Dissent, Free Speech and the Continuing Search for the 'Central Meaning' of the First Amendment

Abstract

Since Holmes and Brandeis began articulating a broad vision of the Free Speech Clause of the First scholarly commentators have labored to offer a comprehensive, overarching theory of freedom of expression. In separate books, Professor Steven Shiffrin and Professor Stephen Carter propose a renewed focus on dissent as the central value of the Free Speech Clause. In Dissent, Free Speech, and the Continuing Search for the 'Central Meaning' of the First Amendment, Professor Ronald Krotoszynski examines and critiques these two dissent based theories. The review essay questions the feasibility of any dissent based theory of free speech in light of significant definitional and operational difficulties associated with applying such a theory to concrete cases. Moreover, Professor Krotoszynski raises specific objections to Professor Shiffrin's iteration of a dissent based theory of free speech. With respect to Professor Carter's proposals, the review essay generally agrees with Professor Carter's view that religiously motivated dissenters should enjoy the same free speech rights as secularly motivated dissenters. At the same time, however, one should question whether, contrary to Professor Carter's assertions, the community owes religiously motivated dissenters any special duty of care. The review essay explores the potential importance of dissent to a viable theory of freedom of speech, and concludes that, although protecting dissent is an important part of the free speech project, the project should not be defined solely in terms of facilitating dissent, in large part because such an approach would prove less effective at protecting dissent than more open-ended theories of free speech, such as those emphasizing democratic deliberation, autonomy, or the marketplace of ideas.