THE DISSENT OF THE GOVERNED: A MEDITATION ON LAW, RELIGION, AND LOYALTY. By Stephen L. Carter. Cambridge: Harvard University Press. 1998. Pp. xi, 167. Cloth, $20.50; paper, $12.95.
Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.(1) Since the Warren Court's expansive construction of the Free Speech Clause of the First Amendment, there has been no shortage of legal scholarship aimed at justifying the remarkably broad protections afforded the freedom of speech under landmark cases such as Brandenburg v. Ohio,(2) New York Times Co. v. Sullivan,(3) and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.(4) At the same time, in recent years, a growing chorus of free speech skeptics have made their voices heard.(5) These legal scholars have questioned why a commitment to freedom of expression should displace other (constitutional) values such as equality, community, or citizenship.
This spirited challenge to the Warren Court's free speech orthodoxy has given rise to a kind of free speech counter-Reformation. Defenders of the free speech tradition have joined the fray, challenging those who question the value of racist, sexist, or homophobic expression.(6)
The debate has taken place against the backdrop of a longstanding controversy about the "central meaning"(7) of the First Amendment's Free Speech Clause. Since Justices Holmes and Brandeis began forcefully applying the Free Speech Clause to provide broad protection to political speech activity,(8) scholars have been deeply divided over the precise rationale for according speech protection when the speech imposes significant social costs on the general community. Classic theories of free speech, such as Alexander Meiklejohn's "democratic deliberation" thesis,(9) have competed with newer rationales for protecting free expression, such as the pursuit of truth, self-realization, or personal autonomy.(10) Other scholars have suggested more practical rationales for protecting free expression, such as avoiding social disorder by permitting disgruntled elements of the community to vent their frustrations peacefully.(11)
Two recent books, one by Professor Steven Shiffrin(12) and the other by Professor Stephen Carter,(13) propose a renewed focus on protecting dissent as the central value of the First Amendment. Both works posit that the government's response to dissent should serve as the key to evaluating the overall effectiveness of the Supreme Court's free speech jurisprudence. Professor Shiffrin states his thesis as follows: "[T]he First Amendment spotlights a different metaphor than the marketplace of ideas or the richness of public debate; instead, it supports the American ideal of protecting and supporting dissent by putting dissenters at the center of the First Amendment tradition" (p. 128). Professor Carter sounds a similar theme arguing that "[c]ivic life requires dissent because it requires differences of opinion in order to spark the dialogues from which the community thrives and grows" (p. 16). Carter goes even further, positing that the legitimacy of a government's demand of loyalty from its citizens should be a function of its treatment of those who dissent from its laws and policies: "[T]he justice of a state is not measured merely by its authority's tolerance for dissent, but also by its dissenters' tolerance for authority."(14)
A dissent-based theory of free speech has a great deal of superficial appeal. After all, who could be against dissent in a society ostensibly dedicated to permitting freedom of speech? Moreover, the Supreme Court of the United States has taken great pains to emphasize that facilitating political dissent is a core project of the Free Speech Clause.(15) These observations notwithstanding, there are reasons for skepticism about the federal courts' ability to devise and enforce a viable dissent-based theory of free speech.
First, and perhaps most importantly, there are serious definitional difficulties associated with determining whether or not speech constitutes "dissent." Speech that is hostile to the actions of one branch of the government might be supportive of the actions of another.(16) To a large degree, "dissent" is in the eyes of the beholder.(17) As Professor Richard Delgado has observed, "[a]lthough Shiffrin, to his great credit, invented the dissent theory, neither he nor someone else comparably progressive will be able to dictate the manner in which courts will apply it."(18) If citizens engaged in dissent have cause to fear being marginalized by prosecutors and judges drawn from the majority culture, they would have even more cause to fear being silenced under a regime that makes full First Amendment protection wholly contingent on the goodwill of a state functionary possessing the discretion to apply or withhold a talismanic label.
In addition, the social costs of speech activity do not necessarily track whether speech constitutes "dissent." Indeed, some of the most potentially disruptive speech activity imaginable at least arguably constitutes dissent -- activities such as shooting physicians who provide abortion services or bombing federal facilities.(19) Less extreme examples of dissenting expressive conduct include flag burning or the burning of draft cards.(20) One need not even rely on expressive conduct to illustrate the point: Nazis in Skokie represent a kind of dissent, yet the nature and context of this speech activity impose very high social costs on the community.(21) The Supreme Court's rhetoric to the contrary notwithstanding, much contemporary First Amendment case law reflects direct cost/benefit analysis of proposed speech activity.(22) As Justice White once put the proposition,
it is not rare that a content-based classification of speech has been accepted because it may be more appropriately generalized that within the confines of the given classification, the evil to be restricted so over-whelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.(23) It seems unlikely that the Justices would abandon such an approach in favor of a more absolute protection for speech activity denominated "dissent" (even if the definitional difficulties could be overcome, which is doubtful).
These objections to a dissent-based theory of the First Amendment do not, however, undermine the utility of Shiffrin's or Carter's efforts. Shiffrin's project constitutes a sustained effort to bring the free speech apostates (generally scholars of the Left) back into full communion with the free speech tradition. This is an important project and should spark debate between the free speech doubters and believers. If the Roman Catholic Church and the Lutheran Church can resolve their theological differences and create the promise of a return to full communion,(24) Shiffrin is right to push for a reconciliation between free speech traditionalists and the free speech critics.
Professor Carter's emphasis on dissent serves a very different project: empowering religious minorities within the larger political community. His work constitutes a sustained plea for more secular citizens and policy makers to take seriously the concerns of religiously motivated dissenters.(25) To the extent he suggests that the community, always and unfailingly, owes religious extremists a careful and concerned audience, he overstates the case of religiously motivated dissenters. On the other hand, to the extent that religiously motivated dissenters seek breathing room from the civil state in order to honor the dictates of conscience, Professor Carter offers a powerful argument for listening to what the dissenters have to say.
DISSENT AS IDEOLOGY: DISSENT, INJUSTICE, AND THE ROLE OF DISSENT IN PROGRESSIVE POLITICS
Professor Shiffrin's work represents an effort to give leftists and progressives -- often free speech critics -- a reason to rethink their hostility to the free speech project. He offers both practical and philosophical reasons for the doubters to return to the one true church:
(1) "Like it or not, the free speech principle is here to stay" (p. 129).
(2) "[T]here is insufficient reason to suppose that the left acts against its interests in supporting the free speech principle even assuming that the principle were laissez-faire.... To the extent that leftist politics depends on social movements and grassroots protests and activities, the free speech principle is vital" (p. 125).
For reasons that I will develop more fully below, it is highly unlikely that the free speech critics will agree to rejoin the free speech congregation. Moreover, free speech traditionalists are likely to balk at the compromises that Shiffrin proposes as an incentive for the free speech critics to renounce their heresies and embrace the free speech principle.
Some Definitional Problems with Shiffrin's Vision of Dissent
Before one evaluates Shiffrin's larger, and ambitious project, one must first meet and overcome two practical difficulties with Shiffrin's rather unusual definition of "dissent." The first is definitional and the second is operational.(26)
Shiffrin defines dissent, in large part, by reference to the identity of the speaker. "By dissent, I mean speech that criticizes existing customs, habits, traditions, institutions, or authorities" (p. xi). Even Soviet Russia ostensibly embraced constructive self-criticism (samokritika);(27) accordingly one would be hard pressed to object strenuously to this baseline proposition, (i.e., so far so good). Of course definitional issues abound with this definition of "dissent" because the concept is largely relational. Thus, almost immediately storm clouds begin to form on the horizon: "Commercial advertisers, however, are not dissenters" (p. xii). Tobacco advertising, in particular, merits...