by Michael C. Dorf
My dear friend and colleague Steve Shiffrin has passed away. Steve was a towering figure in First Amendment law, but he was so much more than that. He was a profoundly moral but never moralistic person. I apologize for what will be a somewhat disjointed and rambling remembrance. Steve contained multitudes.
Steve was a values pluralist and a rules skeptic. He did not think that the First Amendment could be reduced to a single value or encapsulated in formal rules. Nonetheless, his signature scholarly achievement--the bumper sticker or elevator pitch version of his oeuvre--can be summed up in a single word: dissent. Steve's books and articles made a powerful argument that the most important (though not the only) purpose of free speech and freedom of the press in a democratic society is to shield dissenters. Like Brandeis said (in his Whitney concurrence) about the framers' supposed view of liberty, Steve "valued [dissent] both as an end and as a means."
That commitment extended beyond abstract principle. After Steve took emeritus status--and even as he continued to write influential books and articles--he undertook a course of study to train himself to represent indigent clients in the local courts. The role of lawyer was hardly unfamiliar. For three decades, Steve had served as counsel to Irell & Minella, principally representing media companies. Thus, when he returned to litigation, it did not take long for free speech clients to come knocking. Steve did not disappoint.
I was lucky enough to work with Steve on a few of his many pro bono cases. One stands out in particular. The U.S. Air Force operates some of its drones out of a base near Syracuse. As a result, a group of pacifists who object to U.S. military policy protest just outside the base. As an act of civil disobedience, one such protester, Daniel Finlay, symbolically, non-violently, and temporarily blocked an entry point to the base. He was arrested. The town court judge before whom Mr. Finlay appeared imposed a protective order on behalf of the base commander in terms that were so vague and overly broad as to make it effectively impossible for Mr. Finlay to participate in fully protected protests without risking contempt. Steve (and I) thought it was ridiculous to use a statute that had been enacted to protect domestic violence victims against their abusers to prevent a pacifist in his 70s from protesting. However, the procedural posture of the case precluded a direct appeal, so we needed to devise a novel mechanism to obtain relief. New York's habeas statute didn't seem to cover Mr. Finlay's circumstances, so we argued to Judge Brunetti of the Supreme Court (New York's general trial court) that the preserved right of common-law habeas or, alternatively, the writ of coram vobis, was available. We won! Steve was delighted that our many hours reading old English cases paid off but he was even more delighted for the client. Steve wasn't just a zealous advocate for Dan Finlay. He had genuine fondness for Dan. When Steve told me about his other clients--including some accused of serious wrongdoing--he always spoke of them with empathy.
Steve cared deeply about individuals and general principles. We wrote a brief together in Elane Photography v. Willock, a New Mexico predecessor to the case now before the Supreme Court presenting a clash between free speech and anti-discrimination law. It was very important to Steve to find a way to vindicate the state's egalitarian goals while also recognizing protection against compelled speech--even when people object to compulsion to speak a view with which he agreed. He crafted the argument that while photography is expressive, taking pictures of a loving same-sex couple, even at their wedding, does not express support for state recognition of same-sex marriage.
Although Steve thought it important to protect free exercise of religion for people of all faiths, including traditionalists, his own religious views were decidedly progressive. He wrote insightfully about the vital role that the religious left could play in bridging divides and in promoting compassionate policies. He lived his progressive religion as well. Steve organized and for many years superintended a program in which Cornell Law faculty provided free legal advice to people attending the community lunches at Loaves & Fishes, housed at an Episcopal church in Ithaca. Steve's personal, professional, and scholarly commitments blended seamlessly.
Steve's moral commitments were related to his legal views. He was a fierce critic of the Roberts Court's claim that the categorical exceptions to free speech were rooted in history--which he derided as the "frozen categories" approach. His own normative views were closer to those practiced by nearly every other constitutional democracy--allowing for greater regulation of hate-speech, for example. He was especially critical of what he regarded as excessive protections for commercial speech. And while he thought that the landmark ruling in New York Times v. Sullivan was clearly correct, he disapproved of the extension of the shield against defamation liability for reporting on so-called "public figures." He thought that the press needs breathing room to cover public officials but that the public's interest in the lives of celebrities was tawdry gossip that did not merit special protection.
That was at least a tiny bit ironic if not a contradiction, because Steve loved gossip. At least once a week, he would poke his head inside my office and ask "what should I know?" I would sometimes tell Steve about a case I had been following or an article I was working on, but over time I came to understand that what he really wanted to know about were the goings-on in the community. And he usually gave as good as he got.
Steve was interested in almost everything, from European political theory to professional sports. We disagreed fervently over whether expanded use of the 3-point shot was good or bad for the aesthetics of basketball. For years, he pored over statistics to perfect his fantasy baseball team. He was an excellent and enthusiastic bridge player.
Steve was utterly devoted to his family. He didn't just love, but was extraordinarily fond of his children Ben, Jacob, and Seana. It was no small source of satisfaction to Steve that, in addition to her contributions to philosophy, much of Seana's work concerns free speech. Meanwhile, Steve's partner Neesa returned Steve's affection in kind, sometimes feigning exasperation with his few foibles.
Steve warmly welcomed me and Sherry to the Cornell and Ithaca communities fifteen years ago. I was thrilled to join the constitutional law casebook he co-edited, even though I came on as Steve was ceding his chapters to Fred Schauer. I have profited enormously from working with Fred, Jesse Choper, and Dick Fallon on subsequent editions. Even so, the first edition on which I worked--which lists Steve's name as well as mine--holds a special place.
The world is that much darker for having lost Steve's light. I shall miss him terribly. Indeed, I already do.