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71 Iowa L. Rev. 1405 (1985-1986)
Free Speech and Social Structure

handle is hein.journals/ilr71 and id is 1417 raw text is: Essays Free Speech and Social Structure Owen M. Fiss* Freedom of speech is one of the most remarkable and celebrated aspects of American constitutional law. It helps define who we are as a nation. The principle is rooted in the text of the Constitution itself, but it has been the decisions of the Supreme Court over the last half century or so that have, in my view, nurtured that principle, given it much of its pre- sent shape, and accounts for much of its energy and sweep. These deci- sions have given rise to what Harry Kalven has called a Free Speech Tradition. In speaking of a Tradition, Kalven, and before him, Llewellyn1 and T.S. Eliot2 (talking about the shoulders of giants), aspire to an all-embracing perspective. Everything is included-nothing is left out, not the dissents, not even the decisions overruled. Every encounter between the Court and the first amendment is included. There is, however, a shape or direction or point to the Tradition. It is not an encyclopedia or dictionary, but more in the nature of a shared understanding. Those who speak of a Free Speech Tradition try to see all the decisions and to abstract from them an understanding of what free speech means-what lies at the core and what at the periphery, what lies beyond the protection of the first amendment and what is included, where the law is headed, etc. The whole has a shape. The shape is not fixed for all time, since each new decision or opinion is included within the Tradition and thus contributes to refiguring the meaning of the whole, but the Tradition also acts as a constraining force on present and future decisions. The Tradition is the background against which every judge writes. It defines the issues; provides the resources by which the judge can confront those issues; and also creates the obstacles that must be surmounted. It orients the judge. I believe it is useful to view the free speech decisions of the Supreme Court as a Tradition, and I am also tempted to celebrate that Tradition in much the way that Kalven does. The title of his (still unpublished) * Alexander M. Bickel Professor of Public Law, Yale University. This essay is based on the John F. Murray Lecture, delivered at the University of Iowa College of Law on November 1, 1985. © Owen M. Fiss, 1986. 1. K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960). 2. Eliot, Tradition and the Individual Talent, in SELECTED PROSE OF T.S. ELIOT 37 (1975) (first published 1919). 1405

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