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.”

Shiffrin (on left) with First Amendment lawyer Robert Corn-Revere

Shiffrin (on right) with First Amendment lawyer Robert Corn-Revere (ACLU lawyer & law prof. Joel Gora in background) 

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
  • pornography
  • 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.

Related Posts

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

Seana Shiffrin, Speech Matters: On Lying, Morality, and the Law (Princeton University Press, 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).

512N0oiVlWL._SX331_BO1,204,203,200_Other Forthcoming Books

  1. 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)
  2. Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Macmillan, July, 2016)
  3. Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 2016)
  4. 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

The case is Retail Digital Network v. Appelsmith (9th Cir., Jan. 7, 2016). California law (Business & Professions Code § 25503(f)–(h)) forbids manufacturers and wholesalers of alcoholic beverages from giving anything of value to retailers for advertising their alcoholic products. That law was challenged on First Amendment grounds.

In an opinion by Circuit Judge Consuelo M. Callahan, a panel of the Ninth Circuit declared that Sorrell v. IMS Health, Inc. (2011) “requires heightened judicial scrutiny of content-based restrictions on non-misleading commercial speech regarding lawful products, rather than the intermediate scrutiny . . . We therefore reverse the district court’s summary judgment in favor of Defendant- Appellee Jacob Appelsmith, Director of the California Department of Alcoholic Beverage Control (the State), and remand on an open record for the district court to apply heightened judicial scrutiny in the first instance.”

“On remand,” Judge Callahan declared, “there are several considerations that should be addressed in applying heightened judicial scrutiny. As an initial matter, we observe that the State’s goal of suppressing a particular commercial structure, rather than a particular commercial message, remains valid. . . . The broad goal of ‘temperance also remains ‘a valid and important interest of the State under the Twenty-first Amendment.’ Costco [citation]. However, ‘state laws that violate other provisions of the Constitution [including the First Amendment] are not saved by the Twenty-first Amendment.’ [citation]. Moreover, to the extent that the legislature intended to promote temperance by reducing the amount of point-of- purchase advertising, as Actmedia assumed, the court’s skepticism regarding whether section 25503(f)–(h)’s burden on expression directly advances and is fit to achieve a permissible goal should be deepened. This is because a statute tailored to fit an impermissible goal of suppressing commercial speech for fear that it will persuade is less likely to be a close fit for another, permissible goal of the statute.”

“[W]ith respect to the third Central Hudson factor, the ‘Government carries the burden of showing that the challenged regulation advances the Government’s interest in a direct and material way.” [citation] ‘That burden is not satisfied by mere speculation or conjecture.’ [citation] Rather, to survive scrutiny ‘a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.’ [citation] On remand, the district court should consider whether the State has shown that there is a real danger that paid advertising of alcoholic beverages would lead to vertical or horizontal integration under circumstances existing in the alcoholic beverage market today.”

“The district court must also consider whether the State has shown that section 25503(f)–(h) materially advances the State’s goals of preventing vertical and horizontal integration and promoting temperance. We note that the increasing number of statutory exceptions to section 25503(f)–(h) call into doubt whether the statute materially advances these aims. . . . Additionally, the record before us does not demonstrate that a prohibition on paid point-of-sale advertising materially advances the goal of temperance.”

“With respect to the fourth Central Hudson factor, heightened judicial scrutiny demands a “fit between the legislature’s ends and the means chosen to accomplish those ends.” [citation] We cannot say on the record now before us that section 25503(f)–(h) is narrowly tailored to serve the State’s interest in preventing advertising payments from undermining its triple-tiered distribution and licensing scheme. . . .”

“While we decline to decide these issues on the thin record before us, the State must meet its burden on remand.”

Chief Judge Sidney R. Thomas and Senior District Judge Edward R. Korman joined the opinion.

→ Olivier A. Taillieu argued the case (joined by Raffi V. Zerounian) for Plaintiff-Appellant.

Friedrichs v. California Teachers Association — Commentaries

 Transcript of oral arguments

  1. Garrett Epps, “Will the U.S. Supreme Court Gut Public-Employee Unions?,” The Atlantic, Jan. 12, 2016
  2. Hans von Spakovsky & Elizabeth Slattery, “Will the Supreme Court Protect Unions Over the First Amendment Rights of Individual Teachers?,” CNS News, Jan. 12, 2016
  3. Jacob Gershman, “For Challengers in Teachers’ Union Case, Everything is Politics,” WSJ Law Blog, Jan. 12, 2016
  4. Steven Schwinn, “The Demise of Public-Sector Fair Share,” Constitutional Law Prof Blog, Jan. 12, 2016
  5. Lyle Denniston, “Argument analysis: The question not asked,” SCOTUSblog, Jan. 11, 2016
  6. Amy Howe, “Union fees in jeopardy: In Plain English,” SCOTUSblog, Jan. 11, 2016
  7. Molly Runkle, “Today’s argument in Friedrichs v. California Teachers Association,” SCOTUSblog, Jan. 11, 2016
  8. Vincent Vernuccio, “Will Supreme Court allow government unions to override the First Amendment?,” Fox News,  Jan. 11, 2016
  9. George Will, “A chance to mend First Amendment rights,” News-Gazette, Jan. 10, 2016
  10. Ilya Shapiro & Jason Bedrick, “Mandatory Union Dues Trample First Amendment,” Cato Institute, Jan. 9, 2016

Forthcoming Scholarly Article

Notable New Blog Post

Eugene Volokh, “Political candidate with psychology training and experience may herself ‘psychologist,’ even if she isn’t a licensed psychologist and has no psychology PhD,” The Volokh Conspiracy, Jan. 12, 2016

(Case:  Serafine v. Branaman)

News, Editorials, Op-eds & Blog Posts

  1. Editorial, “‘Civility’ no reason to trample Portlanders’ First Amendment rights,” The Oregonian, Jan. 12, 2016
  2. Kevin Drum, “If Money Is Speech, the First Amendment Is a Billionaire’s Dream,” Mother Jones, Jan. 11, 2016
  3. Alexis Kramer, “First Amendment Doesn’t Protect Online Reviews of Lawyer,” Bloomberg BNA, Jan. 11, 2016
  4. Paul Elias, “Wearing Unearned Military Medals Is Free Speech: Appeals Court,” 7: San Diego Military News, Jan. 12, 2016 (see here)

It was 28 Years Ago Today

The Court’s ruling in Hazelwood v. Kuhlmeier (1988) (5-3 per White with Brennan, Marshall & Blackmun dissenting & Kennedy not participating) (ht: Today in Civil Liberties History)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. Paterson, N.J. (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al.
  2. January 19, 2016:  Heffernan v. Paterson, N.J. (see Howard Wasserman SCOTUSblog commentary here)

Review Denied

  1. Sun-Times Media, LLC v. Dahlstrom
  2. Rubin v. Padilla
  3. Hines v. Alldredge
  4. Yamada v. Snipes
  5. Center for Competitive Politics v. Harris
  6. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Town of Mocksville v. Hunter
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Electronic Arts, Inc. v. Davis
  6. Miller v. Federal Election Commission 
  7. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

Here is the Court’s last order’s list

 The Court’s next Conference is scheduled for Friday, January 15, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

Last Scheduled FAN, #92: “Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition

Next Scheduled FAN, #94:  Wednesday, January 20, 2016

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5 Responses

  1. Brett Bellmore says:

    “Who would have thought it possible?”

    Well, duh! Every aspiring censor.

  2. Brett Bellmore says:

    To clarify: The liberal ethos opposing censorship was dead the moment liberals decided they could be the censors, instead of the censored. It was always about who’d be censored, not a principled objection to censorship as such.

    I’m not saying there weren’t genuine liberals who embrace freedom of speech regardless of who’s speaking, or what they’re saying. Obviously there are, and the ACLU has gotten in a lot of trouble with it’s backers for sticking to that position. But they’re the minority of ‘liberals’, and this has been evident all along.

  3. Joe says:

    These “minority” would include those on the Supreme Court (including a leading ACLU lawyer) who voted for rights to produce animal cruelty videos, march outside of funerals (cf. Alito), opposed laws targeting crosses specifically (cf. Ginsburg and Souter with Scalia and Thomas on this point), video games (cf. Thomas), drug speech at schools (cf. liberals with the majority opinion though Alito did split the baby), pornography (cf. various conservative votes) etc. I don’t recall a minority of liberals alone supporting these cases.

    Various of these issues did divide liberals, but then CONSERVATIVES have supported limiting free speech in many cases too. Traditionally, the sort of thing some people appeal to selectively when they think current jurists are making stuff up, lots more speech was more regulated than it is today. This led some people to divide on the proper path. For instance, Zephyr Teachout wrote a book examining the history of campaign regulation.

    And, even today, speech is regulated in various cases. Libel laws still are allowed, there still are ways to invade privacy with speech, obscenity is legally targeted, etc. Liberals and conservatives support various of these things. Censorship, I guess you might call it, which is troubling, but since all speech all the time in any way possible is not the rule (e.g., screaming at 3AM on public streets), some lines have to be drawn. It will be complicated.

  4. Mike Stern says:

    I agree that animal cruelty should not be protected by the First Amendment. Then maybe we could stop those cats from making so many videos.

  5. Douglas Levene says:

    If we’re going to start censoring dangerous and harmful speech, could we please start with Marxism and all its offshoots (Critical this and Critical that, etc.) Is that what Prof. Shiffrin has in mind?