Speech Matters: On Lying, Morality, and the Law.

• Author: Blankfein-Tabachnick, David
• Position: Book review

Speech Matters: On Lying, Morality, and the Law. By Seana Valentine Shiffrin. Princeton and Oxford: Princeton University Press. 2014. Pp. xi, 223. $35.

Introduction

Professor Seana Valentine Shiffrin (1) has produced an exciting new book, Speech Matters: On Lying, Morality, and the Law. Shiffrin's previous rigorous, careful, and morally sensitive work spans contract law, (2) intellectual property, (3) and the freedoms of association (4) and expression. (5) Speech Matters is in line with Shiffrin's signature move: we ought to reform our social practices and legal and political institutions to, in various ways, address or accommodate moral values--here, a stringent moral prohibition against lying, a strident principle of promissory fidelity, that is, the principle that one ought to keep one's promises, and the general value of veracity.

The book grows out of Shiffrin's Hempel Lectures at Princeton University and honorary lectures she has given at Cornell and New York Universities. Shiffrin cotaught a seminar with the late Professor Ronald Dworkin, which discussed a prepublication draft of the book (pp. ix-x). The volume is organized into six essentially independent chapters or lectures. Chapters One, Two, and Six began as independent, stand-alone lectures; Shiffrin crafted Chapters Three, Four, and Five to further expand on the arguments of One and Six (p. 4).

While the volume bears a unifying theme, Shiffrin intended the chapters to retain their independence as distinct lectures, and she welcomes readers to delve into the chapters independently of one another (p. 4). Speech Matters is, at its core, a rich discussion of moral agency and the normative values of sincerity, truth telling, promissory fidelity, and the effect they ought to bear on personal and social relations, and political and legal institutions. This Review brings forward this unifying theme and provides a critical appraisal, contrasting Shiffrin's stridently Kantian approach with an alternative foundationally deontic, if less severe, distributive approach.

1. AGENCY

   1. Channels to Communication

      Shiffrin is concerned with "moral agency" (p. 1). It is not only social cooperation and human flourishing, but moral agency itself that requires a fragile domain of sincerity and trust. This domain, Speech Matters holds, requires an extraordinarily stringent social and legal prohibition against lying and the protection of fidelity (pp. 2, 26). "The means of successful communication are crucial ... mechanisms for the most valuable human endeavors--from establishing and conducting personal relationships, to engaging in cooperative activities...." (p. 25). Shiffrin argues that "[p] reserving and protecting these means therefore figure among our fundamental moral priorities" (p. 25). But Speech Matters's unique and somewhat counterintuitive claim is that a failure to recognize an extraordinarily stringent--indeed nearly absolute--prohibition on lying, (6) "precludes ... moral relations ... by obstructing the sort of mutual understanding[s] ... based on rational communication." (7) That failure thereby obstructs the channels required for moral progress and the sorts of mutual engagement, which serve as the precondition to giving normative effect to our social practices and legal and political institutions. (8)

      Given the focus on pathways to communication, one may feel tempted--indeed invited--to conclude that Shiffrin offers a straightforward consequentialist or outcome-oriented account of the freedom of speech; after all, her view plainly involves "delving into the moral purposes and value of communication" and seemingly justifies the value of open channels of communication in consequentialist terms (p. 26). Yet Shiffrin is clear: she aims at a view that is not "rendered] ... consequentialist." (9) To understand the normative foundations of communication, it is essential to consider communication's normative relationship to moral agency. (10) Absent open channels or pathways, for Shiffrin, it is not just that our communication becomes constrained and weak--as if we had insufficient bandwidth to support our streaming video--it is, rather, that open pathways are a deontic precondition to understanding ourselves and others as thinking persons, or at base, understanding one another as deliberative moral agents (p. 26). For Shiffrin, there is a fundamental responsibility to secure the conditions under which moral agency obtains and that this agency requires reliable and precise communication. (11)

      Shiffrin's nonconsequentialist insight is subtle: our very ability to contemplate our aims, goals, plans, or duties and to make the relevant calculations and trade-offs required to achieve our outcome-oriented goals--admittedly, often an empirical task--is predicated on moral agency. This agency only fully exists, however, under certain social conditions--those embodying the pathways to precise communication (p. 26). Our deontic responsibility, then, is to secure and protect these social conditions through compliance with a stringent conception of the lying prohibition and a nearly absolute commitment to the values of sincerity, veracity, and a revised conception of promissory fidelity (pp. 1, 26). Stringent adherence to this set of commitments constructs pathways to communication and the normative basis of freedom of expression. (12) The source of normativity in communication is not merely a function of consequences, but derives from a deontic conception of moral agency itself. (13)

      The argument is elegant and operates at a high level of abstraction. But to make the view concrete, Shiffrin introduces an instructive metaphor concerning the value of truthful communication even in the context of "those who intend to do wrong" (p. 24): "the wrong of the lie as a generalization of the wrong of perfidy and, in particular, of the abuse or misuse of the white flag in war" (p. 24). Even in the context of war, the white flag--the signal of willingness to surrender or negotiate--commands respect. Once a party raises the white flag, it is impermissible to attack the messenger carrying the flag, and it is a crime of war to use the white flag to surprise or sabotage. "Even between parties who are authorized in some sense to kill one another, the white flag is regarded as sacrosanct." (14)

      The motivation behind this convention is that "even when we are at each other's throats and even when we are grappling with evil" it is essential that we preserve a way out (pp. 24-25). Shiffrin vividly describes the moral necessity involved: "We must preserve an exit through which we could negotiate an end to conflict and move toward reconciliation using rational discourse," as opposed to merely "relying ... upon the crude tools of violence, domination, and extermination. To avoid ... devastations and massacres and to protect the possibility of peace, an absolutely trustworthy method of communication must be preserved" (p. 25).

      While these are illustrative consequentialist observations, Shiffrin's position remains subtly deontic: we have an initial moral duty or responsibility to construct and maintain the social conditions necessary to human agency and flourishing (pp. 1, 26). But this agency requires open channels of communication that themselves require stringent requirements of sincerity, promissory fidelity, and a nearly absolute prohibition against lying (pp. 3, 26). Despite the palpable temptation to a consequentialist interpretation of communicative duty and, in turn, freedom of expression, Shiffrin's account is--at the foundation--duty- and agency-based. The deontology lies in the initial duties and responsibilities that, in turn, require that the pathways to communication be constructed openly.

   2. Trade-Offs in Constructing Open Channels

      But demonstrating that the argument is deontological at its foundation is one thing; justifying a normative demand for rigorous honesty--near absolutism in the duties of veracity, sincerity, and in promissory fidelity even under extraordinary or quite extreme conditions--is another. Shiffrin's move from basic deontic notions of duty and responsibility to the social demand for channels of communication constructed to pattern nearly absolutist duties may be too quick; the very values that serve moral agency and that lead to moral progress and flourishing, in her view, may at times serve to defeat the strength of the very duties of veracity that are in question.

      Interestingly, Shiffrin begins with--but ultimately departs from--a somewhat Rawlsian spirit: the idea that the above stated preconditions to full moral agency take a "lexical priority" over other values (p. 26). But it is unclear that stringent adherence to fidelity and sincerity will do the normative work Shiffrin asks of them. It seems more likely that interpersonal relations and social and legal institutions required to support the sort of thick moral agency Shiffrin has in mind must answer to a complete set of values that are broader than veracity, and also must importantly embody a conception of the duty of sincerity significantly less stringent than Shiffrin's. Moral agency of the sort Shiffrin embraces requires a commitment to a range of blended and balanced basic liberties, as well as material well-being. For a view like Shiffrin's, the question is how stringent duties, however normatively appealing in isolation, might fit in such a scheme. (15)

      So while it is clear that reliable mechanisms and channels for communication are necessary to have freedom of speech and communication, it is less clear that Shiffrin's stringent prohibition on lying maps in any one-to-one fashion in constructing and maintaining such channels and, in certain instances, it may run counter to the preservation of such channels. The prohibition on lying--as well as the value of free speech itself--must in some circumstances be traded off against other crucial basic liberties, say, when security of the person...