine is "ill-suited" to deal with the "modern equivalents of streets and parks" such as broadcast radio stations).
8. See Thomas I. Emerson, The System of Freedom of Expression 3-23 (1970); Alexander Meiklejohn, Free Speech and Its Relation To Self-Government (1948); Frederick Schauer, Free Speech: A Philosophical Enquiry 35-46 (1982); Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the first Amendment," 1964 Sup. Ct. Rev. 191; cf. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 967-81 (1978) (describing and criticizing the classic marketplace of ideas theory).
9. See Thomas I. Emerson, The System of Freedom of Expression 3-23 (1970); Alexander Meiklejohn, Free Speech and Its Relation To Self-Government (1948); Frederick Schauer, Free Speech: A Philosophical Enquiry 35-46 (1982); Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the first Amendment," 1964 Sup. Ct. Rev. 191; cf. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 967-81 (1978) (describing and criticizing the classic marketplace of ideas theory).
10. See Thomas I. Emerson, The System of Freedom of Expression 3-23 (1970); Alexander Meiklejohn, Free Speech and Its Relation To Self-Government (1948); Frederick Schauer, Free Speech: A Philosophical Enquiry 35-46 (1982); Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the first Amendment," 1964 Sup. Ct. Rev. 191; cf. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 967-81 (1978) (describing and criticizing the classic marketplace of ideas theory).
11. See Thomas I. Emerson, The System of Freedom of Expression 3-23 (1970); Alexander Meiklejohn, Free Speech and Its Relation To Self-Government (1948); Frederick Schauer, Free Speech: A Philosophical Enquiry 35-46 (1982); Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the first Amendment," 1964 Sup. Ct. Rev. 191; cf. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 967-81 (1978) (describing and criticizing the classic marketplace of ideas theory).
12. See Thomas I. Emerson, The System of Freedom of Expression 3-23 (1970); Alexander Meiklejohn, Free Speech and Its Relation To Self-Government (1948); Frederick Schauer, Free Speech: A Philosophical Enquiry 35-46 (1982); Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the first Amendment," 1964 Sup. Ct. Rev. 191; cf. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 967-81 (1978) (describing and criticizing the classic marketplace of ideas theory).
13. 376 U.S. 254 (1964).
14. Id. at 270.
15. See supra note 7 (citing authorities for this proposition). See generally Mari Matsuda et al., Words That Wound (1993).
16. See Fiss, supra note 4, at ch. 3; Fiss, supra note 1, at chs. 1, 2 & 8.
17. In this context, Professor Fiss's argument is strengthened by reason of the fact that the government has granted the licensee extraordinary power, see Fiss, supra note 4, at 61-64, and, at least at one time, there was a colorable basis for treating the licensee as a government entity, see Columbia Broad. Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 150 (1973) (Douglas, J., concurring) (asserting that Court did not decide whether licensee was state actor); id. at 172-81 (Brennan, J., dissenting) (arguing that licensee is state actor).
18. See Fiss, supra note 4, at ch. 1; Fiss, supra note 1, at chs. 1 & 2.
19. See Buckley v. Valeo, 424 U.S. 1, 17-18 (1976). Making a distinction between expenditures and contributions, the Court has limited (but not totally prohibited) the regulation of contributions. See id. at 20-22.
20. These two areas are tied together by the fact that the importance of campaign spending is largely dictated by the need to purchase radio and television ads in political campaigns and the high cost of such political advertising.
21. See John Ely, Democracy and Distrust 106 (1980); Schauer, supra note 7, at 5; Lee C. Bollinger, The End of New York Times v. Sullivan: Reflections on Masson v. New Yorker Magazine, 1991 Sup. Ct. Rev. 1, 5; Geoffrey Stone, Autonomy and Distrust, 64 U. Colo. L. Rev. 1171, 1171 (1993); see also John Stuart Mill, On Liberty 10 (Prometheus ed. 1986) ("'[T]he tyranny of the majority' is now generally included among the evils against which society requires to be on guard."). The distrust argument is reinforced by the influential work of Charles Lindblom, who Fiss expressly relied upon, see Fiss, supra note 1, at 42-46, to explain why liberals were disinclined to defer to legislative and administrative regulation of free speech. See Charles E. Lindblom, Politics and Markets: The World's Political-Economic Systems 201-21 (1977) (arguing that businesses, which are supposed to be subject to the control of the state, in fact control the state).
22. See John Ely, Democracy and Distrust 106 (1980); Schauer, supra note 7, at 5; Lee C. Bollinger, The End of New York Times v. Sullivan: Reflections on Masson v. New Yorker Magazine, 1991 Sup. Ct. Rev. 1, 5; Geoffrey Stone, Autonomy and Distrust, 64 U. Colo. L. Rev. 1171, 1171 (1993); see also John Stuart Mill, On Liberty 10 (Prometheus ed. 1986) ("'[T]he tyranny of the majority' is now generally included among the evils against which society requires to be on guard."). The distrust argument is reinforced by the influential work of Charles Lindblom, who Fiss expressly relied upon, see Fiss, supra note 1, at 42-46, to explain why liberals were disinclined to defer to legislative and administrative regulation of free speech. See Charles E. Lindblom, Politics and Markets: The World's Political-Economic Systems 201-21 (1977) (arguing that businesses, which are supposed to be subject to the control of the state, in fact control the state).
23. See John Ely, Democracy and Distrust 106 (1980); Schauer, supra note 7, at 5; Lee C. Bollinger, The End of New York Times v. Sullivan: Reflections on Masson v. New Yorker Magazine, 1991 Sup. Ct. Rev. 1, 5; Geoffrey Stone, Autonomy and Distrust, 64 U. Colo. L. Rev. 1171, 1171 (1993); see also John Stuart Mill, On Liberty 10 (Prometheus ed. 1986) ("'[T]he tyranny of the majority' is now generally included among the evils against which society requires to be on guard."). The distrust argument is reinforced by the influential work of Charles Lindblom, who Fiss expressly relied upon, see Fiss, supra note 1, at 42-46, to explain why liberals were disinclined to defer to legislative and administrative regulation of free speech. See Charles E. Lindblom, Politics and Markets: The World's Political-Economic Systems 201-21 (1977) (arguing that businesses, which are supposed to be subject to the control of the state, in fact control the state).
24. Furthermore, if conventional views about government control and individual liberty should be drastically altered whenever access to the marketplace of ideas is skewed by social and economic inequalities, see Fiss, supra note 1, at 122, I don't see how the soapbox orator - favored by education and free time - can escape this fate.
25. This is made abundantly clear by his repeated criticism of judicial acquiescence of regulations of free speech and by his repeated express recognition of the risks to free speech of the position he advocates (that government regulation of speech may enrich democracy). See Fiss, supra note 4, passim; Fiss, supra note 1, passim. 19. Fiss, supra note 1, at 37.
26. In First Amendment literature, "autonomy" is not always used in quite this instrumentalist way. See Richard H. Fallon, Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875, 875 (1994) (discussing two alternative conceptions: descriptive autonomy and ascriptive autonomy); Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 213 (1972) (defending the "Millian Principle" of freedom of expression); Susan Brison, The Autonomy Defense of Free Speech (1996) (unpublished manuscript, on file with the Iowa Law Review); see also Mill, supra note 16, at 17 (purporting to "forego any advantage which could be derived to my argument from the idea of abstract right as a thing independent of utility").
27. In First Amendment literature, "autonomy" is not always used in quite this instrumentalist way. See Richard H. Fallon, Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875, 875 (1994) (discussing two alternative conceptions: descriptive autonomy and ascriptive autonomy); Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 213 (1972) (defending the "Millian Principle" of freedom of expression); Susan Brison, The Autonomy Defense of Free Speech (1996) (unpublished manuscript, on file with the Iowa Law Review); see also Mill, supra note 16, at 17 (purporting to "forego any advantage which could be derived to my argument from the idea of abstract right as a thing independent of utility").
28. In First Amendment literature, "autonomy" is not always used in quite this instrumentalist way. See Richard H. Fallon, Jr., Two Senses of Autonomy, 46 Stan. L. Rev. 875, 875 (1994) (discussing two alternative conceptions: descriptive autonomy and ascriptive autonomy); Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 213 (1972) (defending the "Millian Principle" of freedom of expression); Susan Brison, The Autonomy Defense of Free Speech (1996) (unpublished manuscript, on file with the Iowa Law Review); see also Mill, supra note 16, at 17 (purporting to "forego any advantage which could be derived to my argument from the idea of abstract right as a thing independent of utility").
29. Fiss, supra note 1, at 38.
30. For example, he suggests that "offices of public advocacy" in administrative agencies could be created, that open-hearing requirements could be established, and that more power could be allocated to state agencies that are more independent (by which he seems to mean courts). Id. at 43-44.
31. Id. at 30.
32. Id. at 46.
33. Chapter Three was first published as Owen M. Fiss, Silence on the Street Corner, 24 Suffolk U. L. Rev. 1 (1992), reprinted in Public Values in Constitutional Law (Stephen Gottlieb ed., 1993).
34. Chapter Three was first published as Owen M. Fiss, Silence on the Street Corner, 24 Suffolk U. L. Rev. 1 (1992), reprinted in Public Values in Constitutional Law (Stephen Gottlieb ed., 1993).
35. Chapter Seven was first published as Free Speech and the Prior Restraint Doctrine: The Pentagon Papers Case, in The Supreme Court and Human Rights 49 (Burke Marshall ed., 1982).
36. 466 U.S. 789 (1984).
37. 497 U.S. 720 (1990).
38. City Council, 466 U.S. at 791 n.1, 817.
39. Kokinda, 497 U.S. at 724.
40. Schneider v. State, 308 U.S. 147, 165 (1939).
41. Id.
42. Kokinda, 497 U.S. at 729-30; City Council, 466 U.S. at 813-15.
43. Fiss, supra note 1, at 53.
44. See id. at 59-64. Subsequent cases, in which Supreme Court Justices have been divided in complex ways, have left open the question whether narrow rigidity will ultimately triumph over a more speech-protective public forum doctrine. See Denver Area Educ. Tele-Communications Consortium, Inc. v. FCC, 116 S. Ct. 2374, 2409-15 (1996) (Kennedy, J., concurring and dissenting); id. at 2426-29 (Thomas, J., concurring and dissenting); Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 693 (1992) (Kennedy, J., concurring and dissenting); id. at 709 (Souter, J., concurring and dissenting); id. at 685 (O'Connor, J., concurring).
45. New York Times Co. v. United States, 403 U.S. 713 (1971).
46. See id. at 714.
47. See id. at 727-30 (Stewart, J., concurring); id. at 730-40 (White, J., concurring); id. at 740-48 (Marshall, J., concurring); id. at 748-52 (Burger, J., dissenting); id. at 752-59 (Harlan, J., dissenting); id at 759-63 (Blackmun, J., dissenting).
48. Cf. C. Edwin Baker, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Regulations, 78 Nw. U. L. Rev. 937, 948 (1983) (under the widely followed balancing approach, First Amendment activity has not been given priority in what have been treated as questions involving the allocation of resources in the use of public forums); David Goldberg, Judicial Scrutiny in Public Forum Cases: Misplaced Trust in the Judgment of Public Officials, 32 Buff. L. Rev. 175, passim (1983) (public forum regulators devalue speech interests and overvalue the adversely affected state and local interests).
49. Cf. C. Edwin Baker, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Regulations, 78 Nw. U. L. Rev. 937, 948 (1983) (under the widely followed balancing approach, First Amendment activity has not been given priority in what have been treated as questions involving the allocation of resources in the use of public forums); David Goldberg, Judicial Scrutiny in Public Forum Cases: Misplaced Trust in the Judgment of Public Officials, 32 Buff. L. Rev. 175, passim (1983) (public forum regulators devalue speech interests and overvalue the adversely affected state and local interests).
50. Chapter Five was first published as Owen M. Fiss, State Activism and State Censorship, 100 Yale L.J. 2087 (1991). Much of this same material appears in Fiss, supra note 4, at ch. 2.
51. Chapter Four was first published as Owen M. Fiss, Freedom and Feminism, 80 Geo. L.J. 2041 (1992). See also Fiss, supra note 4, at ch. 1.
52. Chapter Six was first published as Owen M. Fiss, The Supreme Court and the Problem of Hate Speech, 24 Cap. U. L. Rev. 281 (1995). See also Fiss, supra note 4, at ch. 1.
53. See Fiss, supra note 1, at 94-95.
54. See id. at 100.
55. See id. at 99-102. As he repeatedly acknowledges, Professor Fiss disagrees with much of the discrimination law and his argument here tends to take the form of distinguishing and rejecting the discrimination law analogy. See id. at 172 n.24 and accompanying text (citing discrimination case law); id. at 172 n.26 and accompanying text (citing Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff 107 (1976)).
56. In stressing effect rather than criterion, Professor Fiss is advocating the approach that he has advocated and the Supreme Court has rejected in the discrimination context See, e.g., Fiss, supra note 1, at 172 n.24 (comparing school desegregation cases with discrimination cases in the non-school context); id. at 172 n.26 (citing Fiss, supra note 45); id. at 173 n.31 (citing discrimination cases and articles in the areas of employment and education).
57. Fiss, supra note 1, at 101.
58. Id. at 102 (quoting New York Times Co. v. Sullivan, 876 U.S. 254, 270 (1964)).
59. Id.
60. To put my own strongly stated view in perspective, it should be noted that in his introduction to this chapter, Fiss observes, "Prior to publication, I shared a draft of this essay with a group of lawyers and philosophers - known as SELF (Society of Ethical and Legal Philosophy)" and "almost all the essays in this book have benefited from discussions with that group." Id. at 90. Fiss added that this chapter "provoked one member of the group" to publish a critical article. See Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. Chi. L. Rev. 225, 226 (1992) (stating the "error Fiss commits . . . is to mistake an effect of the [First Amendment] principle for the principle itself").
61. See Fiss, supra note 3, at 44.
62. See Fiss, supra note 3, at 105-06. To support his position that courts may have the power and duty to require the preservation and even an increase of funding in this context, Professor Fiss relies in part on the Supreme Court's 1990 Kansas City desegregation opinion, Missouri v. Jenkins 495 U.S. 33 (1990). See Fiss, supra note 1, at 106 n.37. That reliance seems misplaced both because the Court's entire discussion of funding concerned the power of federal courts to remedy a previously established constitutional violation, see Missouri v. Jenkins, 495 U.S. 33 (1990) (passim); id. at 58 (Kennedy, J., concurring) (passim), and because the Court subsequently reversed the funding order of the federal district court on the ground that the order was not commensurate with the violation. See Missouri v. Jenkins, 115 S. Ct. 2038, 2055 (1995).
63. 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986).
64. In this respect, it is arguable that the Professor Fiss's attempt to distinguish the Supreme Court's R.A.V. decision (discussed infra notes 66-71 and accompanying text) relies on precisely the ground unsuccessfully urged by the dissenting opinion in that case: The legislature could decide that the harm resulting from proscribed material was different in degree or likelihood from comparable harms caused by other unregulated materials.
65. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 468, 477, 479 (discussing how racism decreases the total amount of speech and effectively silences members of the target group); Catherine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1, 3, 60 (1985) (discussing how pornography robs women of their credibility, making them powerless by effectively silencing them); Michelman, supra note 6, at 296 (discussing how pornography subordinates and silences women); Cass R. Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589, 618 (noting that "the pornography industry is so well-financed, and has such power to condition men and women, that it has the effect of silencing the anti-pornography cause in particular and women in general").
66. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 468, 477, 479 (discussing how racism decreases the total amount of speech and effectively silences members of the target group); Catherine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1, 3, 60 (1985) (discussing how pornography robs women of their credibility, making them powerless by effectively silencing them); Michelman, supra note 6, at 296 (discussing how pornography subordinates and silences women); Cass R. Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589, 618 (noting that "the pornography industry is so well-financed, and has such power to condition men and women, that it has the effect of silencing the anti-pornography cause in particular and women in general").
67. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 468, 477, 479 (discussing how racism decreases the total amount of speech and effectively silences members of the target group); Catherine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1, 3, 60 (1985) (discussing how pornography robs women of their credibility, making them powerless by effectively silencing them); Michelman, supra note 6, at 296 (discussing how pornography subordinates and silences women); Cass R. Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589, 618 (noting that "the pornography industry is so well-financed, and has such power to condition men and women, that it has the effect of silencing the anti-pornography cause in particular and women in general").
68. See Fiss, supra note 1, at 85.
69. Id.
70. Id.
71. Id. at 84-85. In concluding that "this is a matter that can well be trusted to legislative judgment," id. at 86, Professor Fiss cites an article by Professor Frank Michelman. Id. at 168 n.52. But Fiss sounds far more sanguine about turning this area of expressive liberty over to the democratic process than Michelman does in the article cited. See Michelman, supra note 6, at 319 & n.84 (modestly suggesting that judges take an occasional chance of deferring to legislative judgment). On the other hand, Fiss himself seems divided between advocating judicial deference and judicial oversight See infra notes 85-87 and accompanying text.
72. Fiss, supra note 1, at 86.
73. Id.
74. Difficult as the "serious value" issue may be for the courts in applying the obscenity doctrine, compare Pope v. Illinois, 481 U.S. 497, 501 (1987) (holding the "reasonable person" test does not vary from community to community), with id. at 504 (Scalia, J., concurring) (arguing that it is "quite impossible to come to an objective assessment" of literary or artistic value), the assessment contemplated by Fiss would be different in kind as well as in degree.
75. Fiss, supra note 1, at 87. In Chapter Seven, Professor Fiss refers to the Hand test as "one of the most infamous and least protective in the history of the First Amendment" and states with apparent disapproval that this test "made possible the conviction of the Communist leaders in the McCarthy era." Id. at 131.
76. Id. at 87.
77. Id.
78. 505 U.S. 377 (1992).
79. Id. at 396.
80. See Fiss, supra note 1, at 114-16.
81. Id. at 116.
82. Id. at 111 (emphasis added).
83. Id. at 118-19.
84. Id. at 119.
85. Fiss, supra note 1, at 119.
86. Id.
87. Fiss, supra note 4, at 5.
88. Id. at 25.
89. See Fiss, supra note 1, at 122.
90. See supra text accompanying notes 10-15 & 18.
91. See Fiss, supra note 1, at 117-18.
92. See Meiklejohn, supra note 7, at 22-27.
93. Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 26.
94. See Fiss, supra note 1, at 28 (quoting Buckley v. Valeo, 424 U.S. 1, 48-49 (1976)).
95. See Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) ("[T]he concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment . . . .").
96. See Fiss, supra note 1, at 101.
97. See id. at 110, 117-18; Fiss, supra note 4, at 23-24.
98. Fiss, supra note 1, at 86.
99. See id. at 25.
100. See supra text accompanying notes 19-24 (discussing Professor Fiss's preference for the public debate principle).
101. See supra text accompanying notes 48-50, 59-61, 71-74 (discussing Professor Fiss's position that requires the government to favor one side of a public debate).
102. Despite his radical argument that some ideas must not be tolerated because they are wrong and harmful and must be suppressed so that other arguments may be heard, Herbert Marcuse was well aware of the dilemma posed in deciding how to identify those entitled to do the suppressing and deciding what should be suppressed. See Herbert Marcuse, Repressive Tolerance, in A Critique of Pure Tolerance 81, 106 (1969) (stating that the number of decisionmakers would be "a small number indeed"). Professor Fiss's attitude toward Marcuse is unclear. See Fiss, supra note 1, at 16, 26.
103. See Learned Hand, The Bill of Rights 73 (1958).
104. See Stanley Fish, There's No Such Thing As Free Speech and it's a Good Thing, Too 102 (1994) ("'Free speech' is just the name we give to verbal behavior that serves the substantive agendas we wish to advance"); id. at 110 (successful invocation of the First Amendment is "a political victory won by the party that has managed to wrap its agenda in the mantle of free speech").
105. It seems well established that Owen Fiss is no Stanley Fish. See Stanley Fish, Fish v. Fiss, 36 Stan. L. Rev. 1325 (1984).