FAC 4 (First Amendment Conversations) – Steve Shiffrin, the Dissenter at the First Amendment Table

My [next] book calls upon you and others to recognize that your religion – your speech worship – does a lot of damage, and you might do well to contemplate the possibility that the lack of free speech idolatry in other Western countries might be leading to more sensible conclusions (except when it comes to dissent where they are somewhat worse than we are).

Steven H. Shiffrin is the Charles Frank Reavis Sr., Professor of Law at Cornell Law School. He is the author of several books including: The Religious Left and Church-State Relations (Princeton University Press, 2009), Dissent, Injustice, and the Meanings of America (Princeton University Press, 1999), and The First Amendment, Democracy, and Romance (Harvard Press, 1990). He is the coauthor of Constitutional Law (11th ed., 2011) and The First Amendment (5th ed., 2011), both of which are widely used casebooks in the field. He is also a regular contributor to the “Religious Left Law” blog (and is active on Twitter and Facebook). From time to time, he files amicus briefs in First Amendment cases such as the recent Elane Photography case, which the Supreme Court declined to review. And he is a frequent speaker on the First Amendment lecture circuit.

In 2007, the Loyola of Los Angeles Law Review dedicated an entire issue to honor Steve. In that symposium, the late C. Edwin Baker (a noted First Amendment scholar in his own right) labeled Steve as “one of the country’s three or four top First Amendment scholars.” He went on to add: “I consider Steve the best in terms of possibly the most important criterion: being right about what really matters. On that ground, his achievement is truly worthy of honor.”

Steve Shiffrin

Steve Shiffrin

Steve is also a dear and longtime  friend. That friendship dates back to our days in law school when Steve first introduced me to the works of Harry Kalven, the preeminent  free speech scholar of his time. Speaking of law school, Steve’s student law review Note was cited approvingly by Justice Brennan in Fisher v. United States (1976). It was but one of several early signs of the high caliber of his scholarship. After law school he served as a law clerk to Judge Warren Ferguson on the United States District Court, Los Angeles (1975-76). 

Steve, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our FAC readers. I’d like to ask you some tough and some easy questions, all in the spirit of robust discussion between friends.  

Question: When I think of your work — beyond its rigorous analytical contours, that is — I always think of the dissenter, that lone wolf who howls at the moon for reasons unknown to or unpopular with the rest of us. Why this fascination with rogues or “moral lepers” as you tag them?

Answer: I have argued that the protection of dissent should occupy a special place in the First Amendment primarily, but not exclusively, because it is crucial to the combatting of injustice. I would think this even if I did not admire dissenters. But I do hold a special admiration for those who swim against the current and challenge existing customs, habits, institutions, and authorities. I do not think of dissenters as moral lepers (though some of them are). And I do not think dissent should always be protected. But I do think the practice of dissent should be regarded as especially valuable.

Question: What is your sense of Edward Snowden? Do you consider him a dissenter, of sorts? And do you believe that the First Amendment should protect him if he were to be prosecuted for leaking classified documents?

Answer: The First Amendment should often protect those who blow the whistle on government misconduct even if documents relating to that misconduct are classified. Much of the conduct disclosed by Snowden was rightly disclosed. I am not sure if all of it was. I find it disturbing that the government welcomed the debate instigated by Snowden even though it attempted to prevent the debate from occurring and that it seeks to prosecute Snowden for creating it. In particular, the desire to prosecute Snowden is disturbing when you recognize that government for decades has selectively revealed classified information in pursuit of official or partisan ends.

Question: In your Dissent book, you wrote: “if content neutrality is the First Amendment emperor, the emperor has no clothes.” Given the centrality of that doctrine in our current First Amendment decisional law, that seems to be a striking (and that is the word) assessment. Can you elaborate a bit on your thoughts concerning this?

Answer: The First Amendment prevents content discrimination except when it doesn’t. Many exceptions to First Amendment protection depend upon content, e.g., some forms of defamation, sexual speech, advocacy of illegal action. The Court has no principled justification for using strict scrutiny regarding some forms of content discrimination and less scrutiny for others. A theory of content neutrality does nothing to explain its selective use.

The Values of Free Speech vs the Value of Democracy

Question: In 1990 you wrote: “there is something quite odd about suppressing speech in the name of democracy.” Forgive me, but in today’s vernacular that could almost be the mantra of, say, the libertarian Cato Institute or of Shaun McCutcheon, the petitioner in McCutcheon v. FEC. What is your response to that?

Answer: A rhetorical joust in one context does not work in another. A politically centered theory of the First Amendment rooted in democratic theory leads to the conclusion that much non-political speech is not protected because it is only marginally related, if at all, to the democratic dialogue. Contributing to democratic dialogue should not be a necessary condition for First Amendment protection. Suppressing literature, music or art or private non-political speech in the name of democratic theory is entirely unpersuasive. At the same time, the values of free speech can be outweighed by the value of democracy. The Court’s insensitivity to this and its legalization of forms of bribery in Buckley, Citizens United, and McCutcheon is an embarrassment to the country and a scandal.

Question: As you know, the ACLU argued for the First Amendment claims sustained in Buckley v. Valeo (1976), the case in which Senator James Buckley and former Senator Eugene McCarthy challenged certain provisions of the 1974 Amendment to the Federal Election Campaign Act. Do you think that the ACLU and the majority got in right in Buckley?

Answer: No. The Court left human beings free to spend unlimited sums of money with the intent and effect of advancing or opposing political candidates and by implication it left corporations free to do the same so long as they did not use explicit language of endorsement or opposition to a particular candidate. Democracy is not consistent with the kind of preferential access and influence that the wealthy buy by spending large sums of money in this way. The victory for free speech is a significant democratic loss.

Question: Would it be fair to say, at least generally speaking, that your view of free expression under the First Amendment turns on power and those who possess it versus those who do not? What prompts this question is a passage in your Romance book wherein you wrote: “From the romantic perspective, the regulation of the wealthy, the powerful, and the large corporate conglomerate does not ordinarily inspire concern  [about whether such individuals or groups] are in danger of being stifled or that individual self-expression is at risk” By contrast, you add, the “Schencks, the Carlins, [and] the O’Briens” do need such protection. Hence, “from the romantic perspective, it is clear: the powerful rarely need protection; dissenters often do.” Putting aside for the moment the fact that the late comedian George Carlin was a man of means, does your view of free speech look at wealth and power as important factors in deciding whether to protect speech?

Reinhold Niebuhr

Reinhold Niebuhr

Answer: I agree with Reinhold Neibuhr: “We cannot fully trust the motives of any ruling class or power. That is why it is important to maintain democratic checks upon the centers of power.” My emphasis on dissent is motivated by a sense that the society is riddled with unjust hierarchies and power distributions. Accordingly, rules should be formulated to protect those, rich or poor, who would challenge existing habits, customs, institutions, and authorities. Most often those who do will be those who are subordinated in the society, but not necessarily. So in crafting rules regarding the ability to engage in demonstrations, for example, the wealthy and the poor can benefit from the rules as can those who celebrate existing institutions. But the crafting of such rules if tipped toward protecting demonstrations will most often benefit the subordinated. In applying rules, I generally do not favor ad hoc determinations whether particular speech is dissenting, let alone whether the dissenters are powerful.

Racist Speech 

Question: You have been critical of that jurisprudence that defends “racist speech.” That First Amendment values, you have written, “dictate that racist speech cannot be regulated is ultimately indefensible.” Two questions here: (1) How would you define “racist speech” and (2) would your views be the same when it comes to “bigoted” speech based on religious animus? Re the latter, the late Christopher Hitchens (one of my favorite dissidents) was sometimes accused of being bigoted towards Muslims given his repeated and overtly hostile comments about that religion and those who believe in it.

Answer: Georgetown Law Professor Mari Matsuda once argued in a justly famous article that racist speech should not be protected and that speech should be defined as “speech with a message of racial inferiority, that is directed against a historically oppressed group, and that is persecutorial, hateful and degrading.” I could accept that definition and the same conceptual framework could be applied to religion. From this perspective, serious writings, however flawed, arguing for racial superiority would be protected, and so would the anti-religious writings of Hitchens or Sam Harris.

Question: Do you think the Court got it right in protecting the speech of Clarence Brandenburg, an ardent KKK activist, in that landmark 1969 case? As you know, in one of his fiery speeches he referred to the possibility of “revengeance” [sic] against “niggers,” “Jews,” and those who supported them. Still, the Court (including Justice Thurgood Marshall) found his speech to be protected by the First Amendment. Though the case involved a larger First Amendment claim, it was a claim presented in the context of racist speech. Would you have sustained Clarence Brandenburg’s First Amendment claim?

Answer: The issue in Brandenburg v. Ohio was advocacy of illegal action, not racist speech. In my view, Brandenburg was rightly decided particularly in insisting on a requirement of imminent lawless action. If racist speech were at issue, one gloss that might be put on Matsuda’s definition is that the speech be directed at or otherwise likely to reach members of the group under attack. Brandenburg’s speech did become public, but it is not clear to me that the speech was likely to become public at the time it was given. I would not outlaw speech merely because it is reprehensible. On the other hand, it is strongly arguable that racist speech as defined by Matsuda in the aggregate causes sufficient harm that it should be regulated whether or not it is likely to reach the members of the group under attack. History suggests this is especially true with respect to the speech uttered at Klan rallies.

The Roberts Court

Question: You must cringe in these days of Citizens United and, most recently, the McCutcheon case. As you know, some notable liberals and groups have led various national campaigns to amend the First Amendment while still others are calling for a constitutional convention. Where do you stand on the amendment/convention issue? Would you support any such constitutional “reforms” along these lines?

Answer: If I were running the world, the expenditures aspect of Buckley would be overturned and non-media business corporations would be denied First Amendment liberty rights while retaining a measure of First Amendment equality rights (eg., it should be unconstitutional to tell a business corporation that it can endorse one political party, but not another). In my view, it goes too far to say corporations should have no rights (think of fair trial rights, right to counsel, Fourth Amendment protections, etc.). Nonetheless, I think the proposed “corporations are not people” amendments though flawed are better than the present system. Finally, I favor specific amendments over general constitutional conventions.

Question: The Roberts Court has rendered 31 opinions in First Amendment free expression cases. Do you agree with any of those cases in which a majority vindicated a First Amendment claim? If so, which one(s) and do you think think any of these to be important?

Answer: Of the 14 cases, vindicating a First Amendment (non-religion) claim in the Roberts tenure, I agree with three: Knox (required contributions for political purposes by members of bargaining unit)(though not for the reasons given by the Court), Alliance for Open Society International (required speech not within the scope of the federal program as a condition of receiving government funds), and Alvarez (punishing lying about the receipt of a medal of honor). Neither Knox nor Alliance is significant in my view. Alvarez is important because five justices break with the methodology that would automatically apply strict scrutiny to proposed new categories of unprotected speech, and it addresses important issues regarding the status of false speech in First Amendment jurisprudence, though the issues are better discussed by Seana Shiffrin in her forthcoming book: Speech Matters: On Lying, Morality, and the Law (Princeton: 2014).

I do not agree with the six cases in which the Court has overturned campaign finance reforms, or the case in which it tortured the already bankrupt commercial speech doctrine to protect the interests of speakers rather than listeners, or the cases in which it assumed that the depiction of animal cruelty, violent video games for children, or the intentional infliction of emotional distress directed at a father at his son’s funeral were classes of speech so valuable that they deserved the protection of strict scrutiny. On the other side of the ledger, the Court has wrongly denied First Amendment protection to those in subordinate positions such as workers, students, and prisoners.

What’s Wrong with the First Amendment?

Question: I understand you’re nearly done with yet another book on free speech, which is tentatively titled What’s Wrong with the First Amendment?. So, if I may be a tad bold, why have you forsaken us?  (Please don’t take offense; after all, even Judas Iscariot’s stock has risen as of late.) Where have the First Amendment faithful gone wrong?

Answer: I suppose the decisions on the depictions of animal cruelty, grotesquely violent video games, and the cruel intentional infliction of emotional distress (as opposed to the campaign finance cases which may simply be partisan politics clothed with a constitutional mask) pushed me over the edge to the recognition that with the exception of dissent (which is undervalued), the Court overvalues speech in ways that would never be contemplated in Canada or Europe.

It is telling to me that you put your question in religious terms because the First Amendment functions more like a religion than a practical tool of government, and the religion worships a false idol. It wrongly imagines that speech outweighs or almost always outweighs other important values including privacy, dignity, justice (think of fair trials), public health (tobacco advertising and violent video games – despite Justice Antonin Scalia’s amateur social science analysis), equality, and democracy. My book calls upon you and others to recognize that your religion – your speech worship – does a lot of damage, and you might do well to contemplate the possibility that the lack of free speech idolatry in other Western countries might be leading to more sensible conclusions (except when it comes to dissent where they are somewhat worse than we are).

Question: One final thing: you’ve ventured into a new career of sorts. Will you please say a few words about this new direction in your life?

Answer: Yes, I have retired from full time teaching, but not writing. I am engaged in the part time practice of criminal defense work, primarily representing indigent defendants. It is much harder than law teaching, but it is challenging, invigorating, and hopefully worthwhile.

Thank you, Steve. Happy trails, my friend. 

Earlier FAC Columns: # 1 (Larry Tribe), # 2 (Bruce Johnson), & # 3 (Martin Redish)

Last FAN Column: “Why the Justices vote as they do in First Amendment Free Expression

Next FAN Column: Wednesday, May 14th.

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3 Responses

  1. Brett Bellmore says:

    A scary guy. I am allowed to say that, right?