March, 2000
Book Review
*859 THE
VALUE OF DISSENT
Dissent, Injustice, and the Meanings of America. By Steven H. Shiffrin.
[FNdd1] Princeton: Princeton University Press, 1999. Pp. 204. $29.95.
Lawrence B. Solum [FNd1]
Copyright © 2000 Cornell
University; Lawrence B. Solum
Introduction: The Failure of Free Speech Theory
Theorizing about the freedom of speech has
been a central enterprise of contemporary legal scholarship. The important contributions to the debate
are simply far too numerous to categorize. [FN1] One ambition of
this theorizing is the production of a comprehensive theory of the freedom of expression, a set of consistent normative
principles that would explain and justify First Amendment doctrine. [FN2] Despite an
outpouring of scholarly effort, the consensus is that free speech theory has
failed to realize this imperial ambition. [FN3] Rather than searching *860 for the
global theory of the First Amendment, constitutional scholars are content to
aim for a local theory; offering partial conceptualizations, local theories
explain, justify, or critique some portion of free speech doctrine without
attempts at global synthesis. [FN4]
Steven Shiffrin's Dissent, Injustice, and
the Meanings of America [FN5] (hereinafter
Dissent) stands squarely in the tradition of modest, localized theorizing about
the freedom of speech. Rather than
attempting to integrate all of free speech doctrine, he focuses on one free
speech value: the value of dissent and its contribution to the illumination of
particular First Amendment problems. [FN6] This compact, densely argued, and
brilliantly insightful book leaves free speech theory far the richer. Shiffrin has important things to say about
flag burning, [FN7] advertising, [FN8] and racist speech.
[FN9] Moreover, Dissent addresses a topic that is
all too often neglected by free speech theorists: the methods by which
institutions other than courts, such as schools and the media, can promote the
values of free speech. [FN10] Throughout,
Dissent never loses *861 sight of its central thesis: The value of
dissent is essential to understanding the freedom of speech. [FN11]
If free speech theories should not be too
ambitious, then neither should they be too modest. If Dissent has a flaw, it is that Shiffrin does not push his
argument far enough to weave a tapestry with sufficient breadth and depth to
allow us to see the relationship between a local theory of dissent and the
whole landscape of free speech jurisprudence.
At times, the threads of argument developed in Dissent seem truncated,
leaving the reader uncertain as to whether a consistent vision exists. [FN12] Dissent would have been a more satisfying
work if Shiffrin had developed the central theoretical concepts in more depth
and then applied them to a broader range of particular problems in free speech
theory. Notwithstanding this criticism,
no one who gives Dissent the attention it deserves can fail to appreciate the
strong vision of social justice and deep knowledge of free speech doctrine that
permeate Shiffrin's fine book.
Part I of this Review provides a brief
exposition of some of Shiffrin's main points in Dissent. In Part II, I offer a critical analysis of
Dissent's central theory that the promotion and protection of dissent are
central functions of the freedom of speech.
In order to clarify Shiffrin's central claims, I will compare his
analysis with John Stuart Mill's famous defense of the liberty of expression in
his essay On Liberty. [FN13] Part III concludes
with some observations about the lessons to be learned from Shiffrin's successes and failures.
*862 I
Meaning, Dissent, Injustice
Dissent, Injustice, and the Meanings of
America continues a project that has been a central focus of Shiffrin's
scholarly career. As in his prior book,
The First Amendment, Democracy, and Romance, [FN14] Shiffrin's aim in Dissent is to explain the special
relationship between the First Amendment right to free speech and the social
role of dissent in a democratic society.
Dissent is a dense book that addresses many
topics, with intricate and nuanced examinations of Supreme Court opinions on a
variety of topics. This summary cannot
hope to replicate Shiffrin's fine work.
My aim is rather to give a sense of the broad themes, with an occasional
focus on particular arguments by way of illustration. My explication of Dissent's argument begins with some preliminary
points concerning the definition and value of dissent and then proceeds to
survey Shiffrin's treatment of several problems in First Amendment doctrine.
A. The
Meaning and Value of Dissent
Dissent is the key concept in Dissent,
Injustice, and the Meanings of America. It is therefore surprising that Shiffrin
gives only scant attention to its meaning.
He defines dissent as "speech that criticizes existing customs,
habits, traditions, institutions, or authorities." [FN15] In his discussion of racist speech, Shiffrin
characterizes dissent as a "popularly disdained view[ ]," [FN16] and in his discussion of commercial speech, he suggests
that tobacco advertising is not dissent, because it "is no part of a
social practice that challenges unjust hierarchies with the prospect of
promoting progressive change." [FN17] These definitions may not be consistent, a
theme that I will take up later in this Review. [FN18]
In order to better understand this theory,
we need to remind ourselves of the foundation that Shiffrin lays in his
important work on free speech theory that preceded Dissent. Why is dissent valuable? The First Amendment, Democracy, and Romance,
identifies a set of interlocking values that the promotion and protection of
dissent serve. Dissent fosters
community or "engaged association" rather than atomistic
individualism, because "[d]issenters seek converts and colleagues." [FN19] Indeed, dissenters are critics of the
excesses of individualistic materialism *863 that permeates American
culture. [FN20] Moreover, dissent
fosters the emergence of truth. [FN21] Shiffrin makes
this claim despite his acknowledgement that "[d] issenters are often
wrong." [FN22] Central to his
argument is the notion that truth doesnot necessarily prevail in the
marketplace of ideas, and therefore that
active promotion of dissent may be necessary to create "a robust,
burgeoning marketplace." [FN23] But the greatest value of dissent is
"that the sponsoring and protection of dissent generally have progressive
implications" for social change because "[d]issent communicates the
fears, hopes, and aspirations of the less powerful to those in power." [FN24]
B.
Identity, Culture, and the Freedom of Speech
Part I of Dissent, entitled "The Meanings
of America," argues that the meaning of First Amendment freedom of speech
is intertwined with cultural struggles and identity politics: "[T]he First
Amendment itself is at the heart of America's cultural struggle." [FN25] The role that the constitutional right to
free speech plays in struggles over American culture is illustrated by debates
over government funding for so-called blasphemous art and by the flag burning
cases. Shiffrin points to Justice
Brennan's opinion in Texas v. Johnson, [FN26] the leading flag
burning case, for its expression of "the 'bedrock principle . . . that the
Government may not prohibit the expression of an idea simply because society
finds the idea offensive or disagreeable." ' [FN27] Shiffrin zeros in
on the key notion of Brennan's principle: Freedom of speech protects ideas, [FN28] a doctrinal legacy of Justice Holmes's
marketplace-of-ideas theory. [FN29] But, Shiffrin argues, the marketplace is
flawed: "What emerges in the market might better be viewed as a
testimonial to power than as a reflection of
truth." [FN30] The real point of
the flag burning case is symbolic: "[T]he American community is committed
to the notion that dissent should be protected, and the First Amendment is the
legal manifestation of that cultural commitment." [FN31]
Shiffrin continues his investigation of the
meanings of America by examining the Supreme Court's commercial speech
jurisprudence *864[ FN32] and in particular its decision in 44 Liquormart, Inc. v.
Rhode Island, [FN33] which struck
down Rhode Island's prohibition of liquor price advertising. [FN34] Shiffrin argues against such protection, stating that
"[c]ommercial advertisers are not dissenters." [FN35] Or are they? Shiffrin recognizes the complication that
"tobacco advertising has some elements of dissent," because the
products advertised are "socially stigmatized." [FN36] However, he
contends that because "tobacco advertising misses vital elements
ordinarily associated with our valuing of dissent," [FN37] it "is no part of a social practice that challenges
unjust hierarchies with the prospect of promoting progressive change." [FN38]
But why does tobacco advertising not promote
progressive social change? One might
argue that prohibitions on tobacco advertising are unjust restrictions on
individual freedom, because they violate John Stuart Mill's famous liberty
principle: "That the only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to
prevent harm to others. His own good, either physical or moral, is
not a sufficient warrant." [FN39] Of course, Mill's
theory is controversial, [FN40] and he may well
be wrong. In fact, the prevailing
opinion surely is that he is wrong, although there are dissenters. [FN41] But trying to
settle such controversies as a matter of First Amendment theory seems
strange. It seems odd to claim that the
question of whether tobacco advertising should receive First Amendment
protection hinges on whether a libertarian approach to harmful substances
represents progressive social change. [FN42]
*865 Shiffrin concludes his
investigation of the meanings of America with an illuminating discussion of
racist speech and the Supreme Court's decision in R.A.V. v. City of St. Paul. [FN43] By taking up this topic, Shiffrin fills a
noted gap in his prior work on dissent and the freedom of speech. [FN44] He contends that
"the argument that First Amendment values . . . dictate that racist speech
cannot be regulated is ultimately indefensible." [FN45] Shiffrin argues
that Justice Scalia's opinion in R.A.V. is ultimately motivated by "a
particular vision of America--as a nation that spurns paternalism and tolerates
different points of view, however hateful." [FN46] Scalia's proposed
alternative to the St. Paul ordinance that targeted only fighting words based
on race, creed, color, or gender was a content-neutral fighting-words
ordinance, which lacks "symbolic power." [FN47]
Shiffrin proposes that we tell a different story about the St. Paul
ordinance--one that focuses on dissent.
A dissent-based approach to hate speech, however, is complicated. Shiffrin recognizes the difficulties:
Because both aggressors and victims [of racist speech] can be
characterized, with some accuracy, as dissenters, the dissent story underscores
the difficulty of the First Amendment status of racist speech. On the one hand, the dissent perspective
seeks to protect those with popularly disdained views and, in an important
respect, this includes those who publicly express racist views. On the other hand, the dissent perspective
seeks to assure that those who are out of power or lower in a hierarchy have
the means to protest their status and to combat the inevitable abuses of power
by higher-ups. A regime that is blind
to the importance of assuring that disadvantaged groups are not intimidated
will contain, as its status quo, substantial corruption and abuse. [FN48]
Shiffrin then suggests that this conflict
should be resolved against First Amendment protection for racist speech. [FN49] Because racist speech denies the equality of
all persons, it "makes a negative 'contribution' to public political
dialogue." [FN50] Although racist speech alerts us to the
existence of racism in society, "the best test of truth is the system's *866
foundational premise of equality, not whether racist speech can emerge
triumphant in the marketplace of ideas." [FN51]
C. Injustice and the Role of Dissent
The second part of Dissent focuses on the
role of dissent in combating injustice.
Shiffrin opens with the following claim: "Free speech theory should
be taken beyond protecting or tolerating dissent: the First Amendment should be
taken to reflect a constitutional commitment to promoting dissent." [FN52] Why? The answer is that "dissent is
necessary to combat injustice." [FN53] Injustice is the
ordinary condition of human societies, because those with power tend to protect
their privileges. [FN54] Shiffrin explains that "[d] issent
attacks existing customs, habits, traditions, institutions, and
authorities," and "[i]t spies injustice and brings it to light."
[FN55]
Shiffrin's abstract statement of these
claims leaves many important questions outside the scope of his inquiry. What conception of justice is being
assumed? How is that conception
justified? What social theory leads to
the conclusion that dissent can be efficacious in combating injustice? A fuller telling of Shiffrin's First
Amendment story would encompass these questions, but Dissent elides them.
1. Dissent and Political Liberalism
Shiffrin does make one significant foray
into philosophical theories of justice in support of his position. He argues that fostering dissent is
consistent with the deep principles of John Rawls's Political Liberalism, [FN56] despite some
evidence to the contrary in Rawls's own statement of his theory. [FN57] This argument is
worth examining in depth, because it reveals something of the deep structure of
Shiffrin's own views.
In Political Liberalism, Rawls addresses the
question of stability in a just society. [FN58] This question
arises because a just society, with liberty of conscience and with freedom of
speech and association, will be characterized by reasonable pluralism. [FN59] In other words, a
just society will include citizens who affirm a variety of comprehensive moral
and philosophical doctrines. For
example, some citizens might affirm a variety of religious perspectives,
philosophical doctrines such as utilitarianism *867 or Kantianism, and
other viewpoints. How can such a
pluralist society be stable? Would the various groups not contend with one
another, each group seeking to impose its own comprehensive views on the
others? Rawls's answer is the notion of
an "overlapping consensus," whereby stability is achieved when each
group affirms the basic principles of justice from its own comprehensive point
of view. [FN60] Catholics might
affirm principles of justice from within a natural law tradition, while
Kantians might affirm the same principles on the basis of their contribution to
individual autonomy.
With this background in mind, consider
Shiffrin's argument. Shiffrin claims
that if Rawls were to address the question, [FN61] he would endorse a constitutional theory that encourages
dissent but "might confine such encouragement
to a narrow conception of political injustice." [FN62] Some explanation
is in order here. Rawls's theory of
justice is "narrow," to use Shiffrin's term, in the sense that Rawls
confines it to the topic of justice and the realm of the political. Rawls does not address deep questions about
the ultimate nature of the good, the truth of religion, and so forth. If Rawls's theory were to take a stand on
such issues, it would go beyond "public reason" [FN63] and hence violate "the liberal principle of
legitimacy," [FN64] which states that "our exercise of political power is
proper and hence justifiable only when it is exercised in accordance with a
constitution the essentials of which all citizens may reasonably be expected to
endorse in the light of principles and ideals acceptable to them as reasonable
and rational." [FN65]
A theory of justice that rested on a
comprehensive doctrine would be regarded as illegitimate by those whose deepest
beliefs were incompatible with that doctrine.
For example, we could not expect a religious citizen to endorse basic
principles of justice on the basis of a comprehensive secular doctrine that
denies the existence of God. A similar
principle operates with respect to the use of state power to inculcate
particular belief systems. A Rawlsian
state could not use the public schools to favor any particular comprehensive
doctrine, whether it be religious or secular.
The public schools could, however, be used to reinforce the public
values of equality, tolerance, and so forth. Shiffrin disagrees with Rawls at this point:
*868 Rawls would not permit the state
to use its educational process or other means to promote citizens who prize
autonomous decision making. On Rawls's
understanding, this would constitute endorsement of a comprehensive conception
of the good, which a just and stable state is not permitted to do. If one
believes, however, that injustice is a permanent feature of even democratic
societies, encouraging autonomous decision makers is a prescription for justice
and its maintenance, not an endorsement of a comprehensive conception of the
good. [FN66]
Quite a lot is packed into this brief
passage, and careful explication is required if we are to get at the heart of
Shiffrin's disagreement with Rawls.
Initially, we must discuss a minor
difference between the basic goals of Shiffrin and Rawls. Rawls's enterprise is an exercise in
developing an "ideal theory"--principles of justice to regulate a
society which would comply with them. [FN67] Shiffrin's work
clearly addresses problems of nonideal theory: the problems of justice that
arise in a society that is not in compliance with the requirements of
justice. To some extent, the
disagreement between Shiffrin and Rawls may stem from this difference in aim.
This minor point about ideal theory,
however, does not capture the most significant disagreement between Rawls and
Shiffrin. Shiffrin wants the state to
promote dissent as a way of life. For
example, he wants the educational system to
encourage the formation of citizens who prize autonomy as a fundamental value. [FN68] Rawls also endorses autonomy as a value, but
the autonomy that plays a role in Rawlsian theory is political autonomy and not
ethical autonomy. Rawls explains:
Here I stress that full autonomy is achieved
by citizens: it is a political and not an ethical value. By that I mean that it is realized in public
life by affirming the political principles of justice and enjoying the
protections of the basic rights and liberties; it is also realized by
participating in society's public affairs and sharing in its collective
self-determination over time. This full
autonomy of political life must be distinguished from the ethical values of
autonomy and individuality, which may apply to the whole of life, both social
and individual, as expressed by the comprehensive liberalisms of Kant and
Mill. Justice as fairness emphasizes
this contrast: it affirms political autonomy for all but leaves the weight of
ethical autonomy to be decided by citizens severally in light of their
comprehensive doctrines. [FN69]
*869 What then is the nature of the
disagreement between Shiffrin and Rawls?
Pinning Shiffrin down on this score is not easy.
Perhaps Shiffrin means to endorse
comprehensive liberalism as a matter of ethical theory. Under this interpretation, Shiffrin would be
stressing the role of dissent in promoting individual self-development and
ethical community. If so, then his view of justice is fundamentally at odds with
Rawls's view. Perhaps Shiffrin takes
political justice as his goal but disagrees with Rawls about the means for
achieving it. Shiffrin may believe that
a just society can exist only if the state promotes comprehensive
liberalism. Why might Shiffrin believe
this? One possibility is that, in
Shiffrin's view, only ethically autonomous individuals are capable of making
the arguments and taking the actions that will promote social justice. If this interpretation is correct, then a
major gap exists in Shiffrin's argument, because he does not provide any
backing for this ambitious claim.
2. Education and Dissent
One of the most interesting and attractive
features of Dissent is closely related to Shiffrin's encounter with Rawls. Shiffrin argues that "[a]ny society
committed to encouraging dissent must begin its encouragement in its system of
education." [FN70] Current educational practice, Shiffrin
claims, encourages conformity and not dissent. [FN71] The pledge of
allegiance to the flag and textbook definitions of good citizenship are
evidence that schools "give lip service to" autonomy and dissent, but
do not give them real emphasis. [FN72] Shiffrin suggests that schools should
require courses in argument and debate and should incorporate skills in
critical assessment of the media. [FN73] Students should be taught to identify and
challenge injustice in their own
communities. [FN74] Besides education,
Shiffrin targets the practice of journalism and access to the media. [FN75]
We should surely applaud Shiffrin's move
beyond legal doctrine to the institutions that shape public culture. If anything, Shiffrin should have devoted
even more attention to these topics. As
a practical matter, how can we accomplish institutional reform given Shiffrin's
views about the entrenched hierarchy of those in power? At first blush, to hope that the public
schools will train students to attack injustice in their local communities
seems utopian. Whereas judges, and
hence free speech doctrine, are at least to some degree insulated *870
from political pressure, the same cannot be said of local school boards. If encouraging dissent requires the
cooperation of political institutions, then we need to know more about the
politics of dissent. How can dissent,
which challenges existing institutions, become welcome and even promoted by
them? Shiffrin seems to avoid questions
about the political practicality of his positions, but we cannot ignore such a
practical agenda if we are engaged in nonideal theory--the enterprise of
discerning the requirements of justice under real world conditions in which
institutions and individuals frequently act contrary to the requirements of
justice.
3. Political Reality
Shiffrin does take up questions about
political realism in the final chapter of
Dissent. [FN76] He engages Frederick Schauer's argument that
"the commitment to free speech . . . tilts against those out of
power." [FN77] Schauer's
argument, which Shiffrin dubs the "market capture thesis," contains
three assumptions: (1) "the market is controlled by [forces inimical to
progressive change], (2) the free speech principle is a laissez- faire
principle, and (3) the free speech principle is harmful to [progressive social
change]." [FN78] The upshot of Schauer's argument is that
liberal support for freedom of speech is actually counterproductive. The limits that free speech jurisprudence
imposes on campaign finance reform provide at least some support for Schauer's
position.
Shiffrin disagrees with Schauer about the
details. For example, Shiffrin argues
that political support for free speech is stronger today than ever and that
free speech doctrine, as exemplified by the flag burning cases, supports
dissent more. [FN79] But the central focus of Shiffrin's critique
is the notion that the free speech principle is a laissez-faire principle. [FN80] Here Shiffrin reiterates his opposition to the
marketplace-of-ideas metaphor; [FN81] because the market fails, the free speech principle should
emphasize the promotion of dissent. [FN82] Shiffrin concedes that a conservative
Supreme Court may interpret the First Amendment in ways that do not favor the
left, but insists that freedom of speech "is an important cultural and
political force of its own wholly apart from the Court." [FN83] For example, free speech values *871 can
foster grass-roots movements, such as the Free Speech Movement at Berkeley. [FN84]
Surely, Shiffrin's position must contain
some truth. Freedom of speech plays a
role in American political life that goes far beyond the current state of First
Amendment doctrine. It is an ideal that
has the power to move citizens and politicians, even when no threat of judicial
coercion is on the horizon.
Granting this point to Shiffrin, we might
still wonder about the real political efficacy of Shiffrin's dissent-based view
of freedom of speech. Social consensus about the value of the right to free speech
is likely to be strongest if and when the right is understood abstractly and
generally. But when freedom of speech
begins to impinge on important interests and to protect unpopular views, the
political efficacy of the free speech principle is, at the very least, in
doubt. The power of the free speech
principle to inspire grass- roots movements hardly guarantees that such
movements will succeed. Indeed, to the
extent that the dissent-based theory of free speech emphasizes protection for
despised and unpopular views, that theory might undermine, rather than
strengthen, the practical political effectiveness of free speech rhetoric in
enabling progressive political change.
Of course, my armchair speculation on this topic is really no more
convincing than Shiffrin's. My point is
simply that such armchair speculation may not be sufficient to make a
convincing case one way or the other.
II
The Value of Dissent
What is the value of dissent? One of Dissent's central contributions to
free speech theory is to lay this question squarely on the table. In the course of developing his answer to
this question, Shiffrin substantially contributes to our understanding of the role
of dissent in the emergence of truth.
His penetrating criticisms of the marketplace-of-ideas theory should
forever change the way that theory is understood.
A. What Is
Dissent?
At this point, I will take up the question
that I put aside above. What is
dissent? Shiffrin offers a number of
different, perhaps conflicting, formulations. [FN85] Initially, he
defines dissent as "speech that criticizes existing customs, habits,
traditions, institutions, or authorities." [FN86] Another definition
focuses on the popular attitudes towards *872 the view contained in the
speech: "[T]he dissent perspective seeks to protect those with popularly disdained
views . . . ." [FN87] Finally,
Shiffrin defines dissent as "a social practice that challenges unjust
hierarchies with the prospect of promoting progressive change." [FN88] Thus, we have dissent
as criticism of the status quo, dissent as the expression of unpopular views,
and dissent as the promotion of progressive social change.
These three definitions of dissent are not
consistent and are potentially in conflict with one another. For example, speech that criticizes existing
institutions might be popularly acclaimed, or speech that is popularly disdained
might support rather than challenge unjust hierarchies. Of course, the various elements of the
definition of dissent might be brought together in a variety of ways. In order to assess and understand Shiffrin's
argument, we need to investigate his notion of dissent.
Shiffrin might resist this inquiry. Although he has recognized that his readers
may ask, "[W]hat precisely is dissent?," [FN89] he resists the
question. Such a difficult question is
"placed at too high a level of abstraction" [FN90] and mistakenly assumes that dissent "ha[s] an
essence." [FN91] To the extent he
is forced to deal with the question, his approach would be to ask "whether
the values associated with dissent are present" [FN92] with respect to the speech at issue. This approach, of course, is familiar to
students of American law. The realist
critique of formalism is associated with the move from formal, conceptual
analysis to consideration of underlying values or interests. But if this move were taken to its logical
conclusion, it would dissolve Shiffrin's focus on dissent. Instead, we would focus on the role of a
right to freedom of speech in promoting community, truth, and progressive social change--the
values that Shiffrin identifies as the benefits of dissent. *873 If Shiffrin's book is to make
its case, then dissent must be a meaningful concept, one that stands apart from
the values it serves. [FN93]
We might begin with Shiffrin's initial
definition of dissent as "speech
that criticizes existing customs, habits, traditions, institutions, or
authorities." [FN94] We can stipulate
that the term "social practice" includes "existing customs,
habits, traditions, institutions, or authorities," the elements that
Shiffrin includes in his definition. [FN95] An additional step might be to stipulate
that speech counts as criticism of a social practice if it is a claim that a
social practice (1) should be changed, (2) because it (a) violates requirements
of justice, (b) creates bad consequences, or (c) is an inefficacious means of
achieving a desirable social goal. This
stipulation is intended to encompass social criticism regardless of the
underlying normative framework within which the criticism occurs. Thus, a given social practice might be
criticized because it violates the moral rights of persons (a deontological
criticism), because it produces bad consequences, because it does not
efficiently achieve a socially desirable goal (a consequentialist criticism),
or because it has a degrading effect on the character of citizens (a
virtue-centered criticism). Let us call
criticism of social practices "social criticism." This classification allows us to summarize
Shiffrin's initial definition of dissent:
Dissent is speech that engages in social criticism.
How does dissent as social criticism relate
to dissent as an unpopular view? One
can see that sometimes a connection exists between *874 the two. Frequently,
popular public opinion supports existing social practices; as a corollary,
social criticism is frequently unpopular.
This connection, however, is not necessary. Some existing social institutions may be unpopular, and hence
criticism of them may be in accord with popular opinion. The income tax may be unpopular, and
criticism of it may be popular indeed.
At any given point in time, social practices may lag behind popular
opinion, or elite decision makers may ignore popular opinion. Let us assume for a moment then that
Shiffrin would limit the category of dissent to unpopular social criticism.
The connection between unpopular social
criticism and progressive change is also tenuous. Unpopular social criticism comes from both the left and the
right. Feminists and chauvinists, white
racists and people of color, the rich and the poor, all engage in social
criticism. Shiffrin does not, as far as
I can tell, offer an account of "progress," although the gist of his
position is not difficult to discern: progressive change is change in the
direction of justice. Shiffrin's vision
of social justice is concerned with the elimination of unjust discrimination
and the equitable distribution of economic resources and social power. Some unpopular social criticism is progressive in Shiffrin's
sense, and some is anti-progressive.
Shiffrin offers no good reason to believe that unpopular social
criticism is even more likely to be progressive than other categories of
speech. Let us assume, then, that
Shiffrin's concept of dissent is limited to unpopular progressive social
criticism.
Is this category attractive for the basis of
a First Amendment theory? Of course,
what counts as progressive will be controversial. If judges who apply the First Amendment to concrete cases apply
their own standards of justice to determine whether social criticism is
progressive, then the Constitution will only protect unpopular speech with
which judges agree. Moreover, as judges tend to be drawn from an elite and
conservative segment of society, their conceptualization of free speech doctrine
is unlikely to serve an agenda that Shiffrin would count as progressive. If Shiffrin were to insist that free speech
doctrine favor speech that Shiffrin himself considers progressive, it is
unlikely that this theory would find many adherents outside of the group that
concurs with Shiffrin about matters of justice. Others will be tempted to see Shiffrin's theory of the freedom of
speech as unprincipled; [FN96] the speech that
should receive special protection is simply speech with which Shiffrin agrees.
*875 If Shiffrin's definitions of
dissent do not offer a workable theory of freedom of speech, we might do well
to consider his own suggestion to look to
the values served by dissent rather than the concept of dissent. Perhaps by attending to those values, we
will be able to reconstruct a coherent and attractive dissent-based theory of
the freedom of speech.
B. Dissent
and the Marketplace of Ideas
Why is dissent valuable? One tempting answer points to the important
role that dissent has played in overcoming injustice, ranging from the
abolitionists to the civil rights movement, from the suffragettes to women's
liberation, and from the labor movement to the antiwar movement. But Shiffrin wants to avoid this temptation,
because it would transform a dissent-based theory of the freedom of expression
into a conventional marketplace-of-ideas theory. As Mark Tushnet noted in his review of Shiffrin's The First
Amendment, Democracy and Romance, Shiffrin's attempt to link the value of
dissent to its potential for progressive change is difficult to maintain
without collapsing into a marketplace theory:
The difficulty is that Shiffrin needs to
show that the general culture places significant value on dissent per se, but
most of the examples of dissenters that come to mind--Martin Luther King, Jr.,
those who protested the war in Vietnam--are people whose dissent turned out to
be right. These examples do not
establish that the general culture values dissent per se; rather, they
demonstrate the much more modest proposition that the culture values those expressions of dissent that, in the fullness of
time, we now regard to have been correct. One can of course make this
proposition somewhat stronger by noting that, when the dissent occurs, no one
can be sure whether or not time will ultimately reveal its correctness, and,
therefore, we ought to respect dissent today despite the fact that we disagree
with its assertions. So transformed, the proposition appears to be a rather
standard Millian or marketplace defense of free expression as a social process
designed to achieve the best results in conditions of pervasive social
uncertainty. [FN97]
Shiffrin emphatically rejects the notion
that his theory is simply a standard version of the marketplace of ideas. Quite to the contrary, he believes that a
dissent-based theory challenges the basic assumptions of the marketplace model.
[FN98] Is Shiffrin correct? The answer to this question seems to depend
on what one means by the marketplace *876 of ideas. If the marketplace-of-ideas theory implies
that the current dominant opinion must be true because people have accepted it
in the market, then Shiffrin's view is clearly not a marketplace theory. However, if the marketplace-of-ideas theory
has room for the notion that current dominant opinion is false, either because
of a market failure or because a new idea has not yet been accepted in the
market, then Shiffrin's view might be seen as consistent with a marketplace
theory.
Of course, the marketplace of ideas is only
a metaphor. Ideas are not literally bought and sold; no price mechanism
exists. Ideas are "bought" in
the sense that people believe or accept them.
Ideas are "sold" in the sense that people advocate or offer
them for consideration. The notion that
truth is promoted by allowing ideas to contend with one another based on the
assumption that free and fair competition among ideas will yield the truth is
not inconsistent with the notion that, under current social conditions, we do
not have a free and fair market.
Indeed, the marketplace theory itself would predict that, under
conditions of market failure, the truth would not win out. The fundamental
premise that ideas should not be suppressed solely because we believe they are
false does not preclude legislation or free speech doctrine from seeking to
create conditions under which competition among ideas flourishes. We take the marketplace metaphor too
seriously if we assume that a free and fair marketplace of ideas must somehow
duplicate the perfect market of neoclassical economics.
This argument, however, does not imply that
Shiffrin is a marketplace theorist. The
marketplace-of-ideas theory places value on free speech because true ideas
prevail under conditions of free and fair discourse. Should we value dissent for reasons other than the possibility
that dissent expresses true ideas that will facilitate progressive social
change? I will suggest that John Stuart
Mill's defense of the freedom of expression offers support for an affirmative
answer to this question.
C. Mill
and the Value of False Dissent
John Stuart Mill's defense of the freedom of
expression has surely been the most influential statement on the subject in
modern political thought. Quoting
Mill's own summary of the argument in full is useful:
But the peculiar evil of silencing the
expression of an opinion is, that it is robbing the human race; posterity as
well as the existing generation; those who dissent from the opinion, still more
than those who hold it. If the opinion is right, they are deprived of the
opportunity of exchanging error for truth: if wrong, they lose, what *877
is almost as great a benefit, the clearer perception and livelier impression of
truth, produced by its collision with error. [FN99]
Justice Brennan quoted a part of this
passage in his majority opinion in New York Times Co. v. Sullivan, [FN100] and legal
scholars frequently cite it as well. [FN101] At this point, I want to emphasize that Mill
offered two distinct arguments for the freedom of expression. The first argument is a conventional
statement of the marketplace-of-ideas theory: If a censored opinion is true,
then censorship prevents the emergence of the truth. [FN102] The second argument is quite different. Mill argues that even if the censored
opinion is "wrong," those who disagree with it are deprived of a
benefit almost as great as the truth: "the clearer perception and livelier
impression of truth, produced by its
collision with error." [FN103]
Mill's second argument for the freedom of
discussion is one of the most elegant in all of political philosophy:
However unwillingly a person who has a strong
opinion may admit the possibility that his opinion may be false, he ought to be
moved by the consideration that however true it may be, if it is not fully,
frequently, and fearlessly discussed, it will be held as a dead dogma, not a
living truth. [FN104]
Why does Mill affirm this conclusion? First, in the absence of confrontation with
falsehood, truths will be held as mere opinions without supporting reasons. Such beliefs become mere
"prejudice," and "are apt to give way before the slightest
semblance of an argument." [FN105] Mill recognizes
the objection that the grounds for truth could be taught, without allowing for
the expression of dissenting falsehoods.
But this approach is not sufficient, Mill argues, "when we turn . .
. to morals, religion, politics, social relations, and the business of
life." [FN106] With respect to these subjects, "three-
fourths of the arguments for every disputed opinion consist in dispelling the
appearances which favour some opinion different from it." [FN107] Mill's summary
brilliantly expresses the key argument: "He who knows only his own side of
the case, knows little of that." [FN108]
*878 Mill's argument offers Shiffrin
a sound reply to the question that Mark
Tushnet posed: Why should we value dissent that turns out to be erroneous? Because only in the day-to-day confrontation
with error does truth become a living conviction with a firm grip on belief and
a capacity to motivate action. Mill's
two arguments form a complete case for the protection of dissent. When dissent is true or partially true, its
suppression prevents the emergence of the truth. When dissent is false, even completely false, its suppression
clouds the meaning of the truth and drains truth of its force. In either case, we have good reason to value
dissent.
With this point in mind, we can turn back to
the question, What is dissent? Recall
that Shiffrin offered three different definitions of dissent: dissent as an
unpopular view, dissent as social criticism, and dissent as advocacy of
progressive social change. These
definitions are not equivalent, and we must define the relationships among them
if dissent is to be a meaningful concept. A simplistic reading of Shiffrin
might suggest that all three elements must be present for speech to count as
dissent, but this interpretation would be uncharitable as it would yield a
particularly unattractive theory of the freedom of speech. A Millian account of the value of dissent
suggests a formulation that avoids the difficulties of Shiffrin's exposition.
In ordinary language, dissent has several
different meanings. Dissent may simply
indicate disagreement. Whatever
assertion you make, the grammar of English permits me to respond, "I
dissent." Call this first form of
dissent "dissent as
disagreement." "Dissent"
also is used to refer to a minority point of view; for example, we refer to a
judge's minority opinion in a multimember panel as a dissent. Call this second form of dissent
"dissent as minority viewpoint."
Finally, "dissent" sometimes is used in a more restrictive
sense todefine views that a strong social consensus rejects. Those who held religious beliefs that were
in disagreement with the established Church in England or early America were
dissenters in this sense. Call this
third form of dissent "dissent as criticism of established opinion."
Mill's theory of the freedom of expression
allows us to see why each of these three forms of dissent is valuable. Mills theory also enables us to understand
why dissent as criticism of established opinion should receive the most
exacting protection from the courts and why dissent as minority viewpoint needs
more robust protection than mere dissent as disagreement. In Mill's view, all disagreement has value,
because disagreement sharpens our understanding. Any view with which we disagree could turn out to be the truth,
whether a majority or minority holds that view. Although censorship threatens minority and majority views,
minority viewpoints are more likely to be suppressed both by the government in
a majoritarian democracy and by *879 informal social pressures,
irrespective of the form of government.
Finally, dissent as criticism of established opinion is even more in
need of First Amendment protection. Such
speech is likely to be especially valuable.
If the speech is true, it needs
protection in order to be able to challenge and overcome established
views. If it is false, it needs
protection so that the established truth can be more than mere dogma. The confrontation between established truth
and dissenting falsehood is the means by which established truths are deeply
comprehended and given firm foundations.
D.
Pluralism, Liberty of Conscience, and Dissent
The confrontation between Shiffrin and Rawls
points to one final piece in the puzzle about the value of dissent. Recall that Rawls's theory is premised on
"the fact of pluralism"--the fact that a "plurality of
conflicting, and indeed incommensurable, conceptions of the meaning, value and
purpose of human life" exists. [FN109] This pluralism is
a permanent feature of a society committed to freedom of thought and
discussion. It results from what Rawls
calls "the burdens of judgment." [FN110] Rawls argues that disagreement about such
matters, as about the nature of the good or ultimate value, is reasonable given
the difficulties of arriving at a consensus about them. These difficulties include the following:
complex and conflicting evidence, disagreement about what is relevant and about
how to weigh relevant considerations, the underdeterminacy introduced by hard
cases, and the fact that different kinds of normative arguments may exist on
both sides of a moral question. [FN111] The following factor is particularly
important:
To some extent (how great we cannot tell) the way we assess evidence and
weigh moral and political values is shaped by our total experience, our whole
course of life up to now; and our total experiences must always differ. Thus,
in a modern society with its numerous offices and positions, its various
divisions of labor, its many social groups and their ethnic variety, citizens'
total experiences are disparate enough for their judgments to diverge, at least
to some degree, on many if not most cases of any significant complexity. [FN112]
Given the burdens of reason, we should
expect citizens to disagree about many moral and political questions. Thus, the pluralism that characterizes
modern democratic societies is a reasonable pluralism. [FN113]
*880 What is the relevance of
pluralism and the burdens of judgment to our question about the value of
dissent? If we are committed to the
liberty of conscience and the freedom of discussion, then dissent is inevitable
with respect to the normative evaluation of social practice: "customs,
habits, traditions, institutions, or authorities." [FN114] Citizens who disagree about fundamental
matters, such as religion and the nature of the good, will evaluate social
practices. Inevitably, some citizens
will dissent on almost any question of public policy or social mores. [FN115] Given this fact,
it follows that respect for the political autonomy of citizens requires the
toleration of dissent. From the perspective
of political liberalism, dissent is not the
price to be paid for liberty of conscience and freedom of discussion. Rather, dissent is to be celebrated as one
of the great benefits of such freedom.
Dissent is the product of human reason operating under conditions of
freedom. Moreover, as Mill teaches us,
dissent on contestable matters of "morals, religion, politics, social
relations, and the business of life" [FN116] is properly
seen as a great benefit by those who disagree with the dissenters.
Conclusion: Lessons for Free Speech Doctrine
By way of conclusion, I shall examine the
implications of Mill's defense of the freedom of discussion for Shiffrin's
account of hate speech. Recall that
Shiffrin ultimately rejects the notion that racist speech should be protected
as dissent despite the fact that, under current social conditions, racist
speech is frequently the speech of an unpopular minority and hence presents a
dissenting point of view. Although
racists have views that are popularly disdained, Shiffrin maintains that the
law should not protect these views, because they do not promote progressive
social change. [FN117]
*881 We are now in a position to
examine Shiffrin's key arguments against the protection of racist dissent. Shiffrin argues that racist speech makes no
significant contribution to truth: "[T]he best test of truth is the
system's foundational premise of equality, not whether racist speech can emerge
triumphant in the marketplace of
ideas." [FN118] Assuming that Shiffrin's premise is
true--that racist speech is certainly false [FN119]--does it
follow that racist dissent has no value?
Mill would surely argue that it does.
Through confrontation with racist views, we come to have a lively and
deep understanding of the meaning of equality.
If society could suppress all public expression of racist views, the
result would not be to strengthen our conviction in equality but rather to
weaken it. Let us further assume that
racist views are unreasonable and that no fully rational and reasonable person
would affirm them given full information and an opportunity for due
reflection. It does not follow that no
value exists in allowing unreasonable citizens to express their unreasonable
views. Liberty of conscience will
inevitably produce some unreasonable beliefs, and respect for the autonomy of
all citizens requires the freedom to express such beliefs.
None of this implies that hate speech may
not be regulated or that R.A.V. v. City of St. Paul [FN120] was correctly
decided. Even a partial exploration of
these topics is outside the scope of this review, but it is clear that some
racist speech is harassment, that some racist speech does direct injury, and
that some racist speech constitutes coercion and intimidation. My point simply is that we should not ground
our justifications for the regulation of hate speech on premises that would
justify the prohibition of all racist ideas.
We should not lose sight of Shiffrin's fundamental
premise: the value of dissent is incalculably large.
Steven Shiffrin's Dissent, Injustice, and
the Meanings of America is an important book.
It makes important contributions to the development of First Amendment
doctrine and further develops Shiffrin's dissent-based theory of the freedom of
speech. Shiffrin's book surely will
generate discussion, disagreement, and dissent, but even those who reject its
conclusion will see the freedom of speech in new ways. Dissent, Injustice, and the Meanings of
America is a must read for every serious student of the First Amendment.
[FNd1]. Professor of Law and William M. Rains Fellow, Loyola Law
School. B.A. 1981, University of
California, Los Angeles; J.D. 1984, Harvard Law School.
[FNdd1]. Professor of Law, Cornell Law School. B.A. 1963, Loyola Marymount University; M.A.
1964, San Fernando Valley State College; J.D. 1975, Loyola Law School.
[FN1]. See, e.g., C. Edwin Baker, Human Liberty and Freedom of
Speech (1989); Lee C. Bollinger, The
Tolerant Society (1986); Alexander Meiklejohn, Political Freedom (1965);
Frederick Schauer, Free Speech: A Philosophical Enquiry (1982); Cass R.
Sunstein, Democracy and the Problem of Free Speech (1993); Thomas I. Emerson, Toward a General
Theory of the First Amendment, 72 Yale L.J. 877 (1963).
[FN2]. See U.S.
Const. amend. I.
The idea that legal theories can explain and justify legal practice is a
central tenet of Ronald Dworkin's approach to the theory of judicial decision
making. See generally Ronald Dworkin, Taking Rights Seriously 115-18 (1978).
[FN3]. See Edward
J. Eberle, Practical Reason: The Commercial Speech Paradigm, 42 Case W. Res. L.
Rev. 411, 414-15 (1992); Daniel A. Farber &
Philip P. Frickey, Practical Reason and the First Amendment, 34
UCLA L. Rev. 1615, 1615-16 (1987); Steven
Shiffrin, The First Amendment and Economic Regulation: Away from a General
Theory of the First Amendment, 78
Nw. U. L. Rev. 1212, 1212 (1983). Ronald Cass's critique of grand theorizing
about the First Amendment well represents this position:
[N]o single value or interest explains the
speech clause and no simple formula can implement it. The negative approach
also takes the various values not as freestanding goals but as bases for the
concerns that support limitations on government.
The appropriate theoretical effort, on this
view, is not the construction of
"global" models, but the creation of "local"
solutions to particular speech problems and
the linkage of these solutions by broadly applicable principles.
Ronald A.
Cass, The Perils of Positive Thinking: Constitutional Interpretation and
Negative First Amendment Theory, 34
UCLA L. Rev. 1405, 1490 (1987).
[FN4]. To be more precise about the distinction between local
and global theories, we might say that global theories aim to provide a
normative and descriptive account that "fits" and
"justifies" (to use Ronald Dworkin's terminology) a whole domain of
law, such as the whole of free speech doctrine; on the other hand, local
theories aim only to explain and provide normative foundations for some subset
of the domain, like free speech doctrine as it applies to dissent. Dworkin, supra note 2, at 115-18 (explaining
how legal theories aim to "fit" and "justify" legal
doctrine). The ultimate global theory
would fit and justify the law as a whole, reflecting the notion that the law is
or should be treated as a "seamless web." Id. at 115-16; see Ronald
Dworkin, Law's Empire 239-40, 264, 354, 379-91 (1986); Ronald Dworkin, No Right
Answer?, in Law, Morality, and Society 58, 84 (P.M.S. Hacker & J. Raz eds.,
1977).
Particular legal theories lie along a
spectrum from theories that are fully global (taking the law as a whole as
their object) to theories that are strongly local (taking, at the extreme, only
a single application of a particular legal rule as the legal phenomenon to be
explained or justified). Relative to
theories of the law as a whole or theories of all free speech doctrine,
Shiffrin's views can be said to be local; but if compared to theories that
address only a particular aspect of free speech doctrine, Shiffrin's theory
might be said to be global by comparison.
For an example of an approach to free speech doctrine that can be said
to be relatively more localized than Shiffrin's, see Marcy
Strauss, Redefining the Captive Audience Doctrine, 19 Hastings Const. L.Q. 85
(1991).
Different theorists use the distinction
between local and global theories differently, but the sense in which they use
the terms is closely related to common usage in contemporary legal theory. See Cass, supra note 3, at 1490
(distinguishing local and global free speech theories); see also John
Stick, Formalism as the Method of Maximally Coherent Classification, 77 Iowa L.
Rev. 773, 784 (1992) (distinguishing between
global and local theories of tort law); Adrian Vermeule, Judicial History, 108
Yale L.J. 1311, 1350-51 (1999) (distinguishing
between global and local theories of legal history).
[FN5]. Steven H. Shiffrin, Dissent, Injustice, and the Meanings
of America (1999).
[FN6]. See id. at xi.
[FN7]. See id. at 4-18.
[FN8]. See id. at 32-48.
[FN9]. See id. at 49-87.
[FN10]. See id. at 112-20.
[FN11]. See id. at xi-xii.
[FN12]. Dissent offers deep and sophisticated discussions of a
variety of topics, but many of them end without either advocating a position on
the shape that doctrine should take or integrating the discussion into a
coherent view of free speech theory as a whole. For example, the conclusions to the discussions of commercial
speech, see id. at 48, racist speech, see id. at 86-87, and campaign finance
reform, see id. at 120, are more suggestive than programmatic. This approach seems to be a deliberate
choice on Shiffrin's part. In the
conclusion to Chapter Four with respect to the topic of campaign finance reform
Shiffrin writes:
As I have said, I am content to provide this
sketch without further elaboration.
Some readers might have preferred long discussions of these proposals, but most of them have been discussed
pro and con by many others elsewhere.
Many of those readers may nonetheless experience a sense of unease. There frequently is an unstated belief that
if there is a problem, there must be a tidy solution. I wonder how much of that unease is prompted by a desire to
believe that our society is more or less just, or could be with only a few
changes.
Id. at
120.
The acknowledgement of complexity is
admirable, but the unavailability of simple solutions hardly alleviates the
need for the clear and comprehensive articulation of more complex and nuanced
positions. This reader would have felt
less uneasy if Shiffrin had tackled the complexities in detail rather than
waving his hand at discussions "by many others elsewhere."
[FN13]. John Stuart Mill, On Liberty, in On Liberty and Other
Essays (John Gray ed., 1991).
[FN14]. Steven H. Shiffrin, The First Amendment, Democracy, and
Romance (1990).
[FN15]. Shiffrin, supra note 5, at xi.
[FN16]. Id. at 77.
[FN17]. Id. at 42.
[FN18]. See infra Part II.A.
[FN19]. Shiffrin, supra note 14, at 91.
[FN20]. See id. at 93.
[FN21]. See id. at 96.
[FN22]. Id. at 95.
[FN23]. Id.
[FN24]. Id. at 96.
[FN25]. Shiffrin, supra note 5, at 3.
[FN27]. Shiffrin, supra note 5, at 5 (quoting Johnson,
491 U.S. at 414).
[FN28]. Id. at 6.
[FN29]. See Abrams
v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting).
[FN30]. Shiffrin, supra note 5, at 6.
[FN31]. Id. at 18.
[FN32]. See id. at 32-48.
[FN34]. See id.
at 489.
[FN35]. Shiffrin, supra note 5, at 41.
[FN36]. Id.
[FN37]. Id.
[FN38]. Id. at 42.
[FN39]. Mill, supra note 13, at 14. I am setting aside questions regarding second-hand smoke. One Millian approach would be to directly
regulate second- hand smoke, for example, by prohibiting smoking in public
places, in the workplace, and even at home in the presence of children.
[FN40]. Questions about the proper limits of government authority
are among the most controversial in political philosophy, and Mill's views in
particular have been hotly contested, beginning with his contemporary critics
and extending through today. See Benjamin
R. Barber, The Market as Censor: Freedom of Expression in a World of Consumer
Totalism, 29 Ariz. St. L.J. 501, 503 (1997) (discussing
a debate between Mill and James FitzJames Stephen as it has been reflected in a
more contemporary debate between H.L.A. Hart and Lord Devlin); Stephen
Gardbaum, Liberalism, Autonomy, and Moral Conflict, 48 Stan. L. Rev. 385, 393
(1996) (discussing Mill's and Kant's "ideals of autonomy and
individualism" as "paradigmatic examples of controversial
comprehensive conceptions of the good").
[FN41]. See, e.g., Randy E. Barnett, The Structure of Liberty
326 (1998) (advocating a contemporary
libertarian theory of the proper role of government).
[FN42]. I will take up this oddity again in Part II of this
Review.
[FN43]. 505
U.S. 377 (1992); see Shiffrin, supra note 5, at
49.
[FN44]. See Nicholas
Wolfson, Free Speech Theory and Hateful Words, 60 U. Cin. L. Rev. 1, 11 n.49
(1991) (noting that Shiffrin avoided the topic of
hate speech in The First Amendment, Democracy, and Romance).
[FN45]. Shiffrin, supra note 5, at 50.
[FN46]. Id. at 64.
[FN47]. Id. at 65.
[FN48]. Id. at 77.
[FN49]. See id.
[FN50]. Id. at 78.
[FN51]. Id.
[FN52]. Id. at 91.
[FN53]. Id.
[FN54]. See id.
[FN55]. Id. at 93.
[FN56]. John Rawls, Political Liberalism (1996).
[FN57]. See Shiffrin, supra note 5, at 93-95.
[FN58]. See Rawls, supra note 56, at xviii-xix.
[FN59]. See id. at xvii.
[FN60]. See id. at 133-72.
[FN61]. Shiffrin notes that Rawls does not address this question
because, as Rawls explains, it belongs to "'political sociology" '
and not political philosophy. Shiffrin,
supra note 5, at 94 (quoting John Rawls, A Theory of Justice 226-27 (1971));
see Rawls, supra note 56, at 327.
[FN62]. Shiffrin, supra note 5, at 94.
[FN63]. Rawls, supra note 56, at 213-16.
[FN64]. Id. at 217.
[FN65]. Id.
[FN66]. Shiffrin, supra note 5, at 94-95 (footnotes omitted).
[FN67]. Rawls, supra note 56, at 285.
[FN68]. See Shiffrin, supra note 5, at 112-15.
[FN69]. Rawls, supra note 56, at 77-78.
[FN70]. Shiffrin, supra note 5, at 113.
[FN71]. See id.
[FN72]. Id. at 112-13.
[FN73]. See id. at 114.
[FN74]. See id.
[FN75]. See id. at 115-17.
[FN76]. See id. at 121-30.
[FN77]. Id. at 122; see Frederick
Schauer, The Political Incidence of the Free Speech Principle, 64 U. Colo. L.
Rev. 935 (1993).
[FN78]. Shiffrin, supra note 5, at 122. I have reworded Shiffrin's summary of Schauer by substituting "inimical to
progressive social change" for "conservative."
[FN79]. See id. at 125-26.
[FN80]. See id. at 127.
[FN81]. See id. at 127-30.
[FN82]. See id. at 128.
[FN83]. Id. at 129.
[FN84]. See id. at 126.
[FN85]. See supra Part I.A.
[FN86]. Shiffrin, supra note 5, at xi.
[FN87]. Id. at 77.
[FN88]. Id. at 42.
[FN89]. Shiffrin, supra note 14, at 100.
[FN90]. Id.
[FN91]. Id. at 107. To
discern what Shiffrin means here is difficult, because the term
"essence" has a variety of quite distinct senses. Thus, we might say that water has an
essence: that water has a certain microstructure--H sub2 O--is a necessary
property. Or we might say that larks
have certain essential properties, because all normally functioning larks fly
and have certain distinctive colorings.
We might also say that the Dalai Lama has an essence, because his soul
possesses an ineffable mystical quality.
Shiffrin's cavalier assumption that dissent cannot have an essence seems
to play off the third, quasi-mystical, sense of essence. Shiffrin surely is not arguing that dissent
cannot have an essence in the sense that for speech to count as dissent it must
have some set of properties. Shiffrin
might hold the view that all terms in natural languages lack essences in the
sense of either definite criteria for their application or a focal meaning from
which secondary meanings deviate. But
to see how a respectable philosophy of language could incorporate such a view
is difficult.
[FN92]. Id.
[FN93]. Judge Richard Posner's opinion in Herrmann
v. Cencom Cable Assocs., Inc., 999 F.2d 223 (7th Cir. 1993), expresses this point well. Cencom addresses the scope of a claim for the purposes of the
doctrine of res judicata. Posner's
argument stands as a powerful indictment of any attempt to avoid the definition
of a legal category by resorting to direct reference to the values that the
category serves:
We're all for pragmatism, but pragmatism is
not an operational legal standard. Litigants and their lawyers are entitled to
clearer guidance in an area where a false step can result in the forfeiture of
valuable legal rights than generalities about practicality, convenience,
similarities, and expectations can furnish.
It is not wrong to emphasize these as factors bearing on the objectives
of res judicata. Knowledge of
objectives is helpful, often vital, in interpreting and applying rules. But objectives must not be confused with
criteria. Where certainty is at a
premium, sound lawmaking requires the setting forth of clear and definite
criteria rather than a general directive to decide each case in the manner that
will maximize the attainment of the law's objectives. The latter approach, carried to the extreme, would reduce all law
to an admonition to do what's right.
Id. at
226. Posner's point applies with particular
force in the context of freedom of speech.
As in the case of claim preclusion, certainty is a premium in First
Amendment freedom-of-speech interpretation.
A lack of certainty regarding the protection of speech may well result
in a chilling effect, and valuable speech may never be heard when the speaker
cannot be assured a valid First Amendment defense. If the concept of dissent is to guide First Amendment doctrine,
the law should establish definite criteria for what will count as dissent.
[FN94]. Shiffrin, supra note 5, at xi.
[FN95]. Id.
[FN96]. See, e.g., Martin
H. Redish & Howard M. Wasserman, What's Good for General Motors: Corporate
Speech and the Theory of Free Expression, 66 Geo. Wash. L. Rev. 235, 294 (1998) ("The fact that ... Professor Shiffrin would deny
protection to corporate speech while simultaneously claiming to protect
unpopular voices indicates that [his] approach protects not all unpopular views
but only the unpopular views with which ... Professor Shiffrin happen[s] to
agree.").
[FN97]. Mark Tushnet,
The Culture(s) of Free Expression, 76
Cornell L. Rev. 1106, 1111-12 (1991) (book
review) (citation omitted).
[FN98]. See supra notes 28-31 and accompanying text.
[FN99]. Mill, supra note 13, at 21.
[FN100]. 376
U.S. 254, 279 n.19 (1964). Later opinions represent a retreat from this
Millian view. See Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988)
("False statements of fact are particularly valueless ...."); Gertz
v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (
"[T]here is no constitutional value in false statements of fact.").
[FN101]. See, e.g., Bollinger, supra note 1, at 54-55.
[FN102]. See Mill, supra note 13, at 21.
[FN103]. Id.
[FN104]. Id. at 40.
[FN105]. Id. at 41.
[FN106]. Id. at 42.
[FN107]. Id.
[FN108]. Id.
[FN109]. John Rawls, The Idea of an Overlapping Consensus, 7
Oxford J. Legal Stud. 1, 4 (1987); see also Lawrence B. Solum, Faith and
Justice, 39 DePaul L. Rev. 1083, 1087-89 (1990) (affirming Rawls's "fact
of pluralism").
[FN110]. Rawls, supra note 56, at 54.
[FN111]. See id. at 56-57.
[FN112]. Id.
[FN113]. But not all disagreement is reasonable.
[FN114]. Shiffrin, supra note 5, at xi.
[FN115]. Rawls believes that reaching an overlapping consensus regarding
principles of justice is possible. See
Rawls, supra note 56, at 134. Thus, in
a Rawlsian well-ordered society, arguably no dissent on these matters would
exist. Three points should be kept in
mind with respect to this issue. First,
the scope of topics on which reasonable citizens can agree is likely to be
quite narrow, limited to what Rawls calls the "constitutional
essentials." Id. at 137. Second, not every rational member of society
will be "reasonable" in Rawls's sense. Some competent adults will reject the principles of justice.
Rawls's theory requires that this group not be so large as to undermine the
stability of a well-ordered society, but his theory does not require that no
dissent exist on the constitutional essentials. Given Rawls's conception of the burdens of judgment, dissent on
such matters seems inevitable, even in the case of a well-ordered society
considered from the perspective of ideal theory. Third, First Amendment theory is a nonideal theory; that is, a
theory of First Amendment freedom of speech necessarily takes our actual
society as its object. In our society,
no overlapping consensus on principles of justice exists, and given the
conditions of our society and the burdens of judgment, dissent on matters of
justice is likely to be widespread.
[FN116]. Mill, supra note 13, at 42.
[FN117]. See Shiffrin, supra note 5, at 78.
[FN118]. Id.
[FN119]. From the point of view of political liberalism, we might
say that racist speech denies the fundamental equality of citizens and hence is
inconsistent with the premise that all reasonable citizens can reach agreement
through the use of public reason.
END OF
DOCUMENT