A Tightrope Act between Freedom and Equality of Speech on the Hungarian Publication of Owen M. Fiss’ Liberalism Divided: Delayed, But Never Too Late

Abstract

In comparison with the standards of US legal literature on the freedom of speech, Fiss’ work could even be called ‘radical’. The essence of his message is that the state — which, on the basis of the power conferred upon it by legislation, is able to regulate the areas of freedom of speech and the media, to oversee compliance with the regulations via the government, the courts and the various authorities and to make corrections, if necessary — can actually be a friend (supporter or promoter) of freedom of speech. This represents a major leap away from the dogma previously prevalent, according to which it is wise to be wary of the state, as the state’s potential oppressive power allows it to limit freedom of speech for no good cause. The state (the government, the authorities and anyone whose actions may be ‘attributed’ to the state) should be kept an eye on at all times, and any steps taken that could inhibit freedom of speech for any reason whatsoever (be they legitimate or morally sound) should be viewed with caution and reservations. That is, any measure capable of restricting freedom of speech to any extent and for whatever reason should be viewed as unacceptable. Obviously there are certain situations — problems generalized in legal provisions — where such a restriction is not impermissible, but the scope of these is very narrow. By contrast, Fiss argues in favor of the role of the state in respect of freedom of speech. The issue is not that Fiss does not recognize the potentially oppressive nature of the state. Instead, he emphasizes those abilities of the state which the previous defenders of free speech have left unnoticed or claimed to be insignificant, namely, the state is able to eliminate the negative, harmful phenomena that arise during the practice of the exercise of freedom of speech. Such harmful phenomena are the result of the unregulated nature of the ‘marketplace of ideas’ or, rather, the prohibition of its regulation.