Vol. 9 No. 7 (July 1999) pp. 321-323.

DISSENT, INJUSTICE, AND THE MEANINGS OF AMERICA by Steven H. Shiffrin. Princeton: Princeton University Press, 1999. 218 pp.

Reviewed by David E. England, Department of Political Science, Arkansas State University.

 

Professor Shiffrin argues that there is an alternative "story" about America, a story that has meaning for the interpretation of the free expression provisions of the First Amendment. Not only is there the dominant story about a society that values liberty, but there is also a story about a society valuing political equality and social and economic justice. The realization of that story, Shiffrin continues, necessitates a dissent model of expression that would facilitate the ability of the marginalized to point out their condition to others, begin grassroots movements, and compete more effectively against the powers represented in the status quo. Shiffrin, being realistic, does not claim the dissent model will erase injustice, but does see it as a necessary ingredient in the effort.

The current interpretations of the free expression provisions, e.g., the free marketplace of ideas and the two-tier theory of expression, do not provide a stable ground for a dissent-valuing perspective. In an analysis of the flag-burning and National Endowment for the Arts disputes, Shiffrin demonstrates how those doctrines may actually militate against dissent. The former depends too heavily on the definition of what is an "idea" and the latter on the definition of what is "political." Liberal theory underlying those interpretations also does not go far enough. Rawls prizes autonomy but would not allow the state to define a collective good such as justice that would support the dissent model. John Stuart Mill’s focus on dissent is solely aimed at the political and would not encompass other forms of injustice. Additionally, deconstructionism, while its methods may point out the need for dissent, cannot firmly ground it as a model.

Shiffrin’s argument begins with the realization that there are power hierarchies in the U.S. that can and do sometimes result in injustices, even if the injustice only comes about because people act as humans in a self-interested manner or with conscious/uncon-scious biases (there is no hint of a "grand conspiracy" of injustice in this work). Recognizing the injustices that sometimes occur (especially to the marginalized) is difficult because:

  1. the beneficiaries of the injustices make the system seem attractive to all,

  2. our psychological need to see our system as just, and

  3. a natural tendency not to rock the boat. Dissent, not only permitted but promoted, is the only method by which injustice may be brought to consciousness and remedial action inaugurated.

Aggravating the propensity not to see injustice is a systemic failure to allow a voice to the marginalized who might seek to make their plight known. The media’s record is poor in that regard with its tendency to reinforce the status quo due to its commercial nature, its stress on action (such as the political "horse-race") and not information in an effort to attract readership/listeners, and its effective marginalization of those who are not in the establishment (e.g., non-billionaire third-party candidates).

The Supreme Court, Shiffrin claims, has a spotty record in fostering dissent. Its record in allowing dissent from the government is rather good, he claims. However, more protection for whistle-blowers and loosened restrictions on the political activity of government employees is called for. The Court’s record in allowing criticism of officials outside the government is theoretically good but in practice poor. He refers here to the "public figure" category who are held to the same standard of proof as "public officials" in any libel/slander action they might bring. The rub is that the definition of a public figure is too restrictive. Shiffrin notes that even the CEO of a large corporation whose actions can and do affect thousands and millions is still considered under the Court’s definition a private individual who can more easily prevail at suit for libel/slander. This effectively stifles criticism of the leadership of the U.S.’s corporate structure (unless the structure is divided against itself as, for example, when one company is the subject of a government investigation and its competitors revel in it).

The Court’s record in dismantling barriers to dissent is also poor. Shiffrin especially notes restrictions on expression in public places governed by the time, place, and manner test as well as expression limitations on private property such as malls. The Court’s obeisance to the expression rights of broadcasters and its emphasis on expression rights when reviewing the Federal Election Campaign Act also receive his vigorous criticism.

In short, according to Shiffrin, both the mass media and the Court have acted to make dissent difficult. It is important to note, however, that the author does not subscribe to the capture thesis, which would call for governmental regulation of expression. Shiffrin argues that such regulation and abandonment of the free speech principle would actually act against the interests of dissenters whose success has historically been tied to grassroots movements actuated by free expression.

While he is not very sanguine about the future, he does offer a general program to make dissent a more dominant story in the U.S. The difficulty with the program offered is that its implementation would demand that the dissent story already be dominant. For example, he urges a revision of the educational process that would empower students with the will and talent to challenge the system. Yet, if there is any place majoritarianism holds sway, it is in the public schools under the direction of elected school boards.

Some specific actions are also proffered as a beginning place for discussion. He neither claims his list is exhaustive or even presents the best methods for bringing the dissent story to the fore. Some might have promise, but some are flawed. For example, he seems to urge that broadcasting licenses be sold with conditions guaranteeing access to alternative viewpoints. However, such a proposal would both strengthen the free expression claims of the broadcasters since a property right could be claimed and make commercialism in the media even more important.

Shiffrin has provided readers with a challenging work that is well-worth the reading and, in the opinion of this reviewer, well-worth the doing. This well-documented book is written in an engaging style with its theme and major points lucidly explained. Very noteworthy is the author’s penetrating analyses of Supreme Court cases, especially his analysis of hate speech in R.A.V. v. CITY OF ST. PAUL. Shiffrin has produced a work that is appropriate and necessary reading for anyone interested in social justice and/or the theory of freedom of expression. There certainly should be room on the bookshelf for this one, and it would make a very strong supplementary text for honors/grad-uate/professional classes dealing with freedom of expression.

Copyright 1995