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Free Speech In An Open Society
An exploration of the future of free speech argues that freedom of speech is constantly threatened by other social interests, analyzing symbolic and violent dissent and the "clear and present danger" doctrine
429 pages, Hardcover
First published January 1, 1992
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Displaying 1 - 5 of 5 reviews
November 20, 2017
Virtually everyone says they support free speech, but few know what this statement means.
Professor Rodney Smolla endeavors to provide an across-the-board discussion of what freedom of speech means in a democratic, open society such as that protected under the United States Constitution. He begins with a discussion of the philosophic underpinnings of freedom of speech.
Everyone agrees that the primary function of free speech is to protect the expression of ideas, thereby enabling the "marketplace of ideas" to function. (It should be noted that the marketplace of ideas is not limited to explicitly political subjects, but can take in virtually anything requiring thought under its banner.) Insofar as the freedom of speech is applied to protect the marketplace of ideas, it generally is not controversial.
Professor Smolla goes beyond this understanding of freedom of speech to advocate the potentially broader "self-fulfillment" rationale for free speech. Under this view, any form of expression which helps an individual fulfill his or her desires should be protected.
In theory, this view of free speech is broader than the marketplace of ideas. In practice, however, it appears to differ primarily in that it would protect obscenity and pornography, which do not involve the expression of ideas. I have trouble with offering protection to such things, and believe most people would agree with me. When one attempts to apply a philosophic concept such as free speech in a manner that is unmoored to its historical meaning, unintended and undesirable consequences often are the result. and that is what happens here.
Professor Smolla moves on to discuss many of the discrete subjects in which free speech case law has developed. In general, he advocates robust protection for speech, and in general I agree with his views. I do, however, have several objections.
Professor Smolla begins his discussion of so-called "hate speech" with a laundry list of alleged events showing bias against Jews and racial minorities. Since the book was published in 1992, the events mentioned necessarily are dated, the same type of allegations continues through the present day, and at an ever-increasing rate.
Professor Smolla accepts such allegations at face value and obviously sympathizes with the accusers. As events over the past year or two show, the validity of this worldview is questionable at best. Allegations of hate speech typically are of questionable provenance or involve symbols which mean different things to different people. For example, in 2015 alone, a Yale professor was hounded mercilessly because she suggested that students shouldn't get too worked up over each others' Halloween costumes, and the University of Missouri practically fell apart over alleged and likely false incidents concerning offensive remarks allegedly scrawled on a bathroom mirror and an unidentified person driving across campus with a small Confederate flag flying from the antennae on his truck. A small minority has been allowed to weaponize allegations of hatefulness leveled against other people, to the misfortune of us all.
Professor Smolla reaches the right conclusion, advocating strong protection for alleged "hate" speech as he does for other kinds of speech. However, his failure to recognize the true nature of what really goes on prevents him from voicing the full-throated defense that free speech deserves in this context. Alleged hate speech should not merely be protected in spite of its deleterious nature (in the case of true hate speech), but because unscrupulous people use allegations of hatefulness to try to silence legitimate views which contradict their own (often hate-filled) opinions, and this gambit has become all too successful.
Professor Smolla also discusses freedom of speech as applied to public education and public funding for the arts. This subject was prominent in public debate when the book was published in 1992, but seems to have receded in prominence since then. With regard to public libraries and school curricula, Professor Smolla overlooks the point that someone must decide what to include in the library or curriculum. Allegations of censorship in this context usually amount to one person (frequently a librarian or teacher) seeking to use such allegations to override the decision of another person (usually the library or school board) who has the authority and responsibility under local law to make that decision. It is difficult to see such a spat as a true freedom of speech issue; freedom of speech should not be understood to enable a dissatisfied employee to override his or her boss's decisions.
Similarly, with regard to public funding for the arts, Professor Smolla is generally sympathetic to the argument that government should not be permitted to deny public funding to art merely because the art in question is pornographic, offensive to the public, or of low quality as determined by generally accepted standards of taste. Once again, the concept of freedom of speech does not fit well here. No one can claim to have been censored simply because he or she did not receive a public subsidy. Further, not every artist can be funded by the government; the law of limited resources prohibits such munificence. As a result, someone must decide which, if any, art projects to fund with taxpayer money. The claim of a disappointed bidder that his or her free speech rights have been violated amounts to claim that he or she is entitled to trump the decision of the lawfully appointed decision maker, which is a concept that makes no sense.
Near the end of the book, Professor Smolla devotes a chapter to the challenges posed by new technologies. New technologies providing new media for the dissemination of speech, of course, have been arising at least since the development of movable type, or indeed, since the development of writing itself. Applying free speech concepts to new technologies usually is accomplished by looking to existing precedents for guidance, and then modifying such precedents as demanded by the characteristics of the new technology, and need not be difficult or controversial. In at least one way, however, Professor Smolla's discussion may have been prescient. Writing in 1992, Professor Smolla noted that the ongoing development of computer databases may eventually make it so easy to find out so much about virtually anyone that more robust privacy protections will start to look desirable. Although this was written prior to the spread of the internet, it seems to foreshadow the "right to be forgotten" that the European Court of Human Rights has recognized. While I do not necessarily agree with this decision, it is an important subject with reasonable arguments to be made on both sides, and was at least foreshadowed by this book.
Professor Rodney Smolla endeavors to provide an across-the-board discussion of what freedom of speech means in a democratic, open society such as that protected under the United States Constitution. He begins with a discussion of the philosophic underpinnings of freedom of speech.
Everyone agrees that the primary function of free speech is to protect the expression of ideas, thereby enabling the "marketplace of ideas" to function. (It should be noted that the marketplace of ideas is not limited to explicitly political subjects, but can take in virtually anything requiring thought under its banner.) Insofar as the freedom of speech is applied to protect the marketplace of ideas, it generally is not controversial.
Professor Smolla goes beyond this understanding of freedom of speech to advocate the potentially broader "self-fulfillment" rationale for free speech. Under this view, any form of expression which helps an individual fulfill his or her desires should be protected.
In theory, this view of free speech is broader than the marketplace of ideas. In practice, however, it appears to differ primarily in that it would protect obscenity and pornography, which do not involve the expression of ideas. I have trouble with offering protection to such things, and believe most people would agree with me. When one attempts to apply a philosophic concept such as free speech in a manner that is unmoored to its historical meaning, unintended and undesirable consequences often are the result. and that is what happens here.
Professor Smolla moves on to discuss many of the discrete subjects in which free speech case law has developed. In general, he advocates robust protection for speech, and in general I agree with his views. I do, however, have several objections.
Professor Smolla begins his discussion of so-called "hate speech" with a laundry list of alleged events showing bias against Jews and racial minorities. Since the book was published in 1992, the events mentioned necessarily are dated, the same type of allegations continues through the present day, and at an ever-increasing rate.
Professor Smolla accepts such allegations at face value and obviously sympathizes with the accusers. As events over the past year or two show, the validity of this worldview is questionable at best. Allegations of hate speech typically are of questionable provenance or involve symbols which mean different things to different people. For example, in 2015 alone, a Yale professor was hounded mercilessly because she suggested that students shouldn't get too worked up over each others' Halloween costumes, and the University of Missouri practically fell apart over alleged and likely false incidents concerning offensive remarks allegedly scrawled on a bathroom mirror and an unidentified person driving across campus with a small Confederate flag flying from the antennae on his truck. A small minority has been allowed to weaponize allegations of hatefulness leveled against other people, to the misfortune of us all.
Professor Smolla reaches the right conclusion, advocating strong protection for alleged "hate" speech as he does for other kinds of speech. However, his failure to recognize the true nature of what really goes on prevents him from voicing the full-throated defense that free speech deserves in this context. Alleged hate speech should not merely be protected in spite of its deleterious nature (in the case of true hate speech), but because unscrupulous people use allegations of hatefulness to try to silence legitimate views which contradict their own (often hate-filled) opinions, and this gambit has become all too successful.
Professor Smolla also discusses freedom of speech as applied to public education and public funding for the arts. This subject was prominent in public debate when the book was published in 1992, but seems to have receded in prominence since then. With regard to public libraries and school curricula, Professor Smolla overlooks the point that someone must decide what to include in the library or curriculum. Allegations of censorship in this context usually amount to one person (frequently a librarian or teacher) seeking to use such allegations to override the decision of another person (usually the library or school board) who has the authority and responsibility under local law to make that decision. It is difficult to see such a spat as a true freedom of speech issue; freedom of speech should not be understood to enable a dissatisfied employee to override his or her boss's decisions.
Similarly, with regard to public funding for the arts, Professor Smolla is generally sympathetic to the argument that government should not be permitted to deny public funding to art merely because the art in question is pornographic, offensive to the public, or of low quality as determined by generally accepted standards of taste. Once again, the concept of freedom of speech does not fit well here. No one can claim to have been censored simply because he or she did not receive a public subsidy. Further, not every artist can be funded by the government; the law of limited resources prohibits such munificence. As a result, someone must decide which, if any, art projects to fund with taxpayer money. The claim of a disappointed bidder that his or her free speech rights have been violated amounts to claim that he or she is entitled to trump the decision of the lawfully appointed decision maker, which is a concept that makes no sense.
Near the end of the book, Professor Smolla devotes a chapter to the challenges posed by new technologies. New technologies providing new media for the dissemination of speech, of course, have been arising at least since the development of movable type, or indeed, since the development of writing itself. Applying free speech concepts to new technologies usually is accomplished by looking to existing precedents for guidance, and then modifying such precedents as demanded by the characteristics of the new technology, and need not be difficult or controversial. In at least one way, however, Professor Smolla's discussion may have been prescient. Writing in 1992, Professor Smolla noted that the ongoing development of computer databases may eventually make it so easy to find out so much about virtually anyone that more robust privacy protections will start to look desirable. Although this was written prior to the spread of the internet, it seems to foreshadow the "right to be forgotten" that the European Court of Human Rights has recognized. While I do not necessarily agree with this decision, it is an important subject with reasonable arguments to be made on both sides, and was at least foreshadowed by this book.
December 5, 2017
Free Speech In An Open Society (Hardcover)
by Rodney A. Smolla
by Rodney A. Smolla
August 23, 2007
nonfiction,political science,communications,ethics
May 21, 2009
Theorietically, this out-of print book ahould be teaching me about the First Amendment. But it is really slanted toward the author's views.
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September 23, 2010Free Speech in an Open Society by Rodney A. Smolla (1993)
Displaying 1 - 5 of 5 reviews