Freedom of Speech and Two Types of Autonomy
Shiffrin, Steven H., Constitutional Commentary
For several decades, I have maintained that social reality is too complex to hope or expect that First Amendment theory could be reduced to a single value or a small set of values. (1) Nonetheless, extraordinarily fruitful scholarship can be produced by those who try. Such scholarship can show just how far we can get by resort to monistic approaches (as well as their limits). C. Edwin Baker and Seana Valentine Shiffrin offer two approaches to autonomy. Baker's approach rests on a speaker liberty theory that he put forward over a period of decades. It is, for my money, the best that has been put forward in the field, eclipsing those of Rawls and Dworkin, for example. It represents in my view the most thoughtful defense of the ACLU position on freedom of speech. (2)
Shiffrin puts forward a substantial and original contribution to the literature. She--wisely in my view--does not seek to offer a comprehensive theory. But she maintains that if we focus on humans as thinkers instead of as speakers or audience members, we can provide surprising insights across a range of First Amendment issues. One might have thought that the First Amendment literature would have explored in detail the implications of freedom of thought, but it has not, and Shiffrin systematically forges a new path.
Baker argues that the legitimacy of government demands respect for formal autonomy. He apparently maintains that instrumental reasons need play no role in speech clause analysis (though they do in press clause analysis). (3) The crucial question for Baker is whether a speaker has coerced or manipulated another. If so, the speech is not protected. If not, the speech is protected. (4) Thus, he says that obscenity is an easy case for his system. Obscenity does not coerce or manipulate, and, therefore, it is protected. (5) Note that Baker's system dictates this conclusion wholly apart from the consequences of obscene speech. The same would be true of intentional infliction of emotional distress, fighting words, the revealing of intimate facts about a person's private life, negligent defamation of private persons (at least in the non-media context), and racist speech including the advocacy of genocide (so long as it did not amount to an attempt). It may be that there are good grounds to protect all the speech in these categories (I doubt it), but resolving these problems via moral geometry without attention to the consequences does not seem right to me. Blanket protection for formal autonomy seems insufficiently respectful of the dignity of human beings as witnessed by its protection of the intentional infliction of emotional distress, fighting words, the revealing of private facts about a person's private life, and some negligent (indeed, even grossly negligent) defamation of character. In addition, suppose that pornography (6) and racist speech create unjust conditions for women and people of color. In the absence of good consequentialist arguments against such prohibitions, (7) it is a little odd to be told that injustice must be maintained in order to protect the legitimacy of the government. In the case of racist speech and pornography, the effect of Baker's system is automatically to privilege negative liberty over the positive liberty that might be created by governmental egalitarian measures. To put it another way, using Baker's terminology, I believe that it is sometimes appropriate to privilege substantive autonomy over formal autonomy even when the exercise of formal autonomy has not interfered with the equal formal autonomy of another. Doing so, in my view, can make the government more legitimate. (8)
The exercise of the formal autonomy of speech can fit into the problematic categories of speech mentioned above or it can produce uncontroversially protected political, religious, artistic, scientific, or private communications. As I understand him, Baker maintains that interfering with racist speech is no better or worse than interfering with religious or political speech (at least from a formal perspective--obviously Baker was no fan of racist speech). …