On the one hand, it may seem to be poor timing to read a book that challenges First Amendment principles. As President Donald Trump wages war on constitutional values and the press, he and his spokespeople have repeatedly expressed their scorn for critics in the media and other dissenters. Stephen Bannon, the president’s lead advisor, has even told the press that it “should keep its mouth shut and just listen” (New York Times, January 26, 2017)—a request that eviscerates the purpose of free speech. This is a time when it seems we need more speech, not less. Understandably, many Americans have been renewing their commitment to the First Amendment as a way to protest governmental overreach.
On the other hand, What Is Wrong with the First Amendment? comes at an unusually opportune time. Since President’s Trump campaign and election, there seems to have been a marked upswing in incidents of hate speech, hate crimes, and a general lack of civility in public discourse. As Steven Shiffrin writes, the harm that can come from unrestrained speech has become increasingly apparent.
On my reading, it would be a mistake to neglect this thoughtful, thought-provoking book about the harm that unregulated speech can inflict on individuals and the nation. Even though we live in an era in which we arguably need more speech rather than less, Shiffrin is wise to counsel that we should not fetishize the value of free speech. Speech is essential, yet when used unwisely, it can cause considerable harm.
Shiffrin should know. He is one of the legal academy’s leading lights on free speech scholarship, and this book may come as a surprise to those familiar with his earlier work. Here, instead of celebrating free speech, he carefully and cautiously circumscribes it. He does so because unrestrained speech can cause terrible harms, and he does a terrific job of delineating those harms in many important arenas. If we insist on too much free speech, we may end up permitting violations of individuals’ privacy. Or if we allow too much coverage of a trial, we may end up undermining the defendant’s chance at a fair trial. Or if we permit racist hate speech, we could violate some citizens’ chances to enjoy equal citizenship. Similarly, unregulated pornography can invite violence against women as well as harm to women’s equality. There are even harms from unfettered free speech on animal welfare, consumer culture, and, quite importantly, political debate.
For example, Shiffrin argues that interpreting our First Amendment too broadly has permitted the ascendency of political speech for the rich at the expense of political speech for others. When the Supreme Court handed down a new interpretation of what counts as “free speech” in Citizens United v FEC, they effectively handed the rich a powerful “free speech” tool for dominating political speech—a tool that empowered them to influence unduly the outcome of elections and the direction of governing. Now, when the elite insist on constitutional free speech, their speech results in a “democratic distortion” (p. 97) of a demos where everyone is supposed to enjoy a meaningful opportunity to contribute to the public debate. Free speech is no longer a bulwark against abusive government, but rather paves the way for plutocracy.
This is an important work because it helps clarify what happens when we let speech go unchecked. At its core, Shiffrin’s is a lawyer’s argument with important political implications. There is a judicial orientation endemic to legal analysis that pushes us to examine one rights-claim at a time. When we do that, it is tempting to be an absolutist about rights. As Ronald Dworkin argues in Taking Rights Seriously (1978), rights are supposed to function as “trumps,” as argument-ending moves that close off claims that public preferences should take priority over individual rights-claims. Shiffrin is correct in arguing that this kind of position fails to account for the harm that a right might cause to others, and it is this harm that should invite us to revisit our assumptions that rights-claims should always prevail.
The easiest way to see how Shiffrin’s argument works is to think about rights in a Hohfeldian way. Along with every right comes a correlative duty. For example, my right to free speech correlates with Congress’s duty to not make any laws abridging my freedom of speech. So when I assert my right to free speech, I am really claiming that the Congress has a duty not to abridge my speech. What this shift to right/duties enables us to do is to see that Congress has many duties, not all of which are compatible with its duty to avoid abridging my free speech. Congress also has a duty to protect privacy, provide due process, promote sexual equality, and so on. The real problem for justifying a right to free speech, then, is not only about making the case that Congress’s duties should not violate my right to free speech. It is also about how Congress should reconcile its competing duties with my rights-based claim.
Shiffrin seems to argue that an assessment of harm should drive the government’s reconciliation of its duties to allow free speech with its other duties to the public. When the harm the right causes is sufficient, he warns us to rethink the justice of that right. Preventing undue harm to privacy, due process, equality, and so on is what drives his concern about how and when to limit the scope of the right to free speech. Sometimes the governmental duty toward the free speech rights holder will prevail, but at other times the governmental duty to privacy or equality rights holders will prevail. The adult pornographer may get his right to publish his material even though it causes some harm, but the child pornographer will not because the harm caused is too great.
Shiffrin’s analysis begs two questions. First, what counts as harm? How is it measured? This becomes important because it is not always obvious how to weigh the harm of violating free speech against, say, the harm of undermining equality. The underlying values of each matter in their own ways, and trying to assess the cost of harm to both of them on the same scale may give short shrift to the unique worth of each of these incommensurable values.
Second, why is harm reduction the most important goal to pursue when interpreting the Constitution? Yes, harm is obviously a bad thing and should be avoided. And yes, John Stuart Mill provides us with many compelling reasons in On Liberty (1859) why harm to the marketplace of ideas effectively undermines our quest for Truth, and without Truth, humanity is less able to progress. But Shiffrin says little about why harm reduction drives his constitutional hermeneutic. After all, it is also possible for government to reconcile competing duties in other ways. Rather than prioritizing the avoidance of harm, for example, courts could prioritize some constitutional values over others. Constitutional theorists think of this as an ordering of constitutional values—an interpretive method that requires us to contemplate each value in light of its place in the constitutional whole. More concretely, this would entail favoring the Constitution’s fundamental values over those that are less essential. For example, privacy may take priority over speech as a more foundational value. Or promoting equality may eclipse free speech because unequal citizenship is anathema to our constitutional democracy, and itself forms the very foundation for other rights, including the right to free speech. By looking at the value of speech in light of the Constitution as a whole, we can also achieve the same goal Shiffrin seeks: to find compelling justifications for sometimes limiting the reach of free speech.
My questions go more to the heart of Shiffrin’s method than to the content of what he argued. Indeed, they do not diminish the quality of his overall argument at all. While we may disagree about how to sort out the dilemmas inevitably posed by idolizing free speech, Shiffrin is surely right that free speech is no idol, and that any adequate legal theory of free speech ought not to treat it as such.
Especially at a time when free speech is both under attack and increasingly popular, I strongly recommend this clearly written, hard-hitting analysis to all students of the First Amendment, whether for an undergraduate or graduate class, or for a scholar who needs an introduction to the real-world implications of traditional free speech doctrine.
