*** Updated Nov. 9: Video now available here.
by Michael Dorf
This afternoon I’ll be on a panel to mark the publication (by Cambridge University Press) of the new book by my colleague Prof. Steven Shiffrin, What’s Wrong With The First Amendment? We will have a moderator (my colleague Prof. Aziz Rana), 20-minute presentations by each of three commentators (Columbia Law Professor Vincent Blasi, UCLA Law & Philosophy Professor Seana Shiffrin, and me), an opportunity for the author to respond to the commentators, and then Q&A from the audience.
I much enjoy these events, whether I’m the object of discussion (as, for example, Prof. Colb and I were in April) or, as I will be today, one of the commentators. They highlight what I regard as one of the best features of the academy: We “celebrate” our respective works by engaging with them seriously, including critically. Accordingly, after I summarize the book, in this post I’m going to raise some questions that I intend to pose for Prof. Shiffrin.
Shiffrin’s answer to the question that titles the book has two main parts. First, he contends that in many respects, modern First Amendment case law over-protects harmful speech. The chapters focusing on over-protection feature some older and some more recent cases. The case law (Shiffrin says) under-protects justice (in the sense of defendants’ rights against harmful publicity) and privacy, while over-protecting cruelty and violence, racist hate-speech, pornography, commercial speech, and funding for election-related purposes. With the exception of commercial speech, Shiffrin thinks the Court is right to afford some protection to the speech interests at stake in these conflicts, but he criticizes the justices for what he calls “free speech idolatry.” In each of the chapters on these topics, he concludes by canvassing alternatives drawn from European, Canadian, and other democratic legal systems to show that it is possible to strike a sensible balance between speech and other important values with which it can conflict in particular circumstances.
Second, Shiffrin argues that Supreme Court case law under-protects the most important free speech interest: the right to dissent and criticize the powerful. He sets out a view that Shiffrin fans will recognize from his 1990 book The First Amendment, Democracy, and Romance.
Shiffrin criticizes the Court’s willingness to uphold content-neutral regulations of speech that have a substantial impact on the ability of ordinary people to make their voices heard. He thinks that the New York Times v. Sullivan limits on defamation law are too stingy in how they define public figures (although too loose in some respects). He is especially critical of case law accepting strict limits on student speech and employee speech. He would like to see protection for the institutional press under the free press clause. And with respect to religion, Shiffrin is an unreconstructed liberal critic of Employment Division v. Smith, approving of the Religious Freedom Restoration Act even as he thinks that Burwell v. Hobby Lobby was wrongly decided (albeit a difficult case). He also thinks the Court is insufficiently sensitive to the concerns of the non-religious and members of minority religions in construing the Establishment Clause. In this part of the book, however, Shiffrin finds little solace in comparative law. While he thinks that the SCOTUS under-protects the weak and minorities in its speech and religion jurisprudence, he thinks that Europe actually does a bit worse in this regard.
What accounts for American free-speech idolatry relative to other countries? Shiffrin disagrees with the conventional claim that it is simply a manifestation of the greater libertarianism of the U.S. relative to the rest of the democratic world. As he notes, prior to the mid-1950s, U.S. First Amendment doctrine was not nearly as libertarian as it is now. He attributes free-speech idolatry to a confluence of factors. Liberals were drawn to it by a revulsion against McCarthyism and the value of free speech for the civil rights movement. Conservatives came aboard a bit later, partly to protect commercial interests, partly in response to what they perceived as political correctness, and partly because some conservatives (especially Justices Scalia and Thomas) were attracted to formalism more generally.
Shiffrin is highly critical of the “frozen categories” approach of the Roberts Court, articulated most clearly in United States v. Stevens and Brown v. Entertainment Merchants Ass'n. The Court said that it would not expand the existing categories of unprotected speech to include depictions of violent cruelty to animals (in Stevens) or violent video games sold to minors (in EMA). And if speech does not fall within a proscribable category on the list, then content-based restrictions on it are subject to strict scrutiny. The underlying jurisprudential theory behind the frozen categories approach appears to be originalist: The First Amendment protects the “freedom of speech.” That term should be given its original meaning, which excludes from protection those categories of speech that the framers regarded as unprotected but not other, new categories.
However, as Shiffrin points out, the current categories do not closely correspond to the categories as they existed at the Founding or (insofar as relevant to state laws) when the Fourteenth Amendment was adopted. Traditionally, obscenity was a much broader category than allowed under modern case law, as was defamation. So the Roberts Court can’t really claim a historical grounding for the particular categories that are unprotected. Moreover, paralleling a move that critics of originalism (especially H. Jefferson Powell in an important 1985 Harvard Law Review article) have made more generally, Shiffrin questions whether there is a historical basis for assuming that the list of unprotected categories would be frozen at the time of the Founding.
These are effective criticisms, but they raise the question of what role, if any, Shiffrin thinks the text and history of the First Amendment properly ought to play in resolving clashes between free speech (or free press or free exercise of religion) and other values. He approvingly quotes Mark Tushnet in noting that with respect to the First Amendment, the constitutional text belongs at the “back of the [con law case] book.” Shiffrin goes on to say that the language of the First Amendment “has little explanatory force” in accounting for the body of doctrine. That’s probably right as a descriptive matter, but what about normatively?
Let me try to make that concrete. In Chapter 2, Shiffrin criticizes Nebraska Press Ass’n v. Stuart on the ground that the Court gives insufficient weight to the right of a criminal defendant to a fair trial in upholding the right of the press to publish information that could prejudice the jury pool. It’s a fair point, but one wonders what work, if any, is being done by the fact that Nebraska Press Ass’n pits the First Amendment against the Sixth Amendment.
In Shiffrin's view, does a defendant have a stronger claim to overcome the right of press access because this is a fairly unusual case of one constitutional right clashing with another? (Such cases are unusual because nearly all constitutional rights are protected only against the government, so typically a constitutional right will clash with a private interest given recognition by a statute or judge-made doctrine but not by the Constitution.) Or are constitutional rights simply one possible source of value? Shiffrin treats Nebraska Press Ass’n more or less the same way that he treats other cases he criticizes: he objects to the Supreme Court giving too much weight to speech/press and not enough weight to another value. But if the Sixth Amendment qua Sixth Amendment isn’t doing any real work for Shiffrin, then it is hard to see how the First Amendment qua First Amendment is doing any work either.
I can boil this down to a question for Shiffrin: Would your view of the proper outcome of any of the cases you discuss be any different if, instead of the First Amendment and the rest of the Constitution we have, we instead had a simple authorization to the courts to strike down laws that are “offensive to human dignity” or “bad for democracy and human rights, all things considered”? If so, how? If not, then aren’t you really saying that the text of the First Amendment doesn’t even make it into the back of the book? Maybe it doesn’t even make it into the book.
That leads me to a related observation about values and morality. Shiffrin disapproves of the Seventh Circuit ruling (which was summarily affirmed by the Supreme Court) in the Hudnut case. Although he thinks that the Indianapolis definition of pornography was a bit too broad, he nonetheless thinks that the basic thrust of the ordinance was acceptable because he shares the view of its drafters (Catharine MacKinnon and Andrea Dworkin) that pornography has at most slight value and does serious harm.
At the same time, however, Shiffrin dislikes the existing First Amendment category of obscenity, which is based on notions of decency and sexual morality rather than avoiding harms like rape and subordination of women. Shiffrin notes that one possible rationale for obscenity doctrine is that it targets masturbation. But, he says, such a rationale cannot justify modern obscenity doctrine, which doesn’t cover sexual materials that appeal to a non-prurient interest in sex, and thus allows a great deal of masturbatory material to qualify as non-obscene.
Yet, as a historical matter, traditional obscenity doctrine was much broader. Much of what today would be considered as non-prurient would have been proscribable obscenity before the modern doctrine emerged. So masturbation could have been one of the targets of traditional obscenity laws.
Let’s put that aside. Shiffrin is less interested in the historical justification for the obscenity doctrine than in whether it is currently justified, and I agree with him that a state interest in stamping out masturbation is grossly underinclusive with respect to the current doctrine.
But Shiffrin goes further. He says that the state lacks a good reason to target (directly or indirectly) masturbation. He approvingly quotes a Catholic theologian who deems masturbation harmless. I don’t disagree, and I doubt that many readers do.
Meanwhile, however, Shiffrin himself is quite moralistic in other respects. He disapproves of consumerism. He laments the public’s “tawdry” appetite for gossip, which he thinks should not be elevated to the status of a constitutional right. What underwrites the judgment that masturbation is harmless self-satisfaction whereas consumerism and gossip are degraded? If we begin with the text of the First Amendment, it would seem that gossip would have a stronger claim to protection than masturbation, which is not, after all, speech.
I’ll conclude by sketching what I think is the answer Shiffrin would likely give to my essentially jurisprudential challenge. He is basically a legal realist, at least with respect to the First Amendment. He looks at the hodgepodge of doctrines we have and concludes that they are not plausibly derived from the text and/or history of the First Amendment. Nor does the Court avoid weighing free speech against other values, he would say; it simply reaches the wrong conclusions by too often attaching too much weight to free speech and too little weight to other important values. So his approach is no less connected to the First Amendment’s text and history than the Court’s, and it has the further virtue of enabling legislators to promote important values not necessarily enshrined in the Constitution while asking the courts to intervene to protect democracy and fundamental rights.
Is that a sufficient answer? Maybe not, but it’s a better answer than anything the Supreme Court has provided. I'm eagerly looking forward to the panel.