Document Type

Working Paper

Publication Date

2-11-2009

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; ERN Subject Matter eJournals; Financial Economics Network; Labor eJournals; Management Research Network

Abstract

Under the influence of radical feminism and critical race theory the last remnant of 1890s mechanical jurisprudence is beginning to give way to a view of speech that is flexible policysensitive and mindful of communication theory politics and setting Steven Shiffrins Dissent Injustice and the Meanings of America is a welcome addition to this emerging First Amendment legal realism vein of scholarshipThis Review begins in Part I by outlining Shiffrins book paying particular attention to its principal themes of flexibility of analysis on the procedural side and encouragement of citizen participation and dissent on the substantive side As Part II will make plain an interpretation of First Amendment law that places dissent at its center and protects speech insofar as it takes the form of dissent offers a vital corrective to social apathy and domination by big corporations Nevertheless any approach to free speech law that emphasizes even flexibly a single variable has overtones of the old formalist approach and is apt to work injustice in certain cases In particular Part II which focuses on Shiffrins treatment of hate speech shows that although he comes to the correct general conclusion by way of his dissentbased approach Shiffrin loses nuance by framing the problem in that fashion Part III outlines additional features that future realist analysis should consider Part IV draws on all of the above to posit a number of practical solutions to the problem of regulating hate speech The book review concludes with some lessons that realist First Amendment scholars should draw from Shiffrins book both from its formidable strengths as well as from its occasional lapses

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