This essay reviews Dissent, Injustice, and the Meanings of America by Steven H. Shiffrin (1999).
Theorizing about the freedom of speech has been a central enterprise of contemporary legal scholarship. The important contributions to the debate are simply far too numerous to categorize. One ambition of this theorizing is the production of a comprehensive theory of the freedom of expression, a set of consistent normative principles that would explain and justify First Amendment doctrine. Despite an outpouring of scholarly effort, the consensus is that free speech theory has failed to realize this imperial ambition. Rather than searching for the global theory of the First Amendment, constitutional scholars are content to aim for a local theory; offering partial conceptualizations, local theories explain, justify, or critique some portion of free speech doctrine without attempts at global synthesis.
Steven Shiffrin's Dissent, Injustice, and the Meanings of America (hereinafter Dissent) stands squarely in the tradition of modest, localized theorizing about the freedom of speech. Rather than attempting to integrate all of free speech doctrine, he focuses on one free speech value: the value of dissent and its contribution to the illumination of particular First Amendment problems. This compact, densely argued, and brilliantly insightful book leaves free speech theory far the richer. Shiffrin has important things to say about flag burning, advertising, and racist speech. Moreover, Dissent addresses a topic that is all too often neglected by free speech theorists: the methods by which institutions other than courts, such as schools and the media, can promote the values of free speech. Throughout, Dissent never loses sight of its central thesis: The value of dissent is essential to understanding the freedom of speech.
Part I of this review provides a brief exposition of some of Shiffin's main points in Dissent. In part II, the author offers a critical analysis of Dissent’s central theory that the promotion and protection of dissent are central functions of the freedom of speech. In order to clarify Shiffrin's central claims, he compares his analysis with John Stuart Mill's famous defense of the liberty of expression in his essay On Liberty. Part III concludes with some observations about the lessons to be learned from Shiffrin's successes and failures.
85 Cornell L. Rev. 859-881 (2000) (reviewing Steven H. Shiffrin, Dissent, Injustice, and the Meanings of America (1999))
Scholarly Commons Citation
Solum, Lawrence B., "The Value of Dissent" (2000). Georgetown Law Faculty Publications and Other Works. Paper 874.