BOOKS-ON-LAW/Book Reviews - November 1999; v.2, no.9

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Dissent, Injustice, and the Meanings of America
An Online Exchange with Steven Shiffrin

Contents

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Introductory Comments by the Editors

We are pleased to host the following Q&A online exchange between Professor Steven Shiffrin (Cornell Law & a Books-on-Law Board Member) and

This is our second Q&A online exchange and we welcome the opportunity to advance the cause of freedom of speech by putting a variety of questions -- practical, theoretical, and even challenging -- to Professor Shiffrin concerning his new book, Dissent, Injustice, and the Meanings of America (Princeton, 1999).  Our contributors were invited to read Professor Shiffrin’s latest book and prepare some questions to which the author might reply, or begin to reply.

Our sincere thanks to our questioners for agreeing to participate, without the possibility of follow-up questions -- at least, not on this occasion.   And our special thanks to Professor Shiffrin for sharing his words, without which none of this would have been possible.

By way of some abbreviated publication and biographical information, Professor Shiffrin is the author of The First Amendment, Democracy, and Romance (Harvard University Press, 1990) and the co-author of Constitutional Law: Cases & Questions (West Publishing, 8th ed.) and The First Amendment: Cases-Comments-Questions (West Publishing, 2nd ed.).  He is also the President of the Ithaca City School District Board of Education.

(Professor C. Edwin Baker’s comments on Dissent, Injustice, and the Meanings of America may be found here.)

Now, onto the full exchange -- of which you, too, may be a part.

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The First Amendment in Practice

Strossen:  You have no doubt discussed, and will discuss, your political, philosophical, and theoretical perspectives with many other individuals -- including, I hope, those who share my skepticism about some of your ideas, from my perspective as "an ACLU liberal," to use your phrase.  Therefore, I thought that the most special viewpoint I could offer now reflects my role not as an armchair "ACLU liberal" or anything else, but rather as an activist.

I know that you care deeply about implementing racial justice and other ideals -- not just advocating them, but actually reforming and transforming society and law accordingly.  Therefore, my major area of inquiry has to do with the practical strategies you would advocate for seeking to translate your vision of the First Amendment (and other libertarian, egalitarian, and social-justice ideals) into realities.

Here, then, are three related questions:

i.) What programs would you advocate/implement in terms of education, litigation, and/or legislation?

ii.) Would you support any constitutional amendments to overturn some of the erroneous Supreme Court decisions you criticize?

iii.) Alternatively, would you support a litigation-reform strategy to get the Court to reconsider some of those decisions on its own?

Shiffrin:  I admire much of the litigation work the ACLU has achieved despite an unfavorable judiciary; and the ACLU is well aware that success in protecting civil liberties or in encouraging dissent requires a well-rounded multifaceted strategy.   In my book, I ask what a society would look like that encouraged dissent.  I discuss a range of proposals organized around and designed to meet four conditions: (1) a system of education needs to promote attitudes and teach skills that would assist in creating a substantial body of citizens with the talent and the will to challenge injustice in appropriate circumstances; (2) channels of communication need to be open; (3) legal barriers to dissent need to be held to a minimum; and (4) social and government institutions need to be designed to make information available to those who wish to dissent.

Most of the proposals I offer to meet those conditions can be achieved through legislative reform without litigation or constitutional amendment, but the bulk of the needed reforms and amendments can only be achieved through substantial grassroots organizing and work in the education system.

I spend most of my "activist" time in the education system at the local level (and I do not have the space here to discuss my priorities, successes and failures).  Yet, I think the most crucial issue is organizing people to fight against the extent to which government is responsive to business interests in ways that do not serve the public interest.  Without meaningful campaign finance reform and increased media access we will not have government by the people or for the people.  The former might require a constitutional amendment; some versions of the latter might not, but neither is possible without enormous work at the grassroots level and in the education system.

McMasters:  The chapter on access to the media includes one of the more insightful analyses of the state of the American press that I’ve seen. Your rationale for access is most persuasive.  A couple of questions: One, if the definition of public figure is expanded to lessen the danger of defamation suits for the press, would that have an unintended impact on personal privacy concerns?  Two, does your call for increased access rights for dissenters mean that public libraries and schools could not install filtering software on their computers?

Shiffrin:  If I were running the country, the expansion of the public figure category to encourage and protect dissent by the press and public should not have any substantial impact on personal privacy concerns.  Indeed, I believe public figures should have far greater privacy rights than are afforded in American law.   French and German law may go somewhat too far in protecting the privacy of public figures, but I think they are rightly more sensitive to the dignity of the individual than is manifested in American law.  On the other hand, France and Germany reject New York Times v. Sullivan in the defamation context for public officials; here, my view is that the United States is right in protecting dissent, but the scope of Sullivan should be even broader.  To be sure, if my proposal were adopted, some would be unable to recover in defamation who would have been able to recover before.  I do not think of this as a privacy concern, but a reputation concern.  My proposal would protect reputation less well in order to protect speech and press.

I do not think filtering programs should be permitted in public libraries, period. I think filtering programs might be permissible (depending on their precision) in public schools in some circumstances, particularly with respect to the lower grades.  I am not sure this would involve excluding dissent; but, my position is that dissent should be entitled to special weight, not that it should always be protected.

Solum: Dissent, Injustice and the Meanings of America advances a proposal for a positive program of encouraging dissent.  For example, you advocate educational reform that would train students to be dissenting citizens.  A society in which such a program would be a practical political possibility would also likely be a society in which many of the specific injustices that motivate dissent would have been addressed directly by the political process.  The same political forces that could transform education could also combat substantive injustices.

What is the status of the positive program?  Is it meant as an exercise in ideal theory, or is it meant instead as a realistic possibility under the actual conditions of turn-of-the-millennium politics in the United States?

Shiffrin:  To some extent, the few pages I spend on "program" are an exercise in ideal theory, but an ideal theory that is in tension with the kind of ideal theory put forward by John Rawls.   Rawls asks about the components of a just society, and in Political Liberalism he asks (among other things) how citizens would speak to each other in a just society.  I do not believe that we will ever have a just society, and that the question of how citizens should speak to each other in such a society will always be premature.  Instead, the question is how do we want institutions to be structured in a society that always will have seriously unjust features.  I argue that one of the things we should be doing is encouraging and promoting dissent.

Because society is pluralistic and fragmented, I resist the notion that institutions or practices to promote dissent cannot be put into place before the injustices motivating them are addressed by the political system.  Universities have been a haven for dissenters and the training of critical thinkers here and abroad for centuries.  Partly because of the explosion of knowledge, much of K-12 education is moving to the training of problem-solvers and critical thinkers, as opposed simply to transferring information.  Moreover, because of changing demographics, much of K-12 education embraces forms of multicultural education, forms that I believe assist dissent.

Indeed, for all my criticism of the mass media, it is an institution that fosters particular forms of dissent (but not others), and the introduction of the Internet will make dissent more feasible and attractive -- despite our failure to address many serious injustices.

Boggs:  What, in your view, are "fighting words?"   Were the words in Chaplinsky ("God damned racketeer and damned fascist") fighting words?  I believe Chaplinsky's were the only words ever declared by the Supreme Court (or perhaps any federal court) to be fighting words.

Shiffrin: Chaplinsky, I believe, was wrongly decided.  I agree with the late Justice Lewis Powell and many of the lower courts that police officers should withstand personal insults as a part of the job, that it is unreasonable to criminalize bad manners by arrestees, and that such actions are too likely to trigger selective prosecutions.

I also think the "fighting words" doctrine is misconceived -- protecting those who can fight, but not those who cannot.  I believe that the tort of intentional infliction of emotional distress is better conceived than the "fighting words" doctrine for the civil context.  On the other hand, I do not believe injury should be necessary in the criminal context.  The defendants in R.A.V. -- who burned a cross in front of a black family’s home -- should have been liable whether or not the family was home and whether or not they felt injury.   Unlike the Court in R.A.V., I argue that a statute prohibiting racial or ethnic insults directed against specific individuals or small groups of individuals from groups that are historically oppressed because of their race, color, or national and ethnic origin should be constitutional.  I am tempted to say that the intentional infliction of emotional distress definition should substitute for the fighting words doctrine -- with the provisos that injury is not necessary and that insults directed against police officers in the line of duty could not constitute a criminal act.

Finally, it is often said that the Court has not upheld a "fighting words" conviction since Chaplinsky, but that is not true.  (See Lucas v. Arkansas.)  Moreover, convictions based on the doctrine in the lower courts are common, though the statutes employed may not be "fighting words" statutes.  (See Annot., Insulting Words Addressed Directly to Police Officer as Breach of Peace or Disorderly Conduct, 14 A.L.R. 4th 1252 (1982).)

Collins & Skover:  As you know, culture jamming is a modern form of dissent designed to contest the injustices and excesses of our commercial culture.   To that end, culture jammers appropriate the traditional images and logos of corporations and/or their products, and then alter them in a way so as to deliver a counter-message.  For example, a favorite culture jammer billboard ad shows a riderless horse in a graveyard with the caption "Marlboro Country."

Do you think culture jammers should be immune from trademark and copyright liability and/or liability for defamation?  How does this fit into your "approach" or "view" or "story" (we don’t say "theory") of dissent?

Shiffrin:  Billions are spent to promote products in our culture.  Speech calculated to criticize products should be protected and encouraged.   Enforcing trademark or copyright laws against dissent of this character suppresses free speech in favor of commerce.  Any such enforcement strikes me as plainly outrageous.

To encourage dissent in this area, I would provide breathing space by limiting liability to those circumstances in which the defendant knew the statement was false or was in reckless disregard of its falsehood.  In other words, I would apply the New York Times doctrine to this area.

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Defining Dissent(ers)

Solum:  The key concept in Dissent, Injustice and the Meanings of America is the notion of dissent.  Dissent appears to take on different meanings at different stages of the argument.  The introduction states: "By dissent, I mean speech that criticizes existing customs, habits, traditions, institutions, or authorities." (xi)  In your discussion of racist speech, dissent is characterized as "popularly disdained view" (77), and in the discussion of commercial speech, you suggest 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." (42)  These conceptions of dissent are not consistent with one another. For example, there can be majority criticisms of the status quo, or minority viewpoints can be aimed at achieving injustice.

Can you clarify the conception of dissent used in the book?  If that conception is multidimensional, how do these dimensions relate to one another?

Shiffrin:  I stand by the definition provided in the introduction and with the statement also in the introduction that dissent is specially valued, but not always protected.  I state that a dissent model values popularly disdained views (77), and it does, but I do not suggest that dissent must be "popularly disdained" to qualify as dissent.  On the other hand, I believe that dissent is a social practice, and instances of it should be evaluated in light of the values that a dissent model seeks to further and by reference to what I would regard as core cases of dissent -- the maverick, the rebel, or a social movement striking out against the current.

Commercial advertising of tobacco exhibits views that are critical of current values, and it might be crafted to specifically criticize existing customs, habits, traditions, or authorities.  Such advertising would contain some of the values we associate with dissent.  But tobacco advertising is not an instance of the maverick, the rebel, or a social movement striking out against the current.  It is an instance of the powerful influencing the market, rather than an instance of core dissent; on that analysis, tobacco advertising might deserve some value in the dissent mold, but not the full value we ordinarily associate with dissenters.  I also mention that such advertising is no part of a social practice that challenges unjust hierarchies with the prospect of promoting progressive change.  As I interpret tobacco advertising, it does not purport to challenge unjust hierarchies with the prospect of promoting progressive change.  If it did, it would have more dissenting value.

I must admit I am not entirely comfortable with this form of ad hoc application.  In the book, I said ad hoc evaluations of dissent value should not take place within the category of commercial speech.  Now I think I have changed my mind.  (In any event, my view that the value of tobacco advertising is outweighed by the threat to the public health does not depend on the degree of perceived First Amendment value the advertising has.)  I am comforted that almost all of the traditional areas of First Amendment discussion do not present hard cases concerning the existence of dissent or not.  Advocacy of illegal action, defamation of public figures, access to public places and the media, and the like are easy cases in this respect.  Pornography, hate speech, and tobacco advertising are the most commonly discussed problem areas.

Boggs:  Don’t the speech practices of many of those traditionally protected by the First Amendment (those you would call "dissenters") run afoul of your "hate speech" strictures, if honestly applied?  In notes 173 and 184 of Chapter III, you try to let communists off the hook, but only based on a very idealized version of communism.  To say that "communists affirm the equality principle" is surely a joke, unless you mean that everyone is entitled to the same respect -- i.e., none.  Isn’t making everyone a slave of the state ("from each according to his abilities") contrary to the meaning of America as well?  And wouldn’t depriving people of liberties and even life on the basis of their parents’ class be antithetical to a reasonable vision of America?  And if so, why shouldn’t that speech be suppressed just as much as racist speech?

Shiffrin:  The only racist speech I argue should be prohibited takes the form of racial epithets directed against individuals from historically oppressed groups.  I argue that general racist speech should be protected, because regulating it would serve to promote racism.  For me, it is an interesting question how much general racist speech is dissenting.  The easy approach would be to say that it criticizes existing customs, habits, institutions, and authorities and that it should be recognized as dissent.  Epithets against individuals might be distinguished as more assaults than criticism or dissent.  Alternatively, epithets might be thought of as dissent, but outweighed by the damage caused.

In the book, I argue that there is a question about what our real customs, habits, and traditions are.  The speech of the Klan says in public what many millions of white individuals think or come close to thinking in private, and silences those who might otherwise be dissenters.  So, I argue, a focus on dissent does not offer clear guidance.

Racist speech, I argue, has limited marketplace value (stimulating a livelier perception of truth) because it denies the fundamental premise of a democratic system, namely that all citizens are entitled to equal concern and respect.  If the Klan succeeded, the government would be illegitimate.  Despite that, I argue their speech should be protected.

Contrary to your intimations, I argue that most communists are in the same position as the Klan with respect to their position on free speech (and the same would be true of the extremely undemocratic features of Leninist and Stalinist theory and practice).  If they succeeded, the government would be illegitimate in that respect.   (I do not believe that redistribution is slavery.)  The speech of communists, nonetheless, should be restricted if, and only if, it causes sufficient harm to justify the regulation, and if government regulation would sufficiently mitigate the harm.   Communist speech in this country has not caused cognizable harm; racist speech does.  But regulating racist speech, I argue, would promote more racism, not less.

Boggs:  By way of a follow-up, at p. 91 and note 1, and at p. 97, you have a mild bow in the direction of the proposition that there may be such a thing as "dissent" that is not left-wing.  Do you really believe that the majority of those radically disaffected from the state of American society today are, broadly speaking, on the left?  Then, why are there militia-oriented short-wave and low-power radio in much greater numbers than such stations on the left?  If we tilt First Amendment jurisprudence with the specific aim of encouraging "dissent," will we get more Noam Chomskys or more Timothy McVeighs?

Shiffrin:  I believe the vast majority of the American people cannot be neatly characterized as either politically left or right.  I do think that most Americans are uncomfortable about the role of money in politics and the power of large business corporations.  I hardly think that users of short-wave and low-power radio are representative of the American people.  (I would, nonetheless, be interested in the political sociology of such radio and the Internet.)  Encouraging dissent would promote few Noam Chomskys and fewer Timothy McVeighs.  If one thinks of universities as places that promote dissent, they seem to end up with more left-leaning groups than the general population.  This, of course, makes the right quite nervous.

McMasters:  This spring, there was an interesting demonstration of political dissent at a high school graduation ceremony in Calvert County, Maryland.  A lone student objected to the traditional graduation prayer.  School officials, backed by an attorney general’s opinion, directed that a moment of silence be substituted for the prayer.  When the moment of silence was called for, however, several thousand in the audience stood and recited the Lord’s Prayer.  The student left the auditorium during the prayer and was not allowed to return to the ceremony once the prayer ended.  In this instance, the student was dissenting against the oppressive action of the majority, and the audience was dissenting against the oppressive action of government officials acting on behalf of the individual student.

Under your theory, how would the conflicting dissents at play be resolved?

Shiffrin:  My view is that both the audience and the student are dissenting for precisely your reasons.  Although the audience is reflecting majority sentiment, I would grant full dissenting value to criticism of government action. It is a wonderful example.

Strossen:  On the theoretical level, the major conundrum for me, in light of your dissent-centered vision of the First Amendment, is how you would define the relevant community against which it should be assessed whether the speaker or perspective would be given privileged status as a dissenting one.

In terms of real personal experiences and perceptions, anyone who espouses a minority viewpoint within his immediate community (defined in both geographical and other terms) no doubt feels like an "outsider," no matter how popular his/her perspective may be when measured according to some national standard.  Yet I assume you want to impose some "objective" national standard.   How would this be implemented?  Through public opinion surveys?

More importantly, why is this the appropriate benchmark?  To cite one recent controversy, which heated up after you wrote your book, how does anti-abortion advocacy (including the sort that has been the target of recent lawsuits) fit into this analysis?

Shiffrin:  I think it is possible that speech can be dissenting in one context, but not in another.  In determining the relevant geographic area, I would look to who was imposing the sanctions.  If a local area is repressing speech, I would tend to look to it as the relevant geographical area if the question were close.   I think this should be the proper way of looking at public figure analysis as well.   Someone might be a public figure if treated in the local press, but not necessarily in the national press.

As to anti-abortion advocates, I think they are criticizing established constitutional norms and are, therefore, dissenters.  This need not mean they should be able to engage in the intentional infliction of emotional distress, or that they may speak anywhere or anyplace or any time; but, as in the case of all dissenters, time, place, and manner restrictions should respect their right to demonstrate.

McMasters:  It is possible that some dissent is directed at what is thought to be an injustice, but is not.  Oppressed groups are not always or singularly correct -- even about their own needs or conditions.  There is some risk attached to the assumption that the silence of an individual or group is a symptom of oppression or an invitation to another group to define the solution to its oppression.   Some of the proposals you treat appear to regard speech as a finite commodity: Some speech must be taken from a group perceived to be in a position of power in order to provide more speech for a group perceived to be out of power.

Given all that, is a redistribution of speech rights an inevitable consequence of the dissent model, and, if so, how does that avoid substituting one injustice for another?

Shiffrin:  I do not assume that all dissent is individually valuable.  I do think that dissent in general is extremely healthy for the society and the body politic.  To the limited extent I believe that hate speech should be restricted, it is not primarily to redistribute speech, but to prevent unjustified harm.   I do think that the wealthy should not be permitted to dominate election campaigns.   You do not need a dissent theory to reach that conclusion.  A sensible conception of democracy would do the trick just as well.

Collins & Skover:  As Andrew Shapiro points out in his new book, The Control Revolution, the Internet is becoming ever more personalized (e.g., "My Yahoo!") in ways that filter out unwelcome messages.  In some respects, it is like an electronic gated community.

How, if at all, can your concerns about encouraging vibrant dissent be better realized in such a digital world?  And, is there anything government or the private sector can, or should, do about this?

Shiffrin:  Perhaps I am missing something, but I do not see "My Yahoo!" as filtering out dissent.  It simply organizes a web page into categories of information the recipient wants to receive.  The standard Yahoo page is itself innocuous.  I take the point that the ability to filter is increasing.  I think homeowners should be able to filter to protect their privacy as they see fit.   I do not think public libraries should be able to filter at all, ever.  I think the Internet has great promise for dissent, particularly for the organizing of social movements.  Government’s role, in particular, is to assure universal access to the Internet.

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The First Amendment in Theory

SolumJrgen Habermas advances a discourse theory of truth in which the "ideal communication situation" is defined in part by the notion of equality of communicative opportunity.  Such equality would exist if each participant in the situation had an equal opportunity to advance, criticize, and defend claims.

What is the relationship between a dissent-centered theory of the First Amendment and a theory that focuses on the notion of equality of communicative opportunity?  Should dissenters be given equality of communicative opportunity?   Is less than equality sufficient, or is more than equality required?

Shiffrin:  As Habermas has said many times, the ideal speech situation or the ideal communication situation is a counterfactual designed to test existing conditions.  Habermas does not expect that the public realm of any complicated society could duplicate the ideal speech situation.  If Habermas is trying in that model to determine what would be ideally just, I am not working in the realm of ideal theory in the same sense as Rawls and Habermas. I proceed from the assumption that society is riddled with injustice (Habermas would not disagree), and ask what we should particularly prize in free speech theory.  I argue that the practice of dissent is uniquely suited to combat injustice.

Habermas argues for equality of political participation as a democratic right.  I can accept that as a regulative ideal along with equality of communicative opportunity.  Both, however, in a complicated society can only be regulative ideals.   I think that persons have a right to the best reasonable approximation we can provide in a complex society.

Boggs:  Is it your view that the real "meaning of America," to which the First Amendment must conform, is that law professors (and the Supreme Court) get to decide what is the meaning of America and punish those whose speech is too antithetical to that meaning? (See 76-80)  Is the notion that "all citizens are worthy of equal concern and respect" (a phrase from Dworkin, not Madison or the Constitutional Convention) pretty abstract to be made the core meaning of America?  I doubt that the Founders would have spoken in such an abstract voice in making governmental commands.  And isn’t requiring "equal respect" for everyone, regardless of how they behave, committing the fallacy that Winston Churchill called "affecting a fine impartiality as between the fire brigade and the fire?"

Shiffrin:  The answer to the first question is no.  I did not write a word that would suggest law professors should be able to punish those who disagree with them.  Judges have the duty to interpret the First Amendment and, in so doing, they help establish the meaning of one of our most fundamental rights, which in turn speaks to the meaning of America.  A major part of the meaning of America, as I interpret the First Amendment, is that dissent is of special importance.  Any theory of the First Amendment will protect most speech, but not all speech.

As to my discussion of hate speech, which appears on the pages you reference, I believe most such speech should be protected, but not because of its sagacity.  Such speech conflicts with our constitutional commitment to equality -- a commitment that the Founders were unwilling to make.  If the Klan succeeded in establishing its goals, our government would be even more illegitimate than it is.

The phrase "equal concern and respect," which does come from Ronald Dworkin (and not from slaveholding deniers of equality who lived long before the equal protection clause), need not be interpreted in such an uncharitable way.  I respect people differently for their different actions, talents, and dispositions, but I respect all people equally as human beings.  That is what Dworkin means; and although the Ku Klux Klan does not agree, I would be surprised if you disagreed with equality in that sense.

McMasters:  The dissent model challenges "unjust hierarchies," yet your analysis accepts the hierarchical approach to speech.   Some speech is given preference over other speech, according to its utility in assuring equality and combating injustice.  For example, you would not allow commercial advertisers the same speech protection as, say, flag burners.  That approach denies, or at least degrades, the idea that there is an inherent good in speech freedom as it applies to individuals as well as groups, regardless of their message.   More to the point, if equality is one of the desired goals the dissent model seeks to serve, then all speakers should be equal.  If all speakers are equal, their speech should be equal.

Is the notion of equality, therefore, disabled if speakers are differently valued or if speech is divorced from the speaker?

Shiffrin:  Commercial advertising, as a category (though there are contrary instances), is not dissenting, and, therefore, does not have as much free speech value as dissenting speech.  As I make clear in the introduction, much commercial speech should be protected nonetheless.  Commercial speech gets some protection, just not special protection.  So, I believe that generally free speech is a good, but protecting dissent is particularly important.  From this, it follows that not all speech is equal.  Commercial advertisers hawking their wares and speakers who invade the privacy of others do not deserve the same First Amendment solitude as those who criticize existing customs, habits, institutions, and authorities.   It is, therefore, true that I defend a hierarchy of free speech values, and that equality of speech is "disabled" on this analysis (as it is in current doctrine in different ways), but I tend to think of this as a description of my views, rather than a telling criticism.

Boggs:  I really liked your example, from Cooper’s The Pioneers, of the character saying, "It’s a free country."  I wonder if this is the canonical source of the exact phrase, frequently heard on the playgrounds of my youth?  In any event, there is an equally homely riposte, which is "there ought to be a law."  Much of our politics is a struggle between these two gut feelings.  Doesn't the First Amendment come down squarely against the "there ought to be a law" school when it comes to speech?

Shiffrin:  I was told by a prominent English professor that the "It’s a free country" phrase makes its first appearance in American literature in The Pioneers.  Recently, I saw him, and he did not remember having said this, and was not sure it was true (though he did not know of a counter example).  As to the First Amendment squarely siding against laws that regulate or prohibit speech, First Amendment doctrine seems to say you may not prohibit or sanction speech except when you can (i.e., some forms of advocacy of illegal action, some defamation, copyright, perjury, obscenity, fighting words, false or deceptive commercial speech, etc.).

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Mill & The Marketplace

Solum:  There are strong affinities between Dissent, Injustice and the Meanings of America and the defense of free speech offered by John Stuart Mill in On Liberty.   There, Mill argues that false beliefs should be protected on the ground that deep appreciation and effective use of the truth requires that it be grasped in contest with opposing ideas.

Do you agree with Mill?  If so, does this imply that dissent that advocates injustice should receive protection as strong as dissent that serves the cause of justice?

Shiffrin:  Mill does argue that false speech is to be valued because it creates a livelier impression of truth, though few notice that Mill was talking about false ideas, not false facts.  (He favored rather strict regulation of false defamatory facts, though that does not appear in On Liberty).  I think that false speech can sometimes create a livelier impression of truth, but it takes an unreasonably sunny view to ignore that fact that false speech often causes harm.

Speech advocating injustice is often defending the status quo and is not dissenting.  Much dissent advocates injustice, however, and it should be protected in the absence of weighty countervailing interests, but it does not serve the interest in protecting dissent as fully as that speech which combats injustice

Solum:  One of the central claims of Dissent, Injustice and the Meanings of America is that Holmes’s marketplace-of-ideas theory does not provide an adequate account of the First Amendment freedom of speech.  But Dissent, Injustice and the Meanings of America has a strong focus on the potential transformative role of dissent in combating injustice.

Doesn’t this focus assume the marketplace theory?  How can dissent combat injustice if true dissenting viewpoints do not prevail in the marketplace of ideas?  If reform of the marketplace is required, then isn’t some notion of equality of communicative opportunity doing the crucial work?

Shiffrin:  Holmes said the best test of truth is its power to emerge in the marketplace of ideas.  Mill understood that much comes to be accepted in the marketplace that is false.  Our culture has accepted slavery, racism, sexism (and in the latter cases still does, in my opinion), but that does not make it true.   To deny that the marketplace is the best test of truth is not to deny the possibility of truth emerging in the marketplace or the possibility of transformative politics.  So, a focus on dissent has instrumental aspects as well as deontological aspects.  Equality of communicative opportunity can be a regulative ideal, but a focus on dissent is one of the things necessary to get closer to it.  Moreover, a focus on dissent is targeted against injustice (though there are other values implicated), and injustice is not just about equality of communicative opportunity.

Boggs:  Is entry into the intellectual marketplace really increasingly costly? (122)  Compared to the resources available in 1789 or 1863, is it really more expensive to start an alternative paper (or, heavens knows, set up a website) than it was to put out and distribute broadsides throughout the scattered colonies?  Remember, Washington, Franklin, Hancock, et al., were quite wealthy men, and did, in fact, promote their views with their "fortunes," as well as their "lives" and "sacred honor," without regard to spending limitations.

Shiffrin:  Page 122 summarizes Professor Fred Schauer’s view that entry into the intellectual marketplace is increasingly costly.  Schauer was referring to access to the mass media, and, in that respect, I think he is right.  Moreover, despite the importance of the Internet, I think it is bad political analysis to blink at the power of the mass media.  Nonetheless, the Internet has enormous potential, much of which is already being realized.  Extending its benefits to all citizens should be an important priority in our system of communications.

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Free Speech Fears

McMasters:  You write that "The First Amendment has a special regard for those who swim against the current, for those who would shake us to our foundations, for those who reject prevailing authority." (10)  Does that include the type of speech contained in Hit Man: A Technical Manual for Independent Contractors or the Nuremberg files anti-abortion web site?  They both contain speech that may be defined as dissent, but the courts have not been willing to protect that sort of speech in these two cases.

Do you think this sort of speech -- detailed instructions for an assassin and a threatening listing of private personal facts about abortion providers -- deserves protection under the First Amendment?

Shiffrin: Hit Man is an interesting example.  Arguably it does not carry much dissenting value because, as described, it does not criticize existing customs, habits, institutions, and authorities.  It merely provides information.  Nonetheless, the provision of that information is both unpopular and reveals an implicit renunciation of existing customs, habits, institutions, and authorities.  I have gone back and forth on whether to count implicit renunciations as dissenting.  My inclination is to say that there is dissenting value, but less than there would be if the dissent were explicit.  (Of course, if government was regulating because the speech was implicitly dissenting, I would give full dissenting value to the speech.)  All this aside, I would not protect Hit Man.   In the introduction to the book, I make it clear that dissent has special value, but that value can be outweighed, and I think some dissent can be sanctioned (e.g., knowing and reckless falsehoods about public figures or officials).  I think the value of Hit Man is outweighed by its harm.  I could easily imagine a different proponent of dissent theory going the other way.

As to the Nuremburg web site, I have not seen it.  My impression is that it carries even more dissent value, in that it explicitly criticizes a constitutionally protected right.  My assessment of whether sanctions can be imposed against the author of the web site would depend primarily upon the likelihood of violence against particular individuals mentioned on the site.  I am "thinking on my feet" here, but I think the showing need not be as stringent as Brandenburg, which requires intent and a likelihood of imminent lawless action.

The advocacy of illegal action cases have not involved threats against individuals. Watts is an exception that was wrongly decided in my view, because the President could not have reasonably feared for his safety.  On the other hand, if individuals could reasonably fear for their safety because of the web site, the Hit Man quality of the web site should rob it of protection.  Again the value of that aspect of the site would be outweighed by its potential harm.

McMasters:  In Chapter III, you make a very convincing argument for equating racist speech (targeted at individuals) with obscenity as outside the First Amendment’s protection.  Others argue for an assortment of other exceptions to free-speech guarantees, such as violence in speech.  In fact, you propose to regulate or restrict speech and the press to prevent corporate domination of public discourse, to keep advertising from influencing television programming and the coverage of news, and to require children’s programming to compensate for the failure of schools, among others.  If these arguments to emend the free speech principle prevail, and there is evidence that some of them may succeed over time, surely there comes a point at which the First Amendment will have been whittled down to little more than a constitutional curiosity.  That possibility doesn’t seem to concern you.  Why?

Shiffrin:  I hope you are right that some of them will succeed over time.  If I were running the courts (I am well aware that I am not), and if everything that I wanted were implemented, the First Amendment would be robust, not a constitutional curiosity.  Dissent, except in rare cases, would be protected, including workplace speech (racist speech targeted against individuals and other exceptions are narrow); the overwhelming majority of non-dissenting speech would be protected, including not only literature, art, science, and religious speech, but also most commercial and private speech.  True corporations could not buy elections, and advertisers could not control programming.  As to children’s programming, if government can run public schools, I do not see why it may not license non-profit institutions to provide children's programming on the public airwaves.

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Commercial Speech & Campaign Expenditures

Boggs:  Many of your examples on commercial speech (32-36) rest on the Posadas case.  As a description of Supreme Court doctrine, does not the recent opinion in Greater New Orleans Broadcasting (119 S. Ct. 1923), striking down regulations on casino broadcast advertising, gravely weaken your argument?  In particular, what is your view of the Court's statement that, even under less than strict scrutiny, "decisions that select among speakers conveying virtually identical messages are in serious tension with the principles undergirding the First Amendment." (119 S. Ct. at 1935)  Are not "tobacco is good" and "tobacco is bad" virtually identical messages, just as "fascists are bad" and "fascists are good"?

Shiffrin:  My commercial speech analysis did not rest on Posadas.   Indeed, I referred to Posadas as "somewhat bizarre" (139 n.4), and recognized that the Liquormart case rejected the deferential mode of analysis employed in Posadas (139 n.6).   (These are both footnotes to p. 33.)  I am not quite sure how to parse the dictum that appears on Page 1935 of the New Orleans opinion.  Advocacy of illegal action is protected in some cases under Brandenburg, but advocacy of legal action is protected.  Are these virtually identical?  The difference for First Amendment purposes is that one causes harm and the other does not.  Similarly, advertising that causes children and adults to smoke causes harm; anti-tobacco messages do not cause harm.  I think this difference is of First Amendment dimension.   Perhaps the Court will disagree; perhaps it will not; but the language in New Orleans will not be decisive.  In any event, it does not go beyond the language I discussed in Liquormart.

Collins & Skover:  Say a hypothetical group -- call it Friends of the Soil -- issued a press release lambasting the Terrific Tomato Company for the use of "dangerous," "killer" pesticides.  (Friends of the Soil is a very active political group of radical environmentalists.)  The scientific evidence, what little there is, leans toward the industry view that the pesticide used is "safe" for human consumption.  (FYI: Most of the scientific "studies" are industry supported.)  Now assume that the Terrific Tomato Company lost a considerable amount of money when its sales plummeted after the Friends of the Soil press release was issued and covered in the press.  Terrific Tomato then sued the Friends of the Soil under a state food-disparagement law.   Assume also that similar statements were made by Terrific Tomato’s competitor, Greedy Greens (an organic produce company), and that those statements, too, were reported in the press.  Greedy Greens was likewise sued.

In your view, should the case against the radicals (Friends of the Soil) be analyzed the same as that against the corporate speaker (Greedy Greens)?  If so, what does your dissent perspective add to the free speech equation?  If not, does it make sense to analyze the same message differently depending on the identity of the speaker?

Shiffrin:  I would require a showing of New York Times malice in both cases precisely because I want to encourage criticism of products.   So, in this context, I do not think it makes sense to distinguish between business corporations and private associations.  I do think it makes sense to distinguish between private associations and business corporations in the elections context -- and so does the Court, as it made clear (at least for candidate elections) in the Austin case.

Boggs:  Don’t ads have significant political overtones?   On the broadest view, car ads promote the freedom to drive.  A muscle car ad is an implicit attack on the 55 mile-per-hour limit.  Rock music ads may themselves be an implicit attack on authority.  At a more direct level, the famous Apple "1984" ad or the Hebrew National ad poked fun at government regulations (a top-hatted Uncle Sam saying that "the government says" HN can put all sort of stuff in their hot dogs, and a voice from the clouds saying "we can’t -- we’re kosher and we answer to an even higher authority.")  And, of course, an advertiser (of guns, for example) could make it a selling point that it has been vigilant in attacking federal regulation, and thereby defending the Second Amendment.

In fact, a local convenience store chain called "tobacco road" (a phrase, of course, grounded in Erskine Caldwell and North Carolina Basketball) advertises that it has "great prices on gas and a lot of other stuff we can’t talk about on TV."  Is that not dissent?

Shiffrin:  The overwhelming majority of the billions of dollars spent on advertising are not remotely connected to dissent.  The overwhelming majority of ads cater to traditional values.  I do not think car ads are dissenting.   I’d have to see the muscle car ad and the Apple ad, but I will assume they are dissenting.  Some rock ads are dissenting.  And so are the Hebrew National ads, the tobacco road ads, and possibly the hypothetical gun ad.  Those ads that are dissenting should be protected in the absence of fraud, deception, or overriding harm.   So far as I know, government does not yet seek to prohibit the ads you mention, but I wish all tobacco ads were outlawed.

Boggs:  How can you begin to address the question of campaign spending limitations (whether directly, or through independent candidate ads or issue ads) without ever discussing the freedom of the media in campaigns or in affecting political outcomes?  How can it be impermissible "special interest" exertion of the power of the mighty for a small grocery owner to spend $1,100 on a billboard, but be just fine for Katherine Graham or Ted Turner to spend $1,100,000 on news coverage that much more powerfully affects public opinion and election outcomes?  Or do you think that the Government can regulate the effect that TV and newspapers, or books and movies, have on the results of elections?   (Remember that two of the major documents of the 1964 Goldwater campaign were books: The Conscience of a Conservative (pro-Goldwater) and A Texan Looks at Lyndon (anti-Johnson).  Could their circulation have been limited as campaign spending?)

In Chapter IV, note 192, you write: "For public expenditures to serve their purpose, private expenditures have to be controlled." What a core principle! Is this simply a logical extension of views in other areas?  For government social policies concerning housing, schooling, medicine, etc., to serve their purpose, no one should be allowed to pay for their own schooling, housing, medicine, etc.?

Shiffrin:  As Vince Blasi has persuasively argued, the press in our constitutional system is supposed to serve a checking function on government.  On the other hand, I argue in the book that the media for a variety of reasons marginalizes dissent, and that there are structural changes that can be made without restricting what the media have to say.  To be sure, for example, by affording access to the media by candidates and others, there would be less air time, but this is not direct content control.  On any structuring of the mass media, even if owners are forbidden to intervene in the news, equality of communicative opportunities will not be achieved.  We do not now live in a perfect world, and we never will.

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JURIST: Books-on-Law is edited by Ronald K.L. Collins and David M. Skover of the Seattle University School of Law.

Board of Editorial Consultants: Raj Bhala, George Washington University Law School; Miriam Galston, George Washington University Law School; Kermit Hall, Ohio State University College of Law; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; David M. O'Brien, University of Virginia Department of Government and Foreign Affairs; Judith Resnik, Yale Law School; Edwin L. Rubin, University of Pennsylvania Law School; Steven H. Shriffrin, Cornell Law School; Nadine Strossen, New York Law School; David B. Wilkins, Harvard Law School.

Administrative Assistant for Books-on-Law: Ms. Nancy Ammons
Technical Assistant for Books-on-Law: Steven Pacillio, Esq.

© Ronald K.L. Collins and David Skover, 1999.