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

By Owen M. Fiss | Go to book overview
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Introduction

Liberals are at war with themselves. For some time, freedom of speech has held them together, but now it is a source of division and conflict.

During the 1950s, at the height of the Cold War, political forces tried to use the state apparatus to protect the nation from subversion and the threat of communism. The Communist Party of the United States and its leaders were criminally prosecuted and countless citizens linked to the Party were fired from government jobs -- not for any overt act against the state but simply for the advocacy of ideas at odds with the established social order. Liberals denounced such exercises of state power and used the First Amendment and its guarantee of free speech for that purpose. They insisted that the fears that fueled these coercive measures were greatly exaggerated and that these measures threatened to silence forceful criticism of the status quo.

In the 1960s, liberals were again united under the banner of free speech. This time they opposed the efforts of many southern states and localities to suppress the civil rights movement and the many searing protests and demonstrations to which it gave rise. Liberals complained, almost in unison, that state power was being used to quell public criticism and was therefore at odds with the protection of free speech provided in the First Amendment. In taking this stance, they drew upon liberal political theory and its brief on behalf of individual rights and the ideal of the limited state.

Over the last twenty-five years, the First Amendment agenda has changed and the liberal consensus has been shattered. Admittedly, some of the traditional controversies have persisted, and on these issues liberals have held together. One such controversy centers around the Pentagon Papers case of 1971, discussed in Chapter 7 of this book. In that case, the Nixon administration sought to stop the leading newspapers of the country from publishing a classified study of the American effort in Vietnam,

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