Questions for Analysis and Discussion
of Assignment #5:

Steven Shiffrin, What's Wrong with the First Amendment?

Robert Corn-Revere, "Certainty and the Censor's Dilemma"

 

Query: In Chapter 3 on "Race," Steven Shiffrin claims at 35: "The legal toleration of racist speech is incompatible with the nation's commitment to equal citizenship."

Is that true? Is the notion of equal citizenship, fostered by the Equal Protection Clause, inherently in tension with a First Amendment that tolerates racist speech by private individuals and associations?

Is equality in the realm of ideas not furthered by a strong aversion to a content discriminatory regime of governmental regulation?

 

Query: Shiffrin addresses the need of the First Amendment to be solicitous of the victimized target of racist speech: "False speech, as John Stuart Mill insisted, can create a livelier impression of truth, and it can stimulate responses that contribute to the democratic dialogue. Finally Nazi speech undeniably makes it clear that some Nazis are in our presence. But I find it hard to conclude that this limited marketplace value justifies the imposition of trauma on the survivors." (41)

Why presume that the targets of racist speech are "victimized"? Is it not just as likely, and much more psycho-socially desirable, for the targets of racist speech to be impelled to counter-speech? In that sense, are the targets "empowered" more than "victimized"?

"Sunshine laws" are regulations requiring openness in government or business: meetings, records, deliberations, and other official actions are made available for public observation, inspection, participation, and response. The underlying theory of such laws is that visibility "in the sunshine" promotes transparency and accountability. Can the same thing not be said about First Amendment coverage of racist speech? Is the constitutional policy of bringing hate speech out into the "sunshine" not ultimately a salutary one?

 

Query: In Chapter 4 on "Sex," Steven Shiffrin argues that "the First Amendment protects a billion dollar industry (in pornography) glorifying and sexualizing the subordination of women. . . . When pornography becomes a significant form of sex education and sexual pleasure for men, it follows that many men will regard women primarily as sex objects and seek to enjoy their pornographic fantasies in actual encounters with women. The courts have yet to provide an adequat explanation as to why this harmful speech should be tolerated, let along constitutionally protected." (47)

Shiffrin's charge that pornography deserves no First Amendment protection because it is the embodiment and the cause of personal harms would be a compelling argument to the extent that it is true. But is it true? Is not the basic point the dispute about causality? Consider the countarguments of others that may be equally or even more compelling:

Ronald Dworkin: "If [the harm] claim could be shown to be even probable through reliable research, it would provide a very strong though not necessarily decisive argument for censorship. . . . [N]o reputable study has concluded that pornography is a significant cause of sexual crime."

Nadine Strossen: "[T]hat exposure to sexist, violent imagery leads to sexist, violent behavior [is a claim for which] there is no credible evidence."

Elizabeth Fox-Genovese: "The proponents of curtailment would have an easier time if it could be demonstrated that pornography actually causes, or even substantially contributes to, the perpetration of . . . violent crimes against women. . . . Sadly, such proof is lacking."

Shiffrin's answer to his critics is to endorse the arguments of anti-pornography feminists Catharine MacKinnon and Andrea Dworkin that "we need not wait for science to demonstrate the obvious effects that women testify to and psychotherapists discuss every day. The failure of social science to be able to demonstrate the links may say more about social science than it does about human behavior." (49) What do you think about this argument? Should a constitutional liberty ever be restricted on a theory of harm that is empirically unproven? Why should government be empowered to override the freedom of speech without any scientifically grounded empirical evidence of a strong link between pornography and sexualized harms?

 

Query: Shiffrin concedes that "[i]t has always been something of a mystery as to why the obscenity exception exists." (54) He observes: "Obscenity regulation licenses point of view discrimination. It demands that distinctions be made between normal and abnormal sex; it insists that distinctions be made between speech that is patently offensive and speech that is not. It requires that distinctions be made between types of speech that have serious value and those that do not. . . . Moreover, the obscenity exception has been supported without a showing of harm or a theory of morality that connects with the defintion of the exception." (56) From these observations, Shiffrin concludes that if obscenity can be categorically excluded from First Amendment protection, so should pornography be excluded.

Does Shiffrin's conclusion follow persuasively from his observations about the obscenity doctrine? Does it beg the question to base the constitutionality of pornography regulation on the highly suspect exclusion of obscenity from First Amendment protection? Is not the essential question whether the obscenity doctrine should not be overturned when there is serious doubt as to its continuing legal validity?

Consider the technological realities in which the commercial markets for obscenity and pornography operate today. As Collins & Skover declare in The Death of Discourse, "no government wants to admit that it no longer has the means to control pornography. The good old days when it was possible to burn books and destroy printers' plates are gone" and "nothing is commercially obscene unless the captains of commerce fear that it manifestly repulses mass tastes or offends mass values. Money matters more than morals." (147-148) If effective government regulation of obscenity and pornography is virtually impossible within our Internet culture, does it make sense to craft an exception to First Amendment protection that is pragmatically indefensible?

Consider the advanced capitalist and highly commercialized culture within which obscenity and pornography exist today. As Collins & Skover assert in The Death of Discourse, "Pornography is but another commodity in a capitalist culture that exploits sexual fantasies to feed consumerist desires. If some pornogrphy is sexist and misogynist, it reflects the larger culture of such mass messages. Simply observe the day-to-day fare on commercial television and radio, in magazines and on billboards, and in our ordinary conversations and social dealings. . . . Pornography is to the mass commercial state what blood is to the body; efforts to with it 'woudl be futile because pornography is not some wart on the surface of capitalist culture' but is at the heart of that culture. Mindful of the culture's life flow, feminist author Wendy Kaminer was blunt: 'If society is as sexist as Andrea Dworkin and Catharine MacKinnon claim, it is not about to adopt a feminists agenda when it sets out to censor pornography.'" (182-183) Isn't a great deal more than pornography put into issue by Steven Shiffrin's harm principle? Is he ultimately challenging the socio-economic structure at the base of our republic of eroticized commercial images? Anti-pornography is the practice for him, but is anti-capitalism the theory? What are you to make of this?

 

Query: In Chapter 5 on "Violence," Steven Shiffrin comes across at his most judgmental, moralistic, and paternalistic. Those who watch animal cruelty films "are sick, sadistic (or masochistic), and twisted." (63) "[T]he commercialization of the depictions of animal cruelty appeals to the baser side of human beings, a side inconsistent with their dignity." (63) And violent video games "are themselves morally dubious and are bereft of redeeming value." (62) To his credit, Shiffrin himself concedes that his assessments could be considered "excessively paternalistic and not within the scope of appropriate government concern." (63)

Whether or not you agree with Shiffrin's evaluations, is governmental paternalism a proper basis for regulation of these phenomena?

What responses would Robert Corn-Revere likely offer to Shiffrin's call for governmental regulation based on moralistic judgmentalism?

 

Query: Similar to his argument on pornography, Steven Shiffrin argues for extension of the First Amendment obscenity doctrine's dictates to commercialized depictions of violence. He bemoans the Court's refusal in Brown v. Entertainment Merchant Association to expand the obscenity exception to cover graphic violent materials. (71) Considering the dubious validity of the obscenity exception, however, is it truly unwise for the Court to refuse to extend that doctrine's reach beyond the obscenity category itself?

 

Query: Similar to his argument on pornography, Steven Shiffrin reiterates his view that "First, we should not have to wait for social scientists to meet the difficult task of showing causation in a multifactor environment. It is massively counterintuitive to claim that games like Manhunt and Postal do not desensitize children to the horror of violence. Second, even if such games did not cause violence, it is dubious that they contribute in a positive way to the development of children." Should First Amendment doctrine be so cavalier about the scientific validity of claims of harm from participating in violent video games? Especially in a cultural context that tolerates a vast universe of violent depictions in TV, film, video, magazines, and books -- all of which are generally accessible to children? Should Brown open the First Amendment door to arguments about the elimination of violence in communications media generally? What kind of argument against violent video games can be made in a culture that trades in images of violence for entertainment pleasure, that traffics in the commerce of endless amusement, and trumpets individualism as the governing ideology?

 

Query: In Chapter 6 on "Commerce," Steven Shiffrin takes on America's highly commercialized and consumerist culture as a whole when he attacks First Amendment protection for commercial advertising. He declares: "[I]t is unclear why this deluge to manipulation should enjoy constitutional protection. When US advertisers spend in excess of $180 billion dollars on media advertisements in a single year, they inevitably promote a materialistic, hedonistic culture. It encourages human beings in that culture to focus on possession objects (and to revel in sensations) at the center of their lives. . . . So understood, the exclusion of commercial speech from the scope of the First Amendment comports with the Civic Republican theme of the Constitution. . . . Commercial advertising is deeply at odds with the goals of a republican form of government." (79-81)

Even conceding that contemporary American culture has deviated from the civic republican idealism that the Framers purportedly valued, is the American spirit of materialism, self-gratification, and self-pleasuring not entirely consistent with the advanced capitalistic and commercialistic culture that we have become? Does the spirit of Civic Republicanism ring true for modern America, which treasures individualims over communitarianism?

How realistic is it to imagine that our highly commercial and consumerist culture would not value and protect commercial speech? Do you agree with Collins and Skover, who argue in The Death of Discourse: "In this culture, the law of free speech necessarily bows to the demands of culture. Madisonian ideals slouch toward Madison Avenue. If the First Amendment can no longer promote its traditional [civic republican] values, it is because the commercial marketplace no longer especially values them." (119)?

 

Query: In Chapter 7 on "Democracy," Steven Shiffrin contends that the Supreme Court has interpreted the First Amendment in a fashion that undermines any legitimate notion of democracy. As it now permits the wealthy and business corporations to spend unlimited sums of money to influence the outcome of election campaigns, the First Amendment has fostered the twisted notion that a fusion of unbridled capitalism and liberty is democracy, and dismisses the equality concept that the government may restrict the speech of some elements of our society to enhance the relative voice of others. As a result, our First Amendment campaign finance doctrine perverts the civic republican philosophy of a democracy committed to the promotion of the general public good or interest.

Floyd Abrams, the eminent free-speech lawyer, believes that the Buckley and Citizens United rulings should be "celebrated, not mocked." in a 2013 SCOTUSblog interview, he described his view: "Suppression of speech, particularly but not exclusively political speech, is inconsistent with what the First Amendment is most clearly and importantly about. It is the point of the First Amendment to prevent government from determining who can speak and what is worth saying." Has Abrams' fervent fidelity to the First Amendment become akin to an "idolatry"? Or is Shiffrin a quintessential example of a liberal who has lost faith in his own liberality, and for whom the First Amendment has become ideologically intolerable? Consider this: beyond the back-and-forth of such claims and counterclaims, does it all come down to whose message is being banned and whether we (traditional liberals, modern progressives, or today's conservatives) disagree with it enough to silence it? Did Nat Hentoff hit the proverbial nail on the head when he quipped: "free speech for me -- but not for thee"?

President Calvin Coolidge declared that "the business of America is business." If that is truer than not, is it unrealistic or improbable for the Supreme Court majority to interpret the First Amendment so as to protect the political views of the business class as important to the public interest in our system of democracy?

What is gained by critiquing our modern culture of largely unbridled free enterprise and individual economic liberty according to the communitarian values of Civil Republicanism that America largely does not endorse?

 

Query: Robert Corn-Revere charges Steven Shiffrin's campaign against First Amendment "idolatry" and in favor of judicial ad hoc balancing of speech and equality interests as nothing more than "censorship." Moreover, Corn-Revere argues that Shiffrin would be "in denial" over his censorial stance. "That's not speech, they sniff, or, at least, not the kind of speech the Constitution's Framers had in mind. Who's a censor? I'm not a censor." (35) Do you agree with Corn-Revere's characterization? And is he correct that Shiffrin is likely to be in denial about being a censor?

 

 

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