No Tiers, Alvarez, Interpretation
The Supreme Court in practice has accorded certain kinds of speech, in particular political speech, the highest level of protection, in effect deploying a system of tiers of protected speech, with commercial speech entitled to comparatively less protection, and other forms of speech, e.g. hate speech, entitled to virtually no protection at all. This tiered approach might be thought to be implicit in the approach to free speech that focuses primarily on securing "the conditions of a functioning, often deliberative, democracy." (82) It is a striking feature of Shiffrin's thinker-based approach that it seems to do away with tiers (92b, 93t). The rationale is straightforward. What is it that is important about speech? It is the main avenue through which we develop as the distinctive people that we are, and to value persons is to make sure that this avenue remains open in every dimension that is important to developing as a person, whether religion, or science, or politics, or art. This also captures what is so objectionable on the thinker-based view about lying and deception -- these are attempts to distort this vital avenue -- to corrupt the pathways from us to others and from others to us, such that they cease to function effectively as avenues for developing our authentic agency, such that we can make free and informed choices. If I vote for Alvarez (US v. Alvarez, pp. 120ff) in part because of his service to his country and the integrity of character this demonstrates, but his claims about his record of service are a lie, hasn't the legitimacy of my choice been undermined? My evidence was false, and his lie suggests a profound lack of integrity. Choice or consent that is not informed does not seem to be legitimating, nor can I be expected to fact check such claims by candidates about their records. Shouldn't such lie be punishable by law, as are perjury (lying under oath) and defamation (lying and deceiving to harm another person)?
Also, consider the 1st Amendment, in particular "Congress shall make no law...abridging the freedom of speech." Only Congress? So can the President abridge speech through executive order? Also, no law? What about laws against perjury and defamation and reckless endangerment (shouting fire in a crowded theater)? Shouldn't we pass laws "abridging" such speech, and don't we? And what is abridging, anyway? Just not preventing, or does it include not punishing for, and preventing others from preventing? Also, just speech? So letters and emails (writing) are fair game? Clearly such a piece of text is not self-interpreting, but what is the appropriate approach to interpreting it? Do we need views about why speech is important to guide such an interpretive project? Do we need views about how speech fits in with the other rights and liberties the Constitution confers? If the Founders held views, perhaps competing views, what role do they play? What if in some areas (mass direct social media speech) they held no views at all? Is Shiffrin's claim in part that the thinker-based approach provide the best theory for interpreting this part of the text of the Constitution?
Hi Prof. Hurley,
ReplyDeleteI think laws against perjury, defamation, and reckless endangerment can be seen as protecting freedom of speech and not abridging it. If those lies were legally permissible, then the foundation for trust and communication within courts, emergencies, or other contexts would break down, and freedom of expression, or maybe more aptly freedom of communication, would. Shiffrin's arguments for the importance of freedom of speech rest on the importance of expression as a form of communication used as a tool for moral development and in this way, laws such as those you bring up help expression instead of harming it, even though it might look that way at face value. This could be connected to a Ripstein-and-roads style argument where no one can have freedom of expression until public infrastructure, such as laws against perjury and defamation, has been established.
So abridging freedom of speech/expression would look like not securing the public infrastructure necessary for individuals to be able to trust and communicate, such as limiting protection of the press to the point that they not only can not lie, but can not publish anything controversial or disputed because they might be sued for printed false information. Which would look like overturning US. NYTimes and the standard of actual malice and reckless disregard for the truth. Which would be the judicial branch, not Congress, but that's a question for a different, much longer, blog post.