Anderson, Brettschneider, and Shiffrin: What a Trio.

​​Sorry if I jump in between ideas a bit too quickly. Just trying to get it all figured out in my head!

Shiffrin x Brettschneider: Shiffrin states early on that constitutional content does not track justiciability (993). But if constitutional content does not track justiciability (aka certain constitutional violations like government officials lying / violating the First Amendment are acknowledged to exist but are nevertheless nonjusticiable), I'm still left confused on what the normative OR institutional point of having a Supreme Court is? Isn’t the foundational idea of judicial review that the Court exists precisely to interpret and enforce constitutional limits, particularly against executive or legislative overreach? If constitutional provisions or principles are beyond the Court’s reach and enforcement lies elsewhere, where lies its core role? Shiffrin seems to suggest that the Supreme Court still has a role in clarifying and promoting constitutional ideals even when it can’t offer direct remedies (other than dealing with cases where government speech leads to actual, demonstrable harm to speakers whose speech is suppressed), but I'm not fully clear on that (996).

In a similar vein, Brettschneider contends that formal institutions, whether it’s the judiciary or something like the general system of checks and balances, frequently falter when confronted with authoritarian presidents. With his account of John Adams and his suppression of dissent, I feel this ties in perfectly to Shiffrin’s analysis of Trump’s rhetoric, branding media unfavorable to him as fake news and attacking the legitimacy of criticism surrounding his person (thereby denying the First Amendment as governing law just as Adams did). I really like this modern parallel because I feel it shows a striking convergence: both authors seem to suggest that, when presidents weaponize constitutional norms against their critics, the Supreme Court is powerless. In this sense, I think Shiffrin would probably agree with Brettschneider.

I do think that both thinkers have a sort of “We the People” conception of how to give real force to Constitutional guarantees and such while checking authoritarian encroachment. When Shiffrin refers to the "nonjusticiable aspects of the US Constitution" as "not just aspirational" (993), I think she might agree with something along the lines of Brettschneider's more explicit idea that the ultimate responsibility for upholding democratic norms lies in the hands of the people. While she mainly references private enforcement invoking requirements for legal and lawful activity to refuse to host unconstitutional speech and reclaim nonjusticiable constitutional norms in the second part of her argument, I imagine she may also endorse something like the constitutional constituencies Brettschneider calls upon (ex. "...the First Amendment... [designed] in large part to provide citizens with a mechanism to check governmental abuse..." (1000)). 

But just reflecting on what she says in her article, here's where I see this turning into more of a Shiffrin x Anderson situation.

Just as Shiffrin notes, I do see how calling private companies to develop and enforce their own understanding of the Constitution (1015 and 1016) may be dangerous. I think this danger reflects Anderson's very similar sentiment in identifying her concept of private governments as dangerous. Referencing Aria's blog post about algorithmic choices of companies and how they dominate our speech in many ways, it seems as though opening up the option for companies to determine their own understanding of the Constitution might create more problems than it solves. If we open the door for these companies to remove / refuse to host speech, what would stop them from compelling speech (forced ads, algorithms, creation of epistemic bubbles, etc.)?

Anderson’s analysis of private government identifies a key danger in allowing entities not democratically accountable to enforce their arbitrary will onto others. In her case, this creates a hierarchy between employers over employees, but if we extend this framework to the digital public sphere, we might see users as occupying a similarly subordinate position to the tech executives and companies that control speech infrastructure. Entrusting them with the power to set the rules, interpret and apply constitutional norms, and determine whose voices are elevated or suppressed (all without meaningful input from those affected) risks entrenching unaccountable hierarchies. Much like employees in a workplace with no democratic recourse, users may become subject to the arbitrary will of the higher-ups of these companies. The obvious difference here is that users are not nearly as tied down to platforms / companies as employees. Or are they? I personally would find it really hard to abandon Instagram fully, but maybe that's just me being a screen-addicted young person. To me, the question of what we are meant to do remains, despite Shiffrin's discussion of possible ways to mitigate these issues. Interestingly, I do think she gestures to Brettschneider's idea at the end of this section as she indicates that "independent nonprofit groups dedicated to the rule of law and freedom of speech" could play a role. But then my question from our discussion with Brettschneider remains: If, as Putnam argues in “Bowling Alone,” our social capital is in decline and our civic networks are eroding, how realistic is it to rely on groups like constitutional constituencies to check power in a polarized, fragmented public sphere?

On another line of thinking, in alignment with our discussion at Pizza N' Such about modern developments and cultural change in relation to communication and lying, Shiffrin recognizes that modern technologies have eliminated “prior natural limitations of size, time, and the judgements and feedback of others”, which “may have indirectly restrained some of the dangers of misinformation… and hate speech” (992).

In recognizing this, I find the idea that we need to “reexamine some of our convictions about First Amendment doctrine and free speech culture… in light of these developments” really, really compelling (992). This reminds me quite a bit of Anderson's idea that we need to reexamine our convictions about free market ideology and capitalism. Just as, originally, pro-market thinkers had reason to believe free markets would help them in liberation, perhaps we as a society also had reason to believe in a more relaxed, flexible First Amendment doctrine and free speech culture. But just as Anderson argues in her book, technological and cultural developments have shifted the foundations and context of our ideas, and thus our convictions should be critically reevaluated and recalibrated.

In my mind, Anderson’s notion of private government in which there is “unaccountable dominion” of “gift-givers” over “recipients” (19) is a strikingly similar account to Shiffrin’s ideas, specifically in that there is unaccountable dominion by authoritarian executives (/ government officials) over free speech. But maybe I'm reading it wrong.

P.S. By the way, did you guys know there's a pizza spot called The First Amendment Pizza Joint in Claremont?? Crazy coincidence!