Seana Shiffrin's Thinker-Based Freedom of Speech: A Response
Blasi, Vincent, Constitutional Commentary
As an instinctive consequentialist so far as First Amendment theory is concerned, I have to admit that I have never been so tempted by a non-consequentialist account as I am by what Professor Shiffrin has produced. My principal interest is the history of ideas regarding the freedom of speech. I have long been struck by how so many of the canonical writers on the subject have built their arguments from the starting point of the central importance of the freedom of thought. This is true of Milton (1) and Mill (2) in a basic, explicit, straightforward way (if Milton can ever be called "straightforward"), and of Holmes, (3) Brandeis, (4) and Meiklejohn (5) in more complicated (and disputable) ways. Of the major Anglo-American theorists of free speech, only Madison and Learned Hand do not glorify the independent-minded individual thinker, but they both rest their arguments for free speech on the central importance of meaningful political consent. (6) So I think Shiffrin's project fits well with the inheritance, if that matters.
I also think that she has done an excellent job of explaining how the shift of emphasis that she urges has significant implications for doctrinal structure and priorities, as well as for justifying particular case outcomes such as Barnette (7) and casting doubt on others (Virginia Board of Pharmacy (8)? Citizens United (9)?) Moreover, I find convincing several of her arguments regarding how her version of an autonomy theory of free speech has certain advantages over rival autonomy accounts.
I have two misgivings. The first relates to the kind of person who would benefit most from the freedom that Shiffrin's intriguing version of autonomy is designed to advance. One of the attractive features of the conventional arguments for free speech from autonomy--arguments centered on notions such as dignity, decency, and consent; arguments largely about human beings being treated as ends not means--is that all persons benefit from having their autonomy respected, and benefit in roughly similar ways. In shifting the focus from speaking and listening to thinking, Shiffrin's novel autonomy argument may sacrifice that advantage to a degree. My second misgiving relates to her persuasive claim that the understanding of autonomy that she offers provides a more comprehensive, unified foundation for the protection of speech than is provided by rival versions of the argument from autonomy. I wonder whether having such a comprehensive, unified foundation is highly desirable, as she assumes. I should say at the outset that I consider my second misgiving the more significant of the two.
My first misgiving bears a resemblance to a problem that some readers have with Mill. (10) After sketching his paragon of the truly open-minded thinker, tolerant yet passionate and committed, courageously ready to follow his intellect wherever it leads him, if necessary willing to defy convention and proceed alone in the face of scorn, Mill announces that:
Not that it is solely, or chiefly, to form great thinkers, that freedom of thinking is required. On the contrary, it is as much, and even more indispensable, to enable average human beings to attain the mental stature which they are capable of. (11)
Missing from his account, however, is an explanation of how "average human beings" are to achieve the breadth of understanding and empathy and the degree of self-discipline necessary to meet Mill's demanding standard of fully engaged open-mindedness. Much as he sincerely desires to "raise even persons of the most ordinary intellect to something of the dignity of thinking beings," (12) the question persists whether the freedom that Mill defends is of much greater value to people like himself and his ilk than to other persons whose abilities, aspirations, and patterns of living are less remarkable or differently directed.
Clearly Shiffrin believes that the thinker-oriented freedom she defends is of great value to persons with no intellectual pretensions, persons who simply need to think in order to figure out how to survive, hopefully flourish, do their moral duty, and be recognized for who they are by cohorts who may not value intellectual achievement at all. …