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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 and Mill in a basic, explicit, straightforward way (if Milton can ever be called “straightforward”), and of Holmes, Brandeis, and Meiklejohn 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. So I think Shiffrin’s project fits well with the inheritance, if that matters.

I also think that she has done an excellent job of explaining how the shift of emphasis that she urges has significant implications for doctrinal structure and priorities, as well as for justifying particular case outcomes such as Barnette and casting doubt on others (Virginia Board of Pharmacy? Citizens United?) Moreover, I find convincing several of her arguments regarding how her version of an autonomy theory of free speech has certain advantages over rival autonomy accounts.


Constitutional Law | First Amendment | Law