FAN 93 (First Amendment News) “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer
The main problem with the First Amendment . . . is that it overprotects speech.
[T]he First Amendment, as now interpreted, in many ways is profoundly unjust. Silence in the face of that injustice is out of place no matter how invisible that injustice might be to academics, journalists, and citizens who have been raised in a culture that worships the First Amendment.
— Steven Shiffrin
That’s right, you read it correctly. Too much free speech protection, a bad thing? Who would have thought it possible?
Yes, you can turn the clock back to the time of Walter Berns and his book Freedom, Virtue and the First Amendment (1957) to find plenty of arguments about why protecting too much free speech is a bad thing. And then there was Father Francis Canavan’s book Freedom of Expression: Purpose as Limit (1984); he, too, had serious reservations about overprotecting speech. David Lowenthal took such criticism to a new level in his book No Liberty for License: The Forgotten Logic of the First Amendment (1997). In that book Professor Lowenthal argued: “[T]he First Amendment, intended as a bulwark of the republic, has become a prime agent of its destruction. For the past three decades and more, the Supreme Court itself has led the nation away from the moderate freedom that the common good requires and generations of liberals have advocated.”
Same gospel, different preachers? Hardly! That’s because Berns, Canavan and Lowenthal are all conservative, quite conservative in fact. But Steven Shiffrin, conservative? Never! The emeritus Cornell law professor turned criminal defense lawyer is nothing if not liberal. And he has long flown the First Amendment banner with great pride and vigor in works such as The First Amendment, Democracy, and Romance (1990) and in Dissent, Injustice, and the Meanings of America (1999). Back in the late 1970s, he even once represented me (as co-counsel) in a state taxpayer challenge to a city ordinance banning the opening of any new bookstores.
So what gives? Has he veered over to the dark side? No, for as he sees it the problem is exactly the opposite — many of the new defenders of the First Amendment have forced it over to that side. He said as much in his 2014 Melville Nimmer lecture at UCLA Law School. In other words, free-speech exceptionalism is an endangered idea; the days of First Amendment celebration are winding down. Simply consider the following from his next book, What’s Wrong with the First Amendment? (Cambridge University Press, June-July, 2016):
I have been teaching classes in the First Amendment for nearly forty years. Students love the First Amendment. Like the overwhelming majority of their fellow citizens, they not only celebrate its protection of a basic human right; they celebrate its role as a part of their identity as Americans.
There was a time when those celebrations were justified, but I believe we have come to a point when it is thinkable that the First Amendment does more harm than good. . . . Free speech doctrine downplays the harm that speech can cause. Indeed, its most problematic assumption is that free speech is considered to be so valuable that it almost always outweighs other values with which it comes into conflict. Of course, free speech is ordinarily valuable, but there is no good reason to assume that it invariably should outweigh other values. Nor is that assumption harmless.
Shiffrin finds such First Amendment harms in the following areas:
- privacy-invading speech
- emotional distress
- pre-trial publicity
- racist speech
- animal cruelty
- violent video games
- certain forms of commercial advertising, and
- political speech by wealthy corporations.
Mindful of such matters, Shiffrin admonishes: “A commitment to freedom of speech need not commit us to this unwholesome path. Other Western countries, for example, have not taken this course despite their own commitments to the free speech principle.” There is, of course, more, much more. But we will have to wait for the book to come out before venturing there.
Judge Steve Shiffrin’s thesis as you will (and there will be more of that, to be sure, in the days ahead). But my sense is that this book could well mark a tipping point in the liberal ethos once wed to the First Amendment. That ethos has been in flux owing to the thinking of scholars such as C. Edwin Baker, Owen Fiss, Burt Neuborne, Tamara Piety, and Robert Post, among others.
Stay tuned — more to come in early summer.
→ FAC 4: “Steve Shiffrin, the Dissenter at the First Amendment Table,” May 12, 2014
→ FAN 40: “Steve Shiffrin & Bob Corn-Revere debate ‘What’s Wrong with the First Amendment?,'” Nov. 12, 2014
Competition in the Marketplace of Ideas
This year could well be the year of robust competition in the marketplace of free-speech ideas, what with the forthcoming publication of Floyd Abrams’s Why the First Amendment Matters (Yale University Press) and Robert Corn-Revere’s The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma (Cambridge University Press).
Other Forthcoming Books
- Mary Katharine Ham & Guy Benson End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (Crown Forum, July 12, 2016)
- Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Macmillan, July, 2016)
- Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 2016)
- Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, May 24, 2016)
9th Circuit Uses Heightened Scrutiny in Commercial Speech Case Read More