Dissent, Injustice, and the Meanings of America

by Shiffrin, Steven H.

• ISBN13: 9780691001425
• ISBN10: 0691001421
• Format: Hardcover
• Copyright: 1998-02-01
• Publisher: Princeton Univ Pr

Summary

Americans should not just tolerate dissent. They should encourage it. In this provocative and wide-ranging book, Steven Shiffrin makes this case by arguing that dissent should be promoted because it lies at the heart of a core American value: free speech. He contends, however, that the country's major institutions--including the Supreme Court and the mass media--wrongly limit dissent. And he reflects on how society and the law should change to encourage nonconformity.Shiffrin is one of the country's leading first-amendment theorists. He advances his dissent-based theory of free speech with careful reference to its implications for such controversial topics of constitutional debate as flag burning, cigarette advertising, racist speech, and subsidizing the arts. He shows that a dissent-based approach would offer strong protection for free speech--he defends flag burning as a legitimate form of protest, for example--but argues that it would still allow for certain limitations on activities such as hate speech and commercial speech. Shiffrin adds that a dissent-based approach reveals weaknesses in the approaches to free speech taken by postmodernism, Republicanism, deliberative democratic theory, outsider jurisprudence, and liberal theory.Throughout the book, Shiffrin emphasizes the social functions of dissent: its role in combating injustice and its place in cultural struggles over the meanings of America. He argues, for example, that if we took a dissent-based approach to free speech seriously, we would no longer accept the unjust fact that public debate is dominated by the voices of the powerful and the wealthy. To ensure that more voices are heard, he argues, the country should take such steps as making defamation laws more hospitable to criticism of powerful people, loosening the grip of commercial interests on the media, and ensuring that young people are taught the importance of challenging injustice.Powerfully and clearly argued, Shiffrin's book is a major contribution to debate about one of the most important subjects in American public life.

Table of Contents

Acknowledgments	ix
Introduction	xi
PART ONE: THE MEANINGS OF AMERICA	1	(88)
The First Amendment and the Meaning of America	3	(29)
The First Amendment and the Flag	4	(4)
Content Neutrality and ``Exacting Scrutiny''	8	(2)
The First Amendment, Dissent, and Political Speech	10	(1)
Dissent and Communitarians	11	(7)
The First Amendment and the Arts	18	(6)
The First Amendment, Cultural Struggle, and National Identity	24	(3)
The First Amendment and Postmodernism	27	(5)
Cigarettes, Alcohol, and Advertising	32	(17)
The Liquormart Case	33	(4)
The Fragile Case for Commercial Speech Protection	37	(11)
Conclusion	48	(1)
Racist Speech, Outsider, Jurisprudence, and the Meaning of America	49	(40)
The R.A.V. Case	51	(2)
Commercial Speech and Racist Speech	53	(4)
Content Discrimination and R.A.V.	57	(6)
Content Discrimination and the Meaning of America	63	(4)
``Fighting Words''	67	(9)
Dissent and the Meaning of America	76	(10)
Conclusion	86	(3)
PART TWO: COMBATING INJUSTICE	89	(42)
Dissent and Injustice	91	(30)
The Social Value of Promoting Dissent	91	(2)
The Place of the Argument in Liberal Theory	93	(4)
The Distorted Marketplace	97	(13)
Legalizing the Marginalization of Dissent	110	(2)
Encouraging Dissent	112	(9)
The Politics of Free Speech	121	(10)
The Impact of the Free Speech Principle	124	(3)
The Free Speech Principle	127	(4)
Notes	131	(68)
Index	199