Steven H. Shiffrin: First Amendment Expert and Champion of Equality
by KENNETH BERKOWITZ
Dissenting, it almost seems, is part of his DNA. "From early on I had the character flaw of arguing with anyone about anything," he confesses. On Loyola University's debate team in Los Angeles (1959-1963) he remembers happily arguing both sides of a debate about whether Congress should have the power to reverse Supreme Court decisions. Later, as a college debating coach at San Fernando Valley State College, he taught his team that skill.
And as a professor at Cornell Law School he regularly polled his students on how they thought cases should be decided. "If the overwhelming majority of the class went in one direction, I argued back in another," he says. "My goal was to force them to think hard about why they were taking the positions they took." A night school student at Loyola Law School, Shiffrin made law review editor and graduated summa cum laude, first in his class, in 1975, with the highest grade point average in that school's history. "It was almost impossible for anyone else to get the highest grade in any class you took that Steve was in," recalls former classmate Stanley Goldman, now a professor at Loyola Law School.
“When we got word that Steve and Neesa might be interested in relocating to the more child-friendly university community of Ithaca, we pounced on the opportunity,” recalls Professor Gregory Alexander.
“Steve was a fantastic teacher, a genuinely original thinker, and a generous soul,” recalls Jack Jackson ’01, a former student of Shiffrin who is now a professor of politics at Whitman College. “He created an environment in which students and professor were engaged in a shared endeavor.”
Shiffrin’s early scholarly writing rejected the idea of a single theory of free speech. “I thought any such theory would be oversimplified or manipulated to produce results that fit,” he says.
In the 1990s, “I began read- ing mountains of books on political theory,” Shiffrin says. Dissent, he noticed, was their common core.
“I came to believe that dissenting speech should be given special prominence in any appreciation of free-speech values,” says Shiffrin. “All societies, democratic or not, are riddled with unjust hierarchies. They can never be entirely cleansed of injustice, but they can be improved,” he comments. “That is why dissent will always be needed to challenge existing customs, habits, traditions, institutions, and authorities.”
He touches on dissent in all three of his books, but it was so central to his second that it was part of its title: Dissent, Injustice, and the Meanings of America (Princeton University Press, 1999). In that book, he argued that governments should not only protect dissent but actively promote it to fight entrenched injustice.
But the First Amendment should not protect potentially harmful commercial speech, such as tobacco ads, he asserted (he called Big Tobacco “merchants of death and suffering”), nor, he now argues, should it extend to some forms of hate speech.
His other books are The First Amendment, Democracy, and Romance (Harvard University Press, 1990; paperback, Princeton University Press, 1993), which won Harvard Press’s Thomas J. Wilson Award for the best manuscript by a new author; and The Religious Left and Church-State Relations (Princeton University Press, 2009), which, when it was published, was one of Tikkun magazine’s twenty-five recommended books of the year.
“Steve is a true intellectual, a scholar of broad and capacious interests who is able to weave together insights from other disciplines in a rigorous and imaginative way,” said Alexander at Shiffrin’s retirement fete. “I could have gotten a Ph.D. just from the books on his reading list.”
“He is clearly one of the country’s top First Amendment scholars,” wrote C. Edwin Baker, University of Pennsylvania Law School professor, in Loyola of Los Angeles Law Review’s symposium issue honoring Shiffrin in 2007.
Also in that issue, UCLA Professor Kenneth Karst wrote: “Steve has explored the speech, press, and religion clauses of the First Amendment in ways that improve understanding
by the rest of us—not only academics but advocates in the trenches and judges who are willing to listen.”
Retired as of January 1, Shiffrin is immersed in his fourth book, What’s Wrong with the First Amendment?—his first for a broad audience.
Its subject? “In the U.S. we have idolized freedom of speech as a country to the detriment of privacy, fair trials, racial and sexual equality,” says Shiffrin.
His views crystallized follow- ing 2010–2011 Supreme Court rulings that stretched the First Amendment to protect graphic depictions of cruelty to animals, overly violent video games, and antigay demonstrations intended to cause emotional distress at the funerals of soldiers.
“Something has gone wildly wrong when justices have imprisoned themselves in a line of thinking that makes such results possible,” Shiffrin continues.
“At the same time the Court isn’t protecting speech where it should be,” he asserts. “It is slow to protect the rights of demonstrators, and it fails to protect the speech of students, public employees, and prisoners.”
It doesn’t have to be that way, he says. “In the book, I’ll contrast U.S. cases with cases from other democratic countries we respect that treat freedom of speech differently.”
As a teacher and colleague Shiffrin wins praise for his unflagging helpfulness.
“He had a wonderful, quiet way of making every one of us feel completely accepted and supported,” says Shannon Minter ’93, a former student who is now a lawyer with the National Center for Lesbian Rights.
Minter related how Shiffrin recently “not only took time to write a brilliant amicus brief on an important case my organization argued before the New Mexico Supreme Court, but also showed up in Santa Fe to hear the oral argument.” The case involved gay rights in conflict with religious liberty.
“Steve is a champion of equality in virtually every realm, and committed to the welfare of the least powerful among us,” says Cornell Law Professor Sheri Lynn Johnson.
In “his so-called retirement,” as Johnson dubbed it, Shiffrin plans to continue writing for a blog he cofounded, ReligiousLeftLaw, and to represent indigent defendants in criminal court in Ithaca.
He also will work to improve his already impressive Tuesday night duplicate bridge game, participate more in fantasy baseball, and continue to root wildly for the Los Angeles Dodgers and, he confesses, “any team playing against the Yankees.”
Now that sounds like a good way to get an argument going.
Expand Article Collapse Article