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29 McGeorge L. Rev. 1 (1997-1998)
The Unruly Character of Politics

handle is hein.journals/mcglr29 and id is 55 raw text is: Essays

The Unruly Character of Politics
Owen M. Fiss*
Every age has its issue and ours may be abortion. It has posed many challenges
to the Supreme Court, above all that of reexamining the long discredited doctrine of
substantive due process. The 1973 ruling in favor of the individual woman's right to
choose to have an abortion sharply divided the Court and over the next two decades
the Court has had to revisit the issue to see whether the initial ruling should be
affirmed, as indeed it has been.'
Beyond that, the Court has had to find a place within the constitutional order for
the losers: To what extent shall those opposed to abortion be allowed to air their
views and keep the controversy alive? Because the pro-life forces have not been
content to advance their cause only through the ballot box or the courts, but have
most decidedly taken to the streets, specifically to picket abortion clinics and the
doctors who work in them, the abortion controversy has also forced the Supreme
Court to probe the limits of the First Amendment and its guarantee of free speech.
This is my subject.
Some commentators have cast the function of the First Amendment in
individualistic terms and portray it as a protection of each person's right to self-
expression. To these theorists, speaking is just another individual activity,
comparable to hiking or working, and like those activities should be free from state
interference unless the state can come forward with a pretty good reason for its
action. This theory does not, however, fully explain the special commitment the
Constitution has toward the protection of speech. A better reason is needed for
*   Sterling Professor of law, Yale University. The idea for this essay first took shape in my free speech
course at Yale in the spring of 1996. I am grateful to the students in that course for helping me to understand the
issues more fully. The following year, one of those students, Benjamin Sachs, worked with me on these issues in
an independent research project and produced an important paper on the subject entitled, Residential Picketing
and the First Amendment. At moments, I do not know where his ideas end and mine begin. Participating in the
faculty lecture series at the McGeorge Law School in January 1997, provided a further occasion to refine my
thoughts, and I wish to thank the students and faculty of McGeorge, especially my good friend Brian K. Landsberg,
for their warm hospitality and spirited discussion. I also wish to acknowledge the contributions to this essay of
Bruce A. Ackerman, Patricia L. Cheng, Paul W. Kahn, Tamarra D. Matthews, and Gregory S. Silbert. Their
comments and criticism helped me enormously.
1.  See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992).

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