Free Speech and Social Structure
Owen M. Fiss · 2018
8 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) .