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Dissent, Injustice, and the Meanings of America

Dissent, Injustice, and the Meanings of America

Steven H. Shiffrin
Copyright Date: 1999
Pages: 220
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  • Book Info
    Dissent, Injustice, and the Meanings of America
    Book Description:

    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.

    eISBN: 978-1-4008-2296-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. xi-xiv)

    Free speech controversies involve debates about social power and cultural struggles about the meaning of America.¹ Should government be able to punish flag burners? Prevent tobacco companies from advertising products that kill more people every year than homicides, suicides, alcohol, illegal drugs, AIDS, and car accidents put together?² Prevent the Ku Klux Klan from making vicious racist attacks on groups that are guaranteed equal protection under our Constitution?

    Americameans many things to many people. For most citizens, it is a cultural symbol that stands for the ideals of the nation. The flag representsAmerica.To burn the flag is...


    • I The First Amendment and the Meaning of America
      (pp. 3-31)

      Political pundits often proclaim the view that conservatives know how to tap into American values in a way that progressives do not. Consider this tiny masterpiece from Patrick Buchanan: “The arts crowd is after more than our money, more than an end to the congressional ban on funding obscene and blasphemous art. It is engaged in a cultural struggle to root out the old America of family, faith, and flag, and re-create society in a pagan image.”¹

      Buchanan’s value-packed epithets have much to teach American progressives, and the lessons are ultimately quite somber. But let us begin with the obvious,...

    • II Cigarettes, Alcohol, and Advertising
      (pp. 32-48)

      James Fenimore Cooper’s novelThe Pioneersstill raises issues of contemporary importance. Set in Cooperstown, New York, the settling of which was dominated by the author’s father, the novel addresses such issues as the fragility of the environment, the costs of “progress,” the authority of leaders and law, the pressures to conform, and the heroic but anarchic character of independence.¹ Although the novel contains many themes relevant to free speech, one stands out. At one point Judge Templeton’s daughter, Elizabeth (Templeton is the character modeled after Cooper’s father) returns to the Templeton mansion after an absence of many years. In...

    • III Racist Speech, Outsider Jurisprudence, and the Meaning of America
      (pp. 49-88)

      More than thirty years ago, Harry Kalven, Jr., one of the leading legal scholars of the twentieth century, wrote a book in which he attempted to analyze the impact of changing race relations and the civil rights movement on First Amendment law.¹ Kalven, who observed that African Americans did not often resort to the courts to combat racist speech,² was “tempted to say that it will be a sign that the Negro problem has basically been solved when the Negro begins to worry about group-libel protection.”³

      Times have changed (although few would claim that the plight of African Americans has...


    • IV Dissent and Injustice
      (pp. 91-120)

      Free speech theory should be taken beyond protecting or tolerating dissent: the First Amendment should be taken to reflect a constitutional commitment topromotingdissent. Although much dissent is worthless or worse,¹ the institutional promotion of dissent is necessary to combat injustice.²

      After tracing the assumptions supporting this position, first, I want to suggest that liberal theory underappreciates the importance or desirability of encouraging dissent. To the extent that this is so, however, that underappreciation has more to do with the focus of liberal theory than with the merits of the position. Second, far from encouraging dissent, dominant institutions in...

    • V The Politics of Free Speech
      (pp. 121-130)

      Conservatives have recently discovered the First Amendment, and they are beginning to like what they see: a banner for corporations seeking to dominate election campaigns,¹ for tobacco companies to hawk their wares,² for shopping centers to exclude demonstrators,³ and for media corporations to resist access,⁴ and a club to use against those who seek to regulate racist speech⁵ and pornography.⁶

      Conservative victories are not yet monumental, and liberals themselves divide on some of these issues, but many believe it is time for progressives to reconsider their historic commitment to free speech and press. Many have begun to wonder whether the...

  7. Notes
    (pp. 131-198)
  8. Index
    (pp. 199-204)