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

By Owen M. Fiss | Go to book overview

PROLOGUE

I began teaching at the University of Chicago in the late 1960s, and I was fortunate enough to develop a close relationship there with one of the leading free speech scholars of the period, Harry Kalven, Jr. See Owen M. Fiss, Kalven's Way, 43 University of Chicago Law Review 4 ( 1975). In the fall of 1974, just after I moved to Yale, Kalven died and left on his desk a huge manuscript that he had begun only a few years earlier Jamie Kalven, Harry's son, then began the almost impossible task of readying this manuscript for publication. For the next decade or so, I worked closely with Jamie on the project. See Editor's Note to Harry Kalven, Jr., A Worthy Tradition ( 1988).

When the process of editing the Kalven manuscript was nearly complete, I turned to the First Amendment itself and began teaching and writing in the field. I soon grew uneasy with Kalven's celebratory mood toward the then prevailing body of decisions on free speech -- a mood that pervaded his book and was aptly captured by its title. I kept wondering why I had such a different reaction to the received tradition. Part of it, I realized, was due to a difference in our dispositions -- Harry always saw the best in things. In time, however, I came to the conclusion that our difference arose primarily from the fact that Harry had premised his analysis on a paradigm that struck me as outmoded: the street corner speaker.

In the essay that follows -- first presented in November 1985 as the John F. Murray Lecture at the University of Iowa College of Law and published the next year in the Iowa Law Review -- I pursued this thought and proposed that we shift the organizing free speech paradigm from the street corner to CBS. Now, a decade later, I find myself confronting the question whether the CBS paradigm itself has been rendered obsolete by the technological revolution that has carried us into cyberspace. See In Search of a New Paradigm, 104 Yale Law Journal 1613 ( 1995).

-8-

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

Table of contents

  • Title Page iii
  • Contents vii
  • Introduction 1
  • 1 - Free Speech And Social Structure 7
  • Prologue 8
  • 2 - Why the State? 31
  • Prologue 32
  • 3 - Silence on The Street Corner 47
  • Prologue 48
  • 4 - Freedom And Feminism 67
  • 5- State Activism And State Censorship 89
  • Prologue 90
  • 6 - The Right Kind Of Neutrality 109
  • Prologue 110
  • 7 - Free Speech And The Prior Restraint Doctrine 121
  • Prologue 122
  • 8 - Building A Free Press 139
  • Prologue 140
  • Notes 159
  • Acknowledgments 181
  • About the Author 183
  • Index 185
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