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Lying, Reciprocity, and Free Speech – A Reply to Eight Critics

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Abstract

In this article, I reply to eight critics of my book Speech Matters: On Lying, Morality, and the Law. The topics include lying, promising, reciprocity, free speech, and the testimonial duties of institutions.

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Notes

  1. Thanks are also due to Barbara Herman, Gabbrielle Johnson, Rowan Meredith, Nicole Miller, William Rubenstein, and the editors of Law and Philosophy for good counsel and careful edits.

  2. The contrast with consequentialism is pursued at greater length elsewhere in an exchange with Leslie Kendrick. L. Kendrick, ‘How Much Does Speech Matter?’, Harvard Law Review 129 (2016): 997–1022 and S.V. Shiffrin, ‘Bedrock’, Harvard Law Review Forum 129 (2016): 242–257.

  3. ‘The Morality of Lying and the Murderer at the Door’, Law and Philosophy (2019), p. 443.

  4. Ibid., pp. 448–451 and ‘Lies Matter’, Law and Philosophy (2019), pp. 460–461.

  5. ‘Lies Matter’, p. 463.

  6. Ibid., pp. 462, 463.

  7. Ibid., pp. 457–459.

  8. Speech Matters, pp. 19–20.

  9. Ibid., pp. 19, 22. As I argue in the book, lies and their wrongfulness do not depend upon either the intent to deceive or the effect of deception. So, what I call ‘pure lies,’ that is, lies without deceptive effect or intent, are wrongful for the same primary reasons as lies that deceive, namely that all lies reflect an affirmation of a principle that, if public, render unreliable what should be a reliable and necessary channel of testimonial communication and undermine rational bases of trust. (Notice that Mills’ description of my definition of ‘pure lies,’ p. 116, isn’t quite accurate. Mill’s characterization of them focuses solely on lies that could not deceive even if believed because their content happens to be true, owing to a core mistaken belief by the speaker about what is true.)

  10. ‘Lies Matter,’ p. 457. I quibble with Mills’ definition and his elaboration of the conditions under which silencing can occur. First, I am unclear what sort of behavior satisfies the third sufficient condition. What does it mean for B to make it more difficult “for A to voice A’s opinion without risk of being deliberately misunderstood”? Should this be read as “deliberately misconstrued [by B]”? If not, who is doing the deliberate misunderstanding? The audience of A? That doesn’t seem right. If B tells an audience in advance that A often speaks metaphorically and hyperbolically and this description is inaccurate, that audience may misunderstand A’s factual allegations as metaphorical and hyperbolic. If B’s aim is for A to be misunderstood, that might count as silencing but I don’t think that the audience has deliberately misunderstood. Rather, the silencer has deliberately attempted to increase the likelihood that A will be misunderstood. I suspect that the agent who is deliberate here and the agent who misunderstands often come apart. Further, I am not sure the inaccuracy that primes the misunderstanding must be deliberate. Suppose B truly believes (inaccurately and culpably so) that A usually speaks metaphorically and hyperbolically; if B is sufficiently persuasive, B’s priming may provoke misunderstanding by the audience, although B did not aim for A to be misunderstood. What may be more important than whether the provoked misunderstanding was deliberate is whether the misunderstanding is the (indirect) product of an inaccurate attack on the credibility or sincerity of the speaker. Indeed, this possibility is suggested by Mill’s subsequent appeal to the role of stereotypes in his elaboration of the conditions under which silencing may occur.

    Second, Mills’ immediate elaboration of the conditions under which silencing may occur seem overly narrow; although, of course, his examples may not have been intended to serve as a comprehensive list. For example, there are other means of silencing than through exclusion via formal rules or through the perpetuation of stereotypes or other undermining norms. Consider drowning out her speech with chants, subliminally instructing the audience not to listen, or discrediting the speaker specifically and personally in unfair ways, but not by way of a norm. The last case also illustrates that a speaker may be silenced even when her sincerity is not undermined; her credibility or her standing to speak might be undermined and that could constitute silencing.

  11. S.V. Shiffrin, ‘Deceptive Advertising and Taking Responsibility for Others’, in M. Budolfson, A. Barnhill, and T. Doggett (eds.), Oxford Handbook of Food Ethics (Oxford: OUP, 2018): 470–493, at pp. 478–479 and 488–490. See also S.V. Shiffrin, ‘Learning About Deception From Lawyers’, Proceedings of the Aristotelian Society, Supplementary Volume  93 (2019): 69–90.

  12. ‘Lies Matter’, p. 457.

  13. Speech Matters, pp. 56–65.

  14. Ibid., pp. 53–54.

  15. Ibid., p. 54.

  16. Ibid., pp. 68–71.

  17. ‘Promising Under Duress’, Law and Philosophy (2019), pp. 476–478.

  18. See, e.g., Restatement of Contracts (2d) § 175 (a).

  19. ‘Promising Under Duress’, p. 469.

  20. Ibid., p. 478.

  21. And, if they are always sufficient, then how important is the difference between the standard view and Saprai’s view? On such an understanding, the standard view would have it that coerced promises have no moral force because they were coerced and the alternative view would have it that they have some moral force, but it is always overcome by factors having to do with the circumstances of duress. Where the two views are completely co-extensive and the relevant factors driving the conclusions are the same, the significance of the distinction diminishes.

  22. 324 N.Y.S.2d 22 (N.Y. 1971).

  23. See, e.g., Restatement of Contracts (2d) §§ 178, 179.

  24. Barendt rightly contrasts my method with Robert Post’s method (p. 487), a method I regard as peculiar. See, e.g., Robert Post, ‘Participatory Democracy and Free Speech’, Virginia Law Review 97 (2011): 477–489. Not only is Post’s unblinking focus on judicial understandings of freedom of speech incompatible with his own popular constitutional commitments, it is anti-democratic in another way. It reifies practice in a way that deprives theory of its power to operate as a critical source of reflection on practice, and it deprives judges and legislators of the resources to responsibly exercise their democratic powers to decide now what we should do and how to interpret our commitments. Although there is an important democratic role for respect for precedent, how great that respect should be also depends in substantial part upon how sound or unsound the precedent is. See also S.V. Shiffrin, ‘Methodology in Free Speech Theory’, Virginia Law Review 97 (2011): 549–559.

  25. ‘Thoughts on a Thinker-Based Approach to Freedom of Speech’, Law and Philosophy (2019), p. 488.

  26. Ibid., p. 489.

  27. Speech Matters, pp. 98–102.

  28. Ibid., pp. 99–101.

  29. Ibid., pp. 117, 153–154.

  30. ‘Thoughts on a Thinker-Based Approach to Freedom of Speech’, p. 490.

  31. 395 U.S. 444 (1969).

  32. 561 U.S. 1 (2010).

  33. Cf. Speech Matters, pp. 37–38 and 75–78.

  34. Ibid., p. 118.

  35. ‘Lies and Free Speech Values’, p. 502.

  36. Speech Matters, p. 118.

  37. ‘Lies and Free Speech Values’, p. 498.

  38. I discuss how an argument of this kind may support our regime of regulating deceptive advertising in Shiffrin, supra note 11, at pp. 478–490.

  39. Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972).

  40. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

  41. 564 U.S. 552 (2011).

  42. 481 U.S. 465 (1987).

  43. ‘Lies and Free Speech Values’, p. 500.

  44. See, e.g., ‘Lying, Speech and Impersonal Harm’, pp. 518, 520, 524, 525, 526, 529.

  45. Hatzis’ description (p. 518) that I take all discrepancies between what a speaker says and what a speaker thinks to be lies is also overbroad. Not all discrepancies between the assertion and the speaker’s mental content involve lies. After all, some discrepancies may be attributable to misspeaking or inadvertent imprecision. The lie, in my view, involves a deliberate assertion of content the speaker knows she does not believe (Speech Matters, p. 12).

  46. ‘Lying, Speech and Impersonal Harm’, pp. 520–521.

  47. Ibid., p. 529; Speech Matters, pp. 116–156.

  48. So, I do not see myself as defending a position sympathetic to Muller (‘Lying, Speech, and Impersonal Harm’, p. 532) or to other standard forms of obscenity regulation. Graphic depictions displayed in ways that intrude on citizens’ mental privacy or that are used to harass or subordinate may be a different matter, but the case for their regulation has nothing to do with ‘sexual propriety’.

  49. Shiffrin, supra note 2, at pp. 245–248. Does my position in Chapter 5 undermine my position in Chapter 4, as Hatzis interestingly suggests? As his criticism goes: Either our toleration of pure autobiographical lies undermines the rationality of the communicative culture in which case toleration is hard to understand, or it does not, in which case we have less reason to worry about the prevalence of other lies. My answer in brief is that I do think pure autobiographical lies are morally wrong and that they inflict damage on relationships and on the reliability of testimony by isolating speakers and by offering rational grounds for doubt. Nevertheless, given the social meaning and symbolism of regulation and toleration, there are strong reasons associated with equality and fraternity not to regulate pure autobiographical lies. The distinctive applicability of those reasons to pure autobiographical lies generates a delineable boundary that works, rationally, in some of the ways that I claim the boundaries of justified suspended contexts do. In this case, those boundaries block the inference that the absence of regulation suggests the speech is innocuous or acceptable.

  50. ‘Lying, Speech and Impersonal Harm’, p. 524.

  51. Debs v. United States, 39 S. Ct. 252 (1919).

  52. Frohwerk v. United States, 249 U.S. 204 (1919).

  53. Schenck v. United States, 249 U.S. 47 (1919).

  54. Speech Matters, pp. 125–129.

  55. Ibid., pp. 79 ff. and pp. 120 ff., respectively.

  56. These represent two different ways of understanding the Brandenburg test and what should count as inciting or producing action through speech. I defend a more speech-protective interpretation of Brandenburg than many interpreters (including Hatzis), so it is ironic that Hatzis interprets my position as closer to ‘clear and present danger’ than even the less speech-protective interpretation of Brandenburg (‘Lying, Speech and Impersonal Harm’, p. 534). See also S.V. Shiffrin, Speech, Death, and Double Effect, 78 NYU Law Review (2003): 1135–1185, at pp. 1152–1153.

  57. ‘Lying as a Political Wrong’, Law and Philosophy (2019), p. 513.

  58. To be sure, the wrong of lying does not sound only in terms of reciprocity or hold only between those in reciprocal relations. Sincerity is a duty within relations of reciprocity but these relations of reciprocity layer on top of and reinforce a duty that also governs those who do not stand in rich reciprocal relations with each other.

  59. Speech Matters, pp. 120ff.

  60. Ibid., pp. 157, 162.

  61. ‘Lying as a Political Wrong’, pp. 514–515.

  62. Ibid., p. 512.

  63. Speech Matters, pp. 90–92.

  64. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, Law and Philosophy (2019), p. 538.

  65. Speech Matters, pp. 22–23.

  66. Ibid., pp. 194 ff.

  67. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, p. 541.

  68. Shiffrin, supra note 11, at pp. 478–490.

  69. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, p. 551.

  70. Speech Matters, p. 213, fn. 42 (mentioning university governance and IRB oversight as well as research and teaching activities). See also, ibid., p. 205, fn. 29 (detailing the cases and the sorts of criticisms about grant funding, handling of sexual harassment claims, and other governance matters, the voicing of which has been used to sanction professors who are critical of university administration).

  71. Speech Matters, pp. 206–211.

  72. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, p. 547.

  73. See my discussions of the legitimacy of regulation to combat discrimination in workplaces and other branches of the commercial sphere in S.V. Shiffrin, ‘What is Really Wrong with Compelled Association?’, Northwestern University Law Review 99 (2004): 839–888, at pp. 877–879. See also S.V. Shiffrin, ‘Race, Labor, and the Fair Equality of Opportunity Principle’, Fordham Law Review 72 (2003): 1643–1675, at pp. 1651–1652 (discussing the relation between freedom of expression and anti-discrimination principles) and S.V. Shiffrin, ‘Inducing Moral Deliberation: On the Occasional Virtues of Fog’, Harvard Law Review 123 (2009): 1214–1246, at pp. 1244–1245 (discussing how sexual harassment regulations may induce important forms of democratic deliberation between citizens).

  74. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, pp. 551–552.

  75. Speech Matters, pp. 16–19, 186–188.

  76. Speech Matters, pp. 16, 41.

  77. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, p. 539.

  78. Speech Matters, pp. 194 ff., p. 199 ff., and p. 194, respectively.

  79. Speech Matters, pp. 16–19, 186–188.

  80. Shiffrin, supra note 2, at pp. 248–251.

  81. Speech Matters, pp. 188–191.

  82. Ibid., pp. 190–191.

  83. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, p. 540, fn 3.

  84. Speech Matters, pp. 189–191.

  85. Shiffrin, supra note 11, at pp. 478–490.

  86. Speech Matters, pp. 194–199.

  87. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, p. 543.

  88. Ibid., p. 547. It gives me particular pleasure to be thus affiliated with another free speech ‘romantic,’ albeit one with a more eclectic methodology. See Steven H. Shiffrin, The First Amendment, Democracy, and Romance (Cambridge: Harvard University Press, 1990).

  89. ‘Is Sincerity the First Virtue of Social Institutions? Police, Universities, and the Regulation of Free Speech’, pp. 549–550.

  90. That tension and the betrayal of the values of the university was on display in Wheaton College’s suspension of a tenured professor who announced her intention to wear a hijab as a symbol of Christian solidarity with members of the Muslim faith. See ‘The Professor Who Wore a Hijab and then Lost Her Job’, New York Times Magazine, October 13, 2016.

  91. Speech Matters, pp. 213, 221–223.

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Shiffrin, S.V. Lying, Reciprocity, and Free Speech – A Reply to Eight Critics. Law and Philos 38, 555–597 (2019). https://doi.org/10.1007/s10982-019-09363-5

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