First Amendment: Speech Book Review 129 Harv. L. Rev. 997

How Much Does Speech Matter?




Americans love their free speech. “Americans are freer to think what we will and say what we think than any other people,” and we are not going to let anyone forget it. We are swift to accuse others of violating our First Amendment rights, even when the alleged infringers are not part of the government, the only entity actually constrained by the First Amendment. We are eager to rest on free speech claims and, where they do not exist, to make them. With a reliability approaching that of the laws of physics, we may set it down that whenever the First Amendment can be invoked, it will be invoked.

Despite our insistence on our right to speak our minds, we are also a society of liars. Our liars are on display in a regular public cycle of untruths, both flagrant and furtive, followed by gleeful exposures. We also have a thriving culture of concern about our culture of lying. I do not claim that these features are novel. I merely observe that, for a nation that insists on its constitutional right to speak truth to power, we spend a lot of time not telling the truth.

What does seem novel is the recent strategy of combining these two proclivities into a First Amendment right to lie. In 2007, a local politician argued that the First Amendment protected his right to lie in public about being a decorated Marine, such that he could not be prosecuted under the Stolen Valor Act of 2005, which punished lies about military honors. The Supreme Court, in a fractured opinion, agreed with him that the First Amendment’s protections extend to many false statements, including many lies. In doing so, the Court repudiated earlier assertions that lies were outside the protection of the First Amendment. It also aligned itself with a growing number of courts and scholars arguing that lying is sometimes — indeed, often enough to make it worth mentioning — protected activity. Not only do we have a right to speak the truth, but we also claim a right to lie.

Professor Seana Shiffrin rejects this turn, as well as facile claims about either lying or free speech. In Speech Matters: On Lying, Morality, and the Law, Shiffrin presents a theory of the morality of communication. On Shiffrin’s view, communication is the best, and often the only, way to share the contents of our minds with each other. This process of sharing is necessary to our identity and development as moral agents. This singular function of communication justifies the special protection known as freedom of speech. It also explains what is wrong about lying: when we lie, we pervert communication’s role as the primary vehicle for sharing our sincere beliefs. Lying is impermissible, in Shiffrin’s words, because it “transforms a mechanism for exclusively conveying the truth into a mechanism for conveying both the false and the true” (p. 23). Moreover, because the freedom of speech is founded on the moral function of communication, its protections do not extend to lies, which erode the moral functions that make communication important in the first place. Shiffrin’s moral vision explains why lying is wrong, why freedom of speech is right, and why those two views are compatible.

As is apparent from this synopsis, Shiffrin believes communication is serious and should be taken seriously. While she identifies a limited set of contexts in which insincerity is permissible, telling the truth should be approached as “an essential, nonnegotiable activity” (p. 188). Shiffrin deplores a world in which “truth-telling stops being reflexive or agents often find themselves in reasonable and serious doubt about whether assertions are presented to be trusted” (p. 188). Sincere communication is so important that, although we do not owe the murderer at the door the truth about his victim’s whereabouts, we do owe him the truth about other matters — such as the penalty for murder or his personal legal situation — even if lying would deter him from murdering the victim (p. 31). Sincere communication is so important that Shiffrin criticizes the methods of police and negotiators who lie to hostage takers to encourage them to release their victims (p. 31). Sincere communication is so important that, while fiction and other entertainments are valuable, “constant immersion in them is a personal vice as well as a cultural liability” (p. 188). “Similarly dangerous,” Shiffrin warns, “is overindulgence in the postmodern penchant for constant cynicism and wordplay” (p. 188). Sarcasm, irony, parody, and engagements in fictions must all be clearly signaled to the listener through culturally accepted methods (pp. 133–34), and they must be used sparingly, so as not to “threaten the dominance or availability of the presumption of sincerity” (p. 188).

As Shiffrin recognizes, this view is not fashionable. She places a responsibility on us as speakers that many modern communicative gambits seem designed to evade. But hers is not a superficial or knee-jerk moralism. Her view has a coherence that is both creative and philosophically exacting. At its root is a hopeful, and deeply humane, celebration of the role of communication in our knowledge of ourselves, our understanding of others, and our individual and collective moral deliberation. Sincere communication is the lifeblood of our moral identities, she argues, and it is vulnerable to death by a thousand cuts.

As a compelling defense of sincere communication, Shiffrin’s book deserves to be read and contemplated not just by academics interested in the morality of communication, not just by lawyers concerned with the bounds of free speech, but by anyone struggling to define her duties to herself and others in a world awash in lies. At the same time, Shiffrin’s arguments deserve to be approached with the same rigor and sincerity that she recommends for all communication. In this regard, I have one central question: even if we accept Shiffrin’s claims about the singular role of communication, must we accept her claims about the impermissibility of lying and the privileged position of free speech? To put it another way, if we accept her account of how speech matters, is there not still a question of how much?

This question gestures toward a difference in methodologies. Shiffrin’s approach to lying belongs to a Kantian tradition that rejects value tradeoffs and would resist the transition from how speech matters to questions about how much. In what follows, I offer some challenges to that approach, mainly by suggesting the appeal of a view that recognizes and attempts to accommodate moral conflict. More importantly, however, I suggest a certain symmetry between the Kantian view of lying and claims often made on behalf of free speech. This symmetry makes Shiffrin’s approach coherent and compelling. It also contributes to a sense that, with both lying and free speech in such sharp focus, other important values tend to fall into the periphery. I explore this phenomenon, first, with Shiffrin’s strict stance against lying and, next, with her protective stance toward freedom of speech.

* Albert Clark Tate, Jr., Professor of Law, University of Virginia School of Law. Special thanks to Matthew Levinton for excellent research assistance; to Fred Schauer, for offering helpful comments on yet another first draft; to Micah Schwartzman, who talked through every step of this project but was too sincere to join it when it clashed with his views on sincerity; and to Seana Shiffrin, for responding generously to a draft of this review, and for writing the book and enabling this exchange.