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4 - Sex
- from PART I
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 05 September 2016
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- 06 October 2016, pp 47-61
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Summary
Like racist speech, pornography is incompatible with the nation's commitment to equal citizenship. In addition to attacking persons on the basis of an irrelevant characteristic, pornography makes the subordinate status of women sexually attractive. Indeed, it erotizes the domination of women including violence against women. In short, the First Amendment protects a billion dollar industry glorifying and sexualizing the subordination of women. This protection is inconsistent with the kind of public culture a just society needs to foster if it is to maintain a semblance of legitimacy. Here too, it should not be surprising that pornography causes violence and discrimination against 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 adequate explanation as to why this harmful speech should be tolerated, let alone constitutionally protected.
A particularly important pornography case concerns an Indianapolis antipornography ordinance that was drafted by Andrea Dworkin and Catharine MacKinnon. The Indianapolis ordinance defined pornography to include the “graphic sexually explicit subordination of women through pictures and/or words that also includes” one or more types of depictions thought to be particularly problematic such as women being “presented as sexual objects who enjoy pain or humiliation” or “experience sexual pleasure in being raped”; women presented as “sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts”; “presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised or hurt in a context that makes these conditions sexual.” The ordinance included other examples (some too far reaching in my view), but the common theme of the examples was that it sought to prevent the eroticization of sexual domination particularly, but not exclusively, when that domination took a violent form.
A similar ordinance had been proposed and debated in Minneapolis. In support of the ordinance, as Paul Brest and Ann Vandenberg report, many women testified that they had been forced by men to submit to degrading and painful scenarios taken from pornographic films and magazines. For example, one woman testified that she was seen walking in the woods by three deer hunters who were reading pornographic magazines.
PART III
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 157-158
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Dedication
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp v-vi
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5 - Violence
- from PART I
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 62-78
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Summary
Pornography is not the only form of entertainment involving violence or depictions of violence. Pornography is part of a larger entertainment industry that includes some forms of violence or depictions of violence that deserve no constitutional protection. Indeed, I count their protection as exhibit A in support of the contention that the United States has succumbed to an indefensible form of First Amendment idolatry. In particular, I have in mind the depictions of actual animal cruelty for the entertainment of consumers and the sale of gruesomely violent video games to children. These forms of entertainment are harmful in their creation (or lead to harm), are themselves morally dubious, and are bereft of redeeming value. Despite this, the Supreme Court treats these forms of entertainment as valuable speech, speech that cannot be regulated without meeting extremely demanding requirements.
Turning first to depictions of animal cruelty, the federal statute prohibiting the depiction of animal cruelty for entertainment purposes is based on the moral view that it is wrong to treat animals in an inhumane way, and it is wrong to market displays of their suffering for commercial gain. The United States has much to be ashamed of with regard to its treatment of animals. It permits unspeakable cruelty in the treatment of and slaughtering of animals for food. The consumption of animals treated in this way raises serious moral issues (indeed, many argue that the consumption of animals itself raises serious issues apart from cruelty in their treatment). Many consume meat despite knowledge of the horrible ways in which they have been treated. Regardless of the morality of that consumption, it strikes me that those who buy video tapes of animal cruelty precisely because they enjoy witnessing the torture of animals are sick, sadistic (or masochistic), and twisted.
Immanuel Kant once argued that the immorality of animal cruelty was not based on the suffering of animals, but on the brutalization of human beings. Kant thought we owed no direct duties to animals because they lacked human dignity. This strikes me as a morally impoverished view. But Kant was right to argue that human participation in cruelty to animals is brutalizing and inconsistent with human dignity. In addition to the needless harm to innocent animals, the commercialization of the depictions of animal cruelty appeals to the baser side of human beings, a side inconsistent with their dignity.
Acknowledgments
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp ix-xii
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Introduction
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 1-10
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Summary
I have been teaching classes in the First Amendment for nearly forty years. Students love the First Amendment. Like the overwhelming majority of their fellow citizens, they celebrate not only its protection of a basic human right, but also its role as a part of their identity as Americans.
There was a time when those celebrations were justified, but I believe we have come to a point when it is thinkable that the First Amendment does more harm than good. Don't get me wrong. The First Amendment does a lot of good. At its best, freedom of speech promotes many values including liberty, freedom, equality, tolerance, respect, dignity, self-government, truth, justice, and associational values, along with cultural and communitarian values. Perhaps most important, it protects dissent, speech that criticizes existing customs, habits, traditions, institutions, and authorities. Indeed, it protects criticism of public officials and public figures to a greater extent than other countries in the world. It even protects advocacy of illegal action so long as it is not directed to incite and likely to incite and produce imminent lawless action. It could do more to protect dissent than it does and it should. I will argue in Part II of this book that the First Amendment fails to protect dissenting speech as much as it should and that its failure to protect religious minorities is even more pronounced than its failures in protecting dissent.
The main problem with the First Amendment, however, is that it overprotects speech. We take pride in protecting the speech we hate and in tolerating speech that offends. But no one justifies regulating speech on the ground that we should hate it, and regulating speech merely on the ground that it offends is a nonstarter. But speech that causes significant harm (or unreasonably risks such harm) ordinarily should be regulated to avoid the harm, and that kind of speech should not be exempted from regulation because it is also hateful or offensive.
Free speech doctrine downplays the harm that speech can cause. Indeed, its most problematic assumption is that free speech is considered to be so valuable that it almost always outweighs other values with which it comes into conflict. Of course, free speech is ordinarily valuable, but there is no good reason to assume that it invariably should outweigh other values.
10 - How Did We Get Here?
- from PART III
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 05 September 2016
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- 06 October 2016, pp 159-183
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Summary
We have seen that Western countries treat speech regulation in far different ways than the United States. For the most part the approaches taken in Europe and Canada are similar to those taken in Israel, South Africa, and other countries. We have yet to explore why the United States is so different from the rest of the world when it comes to protecting speech. To put it another way, we have not yet explored the phenomenon of US free speech (including free press) exceptionalism. Many point to deep-seated cultural differences. I want to explore that, but I will ultimately argue that the differences arise from political, ideological, and interpretive disagreements – disagreements that are historically late-breaking.
Most of the literature on US exceptionalism has emphasized general cultural differences between Europe and the United States. And, of course, the differences between the United States and Europe range far beyond free speech. Consider our constitutional protection of the right to bear arms, our use of the death penalty, our failure to guarantee rights of food, clothing, housing, or medical care (and the degree we fall short in meeting these needs even for children), and the impossibility that an openly atheistic person could be elected to high political office. In assessing these differences, we might suppose that these general differences arise from large cultural distinctions that also affect free speech. Beyond freedom of speech, in terms of differences, as Stephen Gardbaum observes,
the standard list of differences includes economic systems (free market capitalism versus a mixed economy), political traditions (U.S. antigovernmentalism, top elective offices open to those with little or no political experience, and the absence of both a strong socialist movement and a professional, high-level civil service), work ethics and culture, moral and personal values, the contemporary roles of religion and extent of religious belief, attachment to firearms, unique team sports, senses of humor, and forms of self-presentation. The explanations of these differences are, of course, legion and much disputed, but they include the United States’ newness, existence and status as the product of the first successful colonial revolution, geography, political isolation and isolationism, a long period of buoyant economic self-sufficiency, and demographics as a heterogeneous and non-organic immigrant society.
Contents
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp vii-viii
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7 - Democracy
- from PART I
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 95-112
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Summary
It is deeply problematic that speech is privileged over privacy, fair trials, racial and sexual equality, and the public health, to take a number of the examples we have discussed. But it may be even more bothersome that the First Amendment is interpreted in ways that are at odds with any sensible understanding of democracy.
I do not mean to suggest that the First Amendment is the only problem by any means, but its interpretation has deepened our democratic difficulties. Even before the Court decisions I criticize in this chapter, it has been the case that our “democracy” has given undue weight to the input of wealthy individuals and of business corporations. This kind of weight does not fit with any of the wide array of democratic theories. Edmund Burke, Walter Lippman, and Joseph Schumpeter, among others, have argued for a form of elitist democracy. They recognized that elections are necessary to determine who shall rule, but in various ways, they suggested that citizens do not know enough to otherwise rule. So elites need to rule in ways that further the public interest. Nothing in their various theories, however, suggested that the elites were confined to the wealthy, let alone to the notion that corporations were wise members of the elite.
James Madison seemed to favor a form of pluralist democracy in which the people were to take a stronger rule than suggested by the conception of elitist democracy, and Robert Dahl maintained that pluralism better described American democracy than the elitist approach. On this understanding, people's interests were represented in groups or factions. And those groups applied pressure in the political sphere to advance their interests. In turn, leaders made decisions designed to bring about the best resolution of those conflicting interests. To the extent, groups were unrepresented or victims of prejudice, John Hart Ely argued that courts did and should protect their interests.
Various other theorists advanced forms of Civic Republicanism or Deliberative Democracy that challenged aspects of Dahl's pluralist picture. First, the pluralist picture seems to assume that citizens exclusively advanced their own interests as opposed to the public interest. Some theorists maintained that the pluralist theory exaggerated the degree of conflicting interests. They argued that there was frequently a common good that could be arrived at through public dialogue.
9 - Religion
- from PART II
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 133-156
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Summary
In the previous chapter, I argued that the Court's libertarian approach to speech protection faltered when it was called upon to protect the speech that matters the most. In other words, it casts a blind eye upon the needs of the subordinated, the vulnerable, and the minority. Just as the Court is not sufficiently sensitive to the importance of protecting those who use speech to dissent, the Court is insensitive to those whose religions mark them out as different from others. First, in the absence of malicious intent, the Court has developed a constitutional doctrine that does little to protect religious liberty. In addition, in the system of freedom of expression, the Court permits government speech about religion that marginalizes the nonreligious and those of minority religions. In many of the chapters we considered in Part I, I suggested that better approaches could be found in other Western countries. But here, European approaches in this area are differentiated and disappointing. On the whole, those approaches are somewhat worse than those taken in the United States.
The First Amendment addresses religion in two ways. First, it protects the free exercise of religion. Second, it prohibits the establishment of religion by the state. Taken together, these clauses should protect important values. Ideally, the Free Exercise Clause would stand for religious liberty, particularly freedom of conscience; it also would protect equality by guarding against discrimination on the basis of religion; it would safeguard freedom of religious association, which is vital to many forms of free exercise; it would bind together a strong political community committed to protecting religious freedom. The Establishment Clause should also promote important values many of which are also supported by the Free Exercise Clause.
Index
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 224-228
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1 - Privacy
- from PART I
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 13-24
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Summary
Privacy is a much treasured right in the American Constitution even though the word does not appear in the written document. In addition, privacy is protected in various statutory and common law contexts wholly apart from the constitutional reach of privacy protection. At its most general level, privacy refers the right to be left alone. It seems to protect a sphere of private autonomy. Thus, we refer to the “private” market, which many conservatives feel should not be regulated.
More centrally, however, privacy refers to a zone of intimacy in which human beings can live flourishing lives without the intrusion and scrutiny of others. That zone can include the right to determine whether or not to bear a child, including the right to use contraceptives or to have an abortion, the right to engage in sexual relations including same-sex relations, and the right to be free from unreasonable searches. Privacy protects communications between spouses, lawyer and client, doctor (or psychotherapist) and patient, priest and penitent. In some states, it provides that data about a human being cannot be collected or disseminated. It might promote government efficiency in combating crime and it would surely advance the cause of the social sciences, but we would not tolerate cameras and recording devices in our homes, let alone our bedrooms. Human beings require a private life in which they are not on a public stage. Friendships and intimate relations are rooted in the disclosure of our “private” selves. Our public face ordinarily wears a mask of formality, which to various degrees we shed in private. We may never be a wholly open book, but we are more open to some than others. In addition, privacy enables us to develop our own independent personality, our sense of creativity, and our critical sensibilities and substance. Without privacy, the evidence suggests that we tend to conform, to do what is expected of us, and to succumb to social construction, inhibiting play, innovation, and independence. In this respect, to protect privacy is to encourage values supported by the First Amendment.
If government, another institution, or a person invades our privacy, we believe that our human dignity has been compromised. Freedom of speech itself is partly based on a commitment to the dignity of human beings and their right to make autonomous decisions as to how their lives should be lived.
6 - Commerce
- from PART I
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 79-94
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Summary
For most of the history of the United States, commercial speech in general and commercial advertising in particular has been bereft of constitutional protection. Commercial advertising has no obvious connection to democratic life. Instead, advertising ordinarily involves corporations seeking to promote their products by manipulating consumers with irrelevant, nonverifiable, noninformational appeals, appeals frequently designed to attach an erotic connection (created out of whole cloth) to their message. Nor is this a new phenomenon. About the period from 1880 to 1930, T. J. Jackson Lears writes: “[T]herapeutic advertising became a method of social control – a way to arouse consumer demand by associating products with imaginary states of well-being.” To make matters worse, commercial advertisers frequently corrupt the communications media in which their advertisements appear by insisting that material be sanitized in ways that will offer a noncontroversial home for their products or a place free of material that might otherwise threaten their profitability.
Of course, commercial advertising serves an economic purpose in creating demand, and it is understandable why, in the absence of more explicit fraud and deception, a legislature would decline to regulate. But it is unclear why this deluge of manipulation should enjoy constitutional protection. Indeed, whatever the economic advantages associated with commercial advertising, it comes with cultural and political costs.
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 possessing objects (and to revel in sensations) at the center of their lives. This conception of the good life might comport with the crassest form of hedonism, but there is more to life than pleasure seeking including the serving of others, the nurturing of relationships, the cultivation of character, and the development of a mature personality. In the end, it is preposterous to suppose that human beings achieve their dignity by securing material goods. What John Dewey observed is certainly true – at least at funerals, “We praise even our most successful [people], not for their ruthless and self-centered energy in getting ahead, but because of their love of flowers, children, and dogs.”
2 - Justice
- from PART I
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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Summary
One of the hallmarks of a civilized political system is respect for the right of a fair trial. In the United States, the right to a trial by jury in criminal cases is regarded as “fundamental to the American scheme of justice.” If defendants are to receive a fair trial, assessments of their guilt or innocence should be decided in the confines of a controlled courtroom by an impartial jury, uncontaminated by the frenzy of a sensationalistic press barrage. The fair trial requirement is important not only for individual defendants, but also it is in the public interest in a democratic society that defendants are acquitted or convicted through trials that both are fair and appear to be fair.
Although our system of criminal justice has many significant deficiencies, the overwhelming majority of criminal defendants who go to trial are tried by a jury that has not been contaminated by pretrial publicity. Their stories are not sufficiently newsworthy to garner press attention. But some defendants are not so lucky. In their circumstances, the press is eager to publish all the evidence they can find without regard to the effects on prospective jurors. I wish I could say that our system places limits on the press in an effort to safeguard our system of criminal justice and the individuals involved. But our system does no such thing. Our system caters to the press desire for profits and the insatiable appetite of the public for gossip – at the expense of justice. This, of course, is the effect of our system and not its motive. The protection of the press is thought to be justified on a much higher plane, and there is no admission of a compromise with justice. But I find the claim that justice is not compromised to be a reckless gamble, and, as I indicated in Chapter 1, the claim that the press serves a valuable democratic function in these circumstances is feeble. Indeed, there is a strong argument that the values underlying the freedom of the press are disserved by permitting the publication of materials that threaten the fairness of individual trials. Such publications do not respect the dignity of the accused individuals, circumvent the very basis for rules of evidence at trials, and mock the rule of law, which is central to any theory of democracy.
Frontmatter
- Steven H. Shiffrin, Cornell University, New York
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Notes
- Steven H. Shiffrin, Cornell University, New York
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PART I
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 11-12
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PART II
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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3 - Race
- from PART I
- Steven H. Shiffrin, Cornell University, New York
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Summary
The election of Barack Obama to the presidency was a milestone in American history that many of us thought we would never see. But, an end to racism it did not mark. The facts on the ground remain disturbing. Three times as many black children live in poverty as opposed to white children. Black unemployment rates are substantially higher than those of whites. Black men are more than six times as likely as white men to be imprisoned. Efforts to exclude blacks from the polls have been upheld by the Supreme Court on specious grounds. Facts such as these are not uniformly appreciated. Although racial attitudes have improved over time, any claim that we have moved to a post racial environment is exaggerated. Indeed, after reviewing substantial data and the evidence of racial polarization, David McAdam and Karina Kloos conclude: “Far from the imagined post-racial society Obama's election was supposed to herald, we find ourselves living through the period of greatest racial tensions and conflict since the 1960's and early 1970's.”
Nonetheless, publicly blatant racist speech has long been socially unacceptable. Unacceptable, as it may be, it is constitutionally protected. That protection has long been identified as a constitutional marker separating the United States from other civilized countries. Many Americans are proud that our Constitution protects not just “free thought for those who agree with us but freedom for the thought that we hate.” On the other hand, some speech we hate can cause significant harm and does not deserve to be protected. The legal toleration of racist speech is incompatible with the nation's commitment to equal citizenship. It tolerates the denigration of vulnerable citizens on the basis of their skin color or ethnic background, factors that should be irrelevant to their relationship to the state or society. This toleration is inconsistent with the kind of public culture a just society needs to foster. To be sure, I can see the attraction of a free-wheeling society where anyone can say anything, of maintaining a tolerant posture, and some find attraction in the stereotypically masculine emotionless posture that irrational words cannot hurt me.
11 - What Next?
- from PART III
- Steven H. Shiffrin, Cornell University, New York
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- What's Wrong with the First Amendment
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- 06 October 2016, pp 184-192
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Summary
I have argued that the US Supreme Court has wrongly privileged speech over important values including privacy, justice, racial and sexual equality, animal protection, public health, and democracy. I have also argued that it has given short shrift to the importance of protecting dissent and has displayed a conspicuous lack of vigilance in affording constitutional protection to religious minorities. My primary complaint has been the almost total absence of a sense of proportion in accommodating conflicting values. The sin has been speech worship in Part I and for the most part deference to authority and order in Part II.
With respect to speech worship, I should hasten to observe that I have not argued free speech should have no role to play in accommodating the values I have discussed. Even in the area of commercial speech, which I believe should receive no liberty protection under the First Amendment, I think it obvious that government could not restrict advertising employing Republican celebrities while permitting the employment of Democratic celebrities. The First Amendment houses an equality value limiting government regulation of otherwise unprotected speech. Leaving commercial speech aside, free speech can be unduly restricted in clashes with privacy, fair trial, racial and sexual equality, entertainment violence, and campaign finance. For example, regulation of speech involving racial and sexual equality risks censorship of speech merely because we think it is wrong-headed; we have a long history of censoring speech in new media for fear of its harmful effects; campaign finance legislation is too often designed as a form of incumbent protection.
Nonetheless, there is no excuse for the mechanical privileging of free speech over other important values. It may be inappropriate to impose prior restraints on the press, but prosecutors and police should not generally be free to release incriminating information outside the trial process. Elementary considerations of privacy and dignity should preclude the successful invocation of the First Amendment to protect the intentional infliction of emotional distress at funerals or the publication of the names of rape victims without consent. Principles of equal citizenship and avoiding harm to the vulnerable counsel that the toleration of appropriately defined racist speech and pornography is unjustifiable.