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

By Owen M. Fiss | Go to book overview
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PROLOGUE

In my article "State Activism and State Censorship" (Chapter 5), I had to cope with an objection raised by a number of liberal theorists about the requirement of state neutrality. For them, the state could satisfy that requirement only by getting out of the business of subsidizing speech activities altogether. Such a withdrawal did not seem to me very neutral, for it would leave speech in the grips of the market. After long discussions with one of my assistants, Jennifer Brown, I introduced the notion of the state as a parliamentarian to explain how the state might make choices among speakers and still be neutral.

In the essay that follows -- delivered as lectures in February 1995 at Capital University Law School and Tulane and published, along with spirited replies, in the fall of 1995 in the Capital University Law Review -- I further explore the notion of the state as parliamentarian. The immediate context is hate speech -- a problem that has received increasing attention in recent years and that, like the problem of pornography, raises important issues about social inequalities and their significance for free speech doctrine.

In depicting the state as a parliamentarian, I seemed to have backed into an idea that was sporadically used by Harry Kalven and, before him, Alexander Meiklejohn. Recently, that idea was forcefully criticized by Robert Post -- alas, another favorite student. His article, Meiklejohn Mistake: On Individual Autonomy and the Reform of Public Discourse, first appeared in 1993 in the University of Colorado Law Reviewand has been reprinted in his Constitutional Domains: Democracy, Community, Management ( 1995). In this essay, I try to respond to Post article, and I make reference to a more extended response by Morris Lipson in 1995 in a Note in the Yale Law Journal.

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