Seana Shiffrin's thinker-based freedom of speech: a response.
Constitutional Commentary › Vol. 27 Nbr. 2, September 2011
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Response to article in this issue, p. 283 - Symposium: Individual Autonomy and Free Speech
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Seana Shiffrin's thinker-based freedom of speech: a response.
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 inherit...
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