Seana Shiffrin's thinker-based theory of free speech: elegant and insightful, but will it work in practice?

• Author: Weinstein, James
• Position: Response to article in this issue, p. 283 - Symposium: Individual Autonomy and Free Speech

INTRODUCTION

Seana Shiffrin offers a persuasive account of how free speech is essential to the realization of several profound interests that we have as thinkers. This approach avoids the usual sharp separation of speaker and listener interests, a dichotomy that, though useful in many ways, also shortchanges a full account of important free speech interests. Another advantage of Seana's theory is that the interests that underlie it are all relatively uncontroversial. Thus no one can reasonably deny that we have vital interests in "self-development, self-knowledge, knowledge of others, others' knowledge of and respect for oneself, knowledge of the environments in which they interact, opportunities for the exercise of one's intellectual capacities including the imagination, and the intellectual prerequisites of moral relations." (1) Similarly, there is no disputing that free speech is essential to the realization of these basic values.

With respect to the interests of being known and respected by others, Seana explains that "[i]f what makes one a distinctive individual qua person is largely a matter of the contents of one's mind," it follows that "to be known by others requires the ability to transmit the contents of one's mind to others." (2) As regards self-knowledge and related interests, Seana correctly observes that for many people "some thoughts may only be fully identified and known to themselves if made linguistically or representationally explicit." (3) This tight connection between speech and its underlying values gives Seana's theory both a firm foundation and commendable coherence. So aside from a few quibbles, (4) I endorse Seana's poignant account of a cluster of deep and abiding interests at the core of what makes us human and their relation to free speech.

Still, for all its advantages, Seana's theory is not, in my view, a good theory of freedom of expression. In particular, I have grave concerns about its ability to generate doctrinal rules that will in practice adequately protect vital free speech interests, especially those most in need of protection from governmental suppression. Less fatally, but still a significant problem, Seana's lack of concern for doctrinal fit also detracts from the utility of her theory. But before discussing these serious defects in Seana's theory, I want to say a few more words about its relative strengths.

WAYS IN WHICH SEANA'S THEORY IS AN IMPROVEMENT OVER PREVIOUS FREE SPEECH THEORIES

Seana claims that her thinker-based theory provides "a stronger and more coherent foundation for the most important free speech protections than rival free speech theories, including the more common speaker-based or listener-based autonomy theories." (5) I am not sufficiently familiar with the various colorations of autonomy-based theories to comment on this claim as a global matter. I am confident, however, that Seana's theory has a more solid foundation than, say, Martin Redish's self-realization theory, which I have previously described as "hovering in mid-air." (6) And in addition to having a deep and secure philosophical foundation, Seana's theory is, as I have mentioned, rooted in a basic commitment that would garner nigh unto universal consensus in any liberal society. As a sociological matter, it thus has a firmer foundation than do several other autonomy theories, including the theory Ed Baker defends in this Symposium, which Ed himself admits rests on a "wildly contested" account of autonomy. (7) There is, as I elaborate in my response to Ed, considerable advantage in basing a theory of free speech in commitments that attract wide-spread acceptance by both legal actors and the American public. (8)

As I have also mentioned, Seana's thinker-based theory avoids dividing us into speakers or listeners, as is typical of other theories, including the brilliant listener-based theory long ago proposed (but later retracted) by Tim Scanlon. (9) Not only does Seana's holistic approach more clearly identify interests that may have been obscured by the traditional dichotomy, but it also tends to make her theory more coherent than rival autonomy theories. For example, Seana's theory offers a deeper, more satisfying explanation of the connection between free speech and abstract art or music than do the other autonomy-based theories with which I am familiar. And since autonomy theories as a group more readily explain this connection than do democracy-based theories, Seana's thinker-based explanation increases this generic advantage. (10)

Despite these not insignificant advantages over other theories, Seana's thinker-based theory is nonetheless not overall a very good theory of freedom of expression. First, by forswearing any concern with its fit with current practices, Seana's theory is, despite its own admirable coherence, unlikely to help make current doctrine more coherent. In addition, and much more problematically, her theory would, if ever put into practice, dilute the rigorous protection that current doctrine provides political dissent. My disagreement with Seana is therefore not as much theoretical as it is meta-theoretical, stemming from our quite different conceptions of what a theory of free speech should accomplish.

THE PROBLEM WITH PURELY NORMATIVE FREE SPEECH THEORIES

Seana explains that it is not her goal in identifying the theoretical foundation of free speech to "provide the best theoretical account of our system or our current practices of protecting (or failing to protect, as the case may be) free speech." (11) In her view, articulating a theory among "more ideal lines" (12) provides a framework for assessing whether current practices are justified, as well as supplying a measurement for reform. The implication here seems to be that a theory's ability to normatively critique current practices and offer suggestions for reform will be diminished if, in addition to identifying a normatively appealing guiding value, it can also explain the basic features of current practices in terms of this value. I do not see why this should be the case. (13) Indeed, as Vincent Blasi has aptly observed, in some respects just the opposite is true, for "[t]he explanatory project introduces one kind of discipline that can stimulate normative insights and judgments that might not be forthcoming in a zero-based normative inquiry." (14)

More importantly, as Vince also notes, "rationalization can be a socially functional enterprise, at least when it does not entirely pre-empt or crowd out independent critical evaluation." (15) Echoing this view, I argue in my response to Ed that a normatively appealing theory that also explains a great deal of current doctrine can bring coherence to an area of the law badly in need of a basic organizing principle. So though Seana's theory gets good marks for its own coherence, her lack of interest in the explanatory dimension undercuts its usefulness for bringing coherence to free speech doctrine. I will not, however, attempt here to comprehensively assess how well her thinker-based theory fits or deviates from current doctrine but will merely note two basic shortcomings in its explanatory power.

First, like most autonomy-based theories, it...