Steven H. Shiffrin (1941-2023): A maverick who loved and lived the life of dissent — First Amendment News 382

It was late 1974 and Steve (then in his final months of the evening program) was making the case for our law review to publish an article by George Anastaplo. The editorial board had conflicting views about whether to publish this highly unorthodox piece of scholarship. As I recall, Steve’s recommendation sealed the deal, and the article ran as the lead in the 1975 issue of the Loyola of Los Angeles Law Review.

Why did he push so hard for this article? Perhaps it had less to do with the particular essay than with the man, this dissident free-speech hero who lost his 1961 First Amendment case in the Supreme Court but who won a remarkable dissent from Justice Hugo Black, which in part read:

Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free. 

To appreciate the spirit of those words in all their real and symbolic ways is to know what made my longtime friend and classmate Steven H. Shiffrin tick. It is the life he lived both in romantic and scholarly ways and with such passion and grace.

There is, of course, much to say about the remarkable arc of Steve’s career: from his teaching and coaching debate days at Memphis State University and San Fernando Valley State College, to his Loyola Los Angeles Law Review student comment (approvingly cited by the Supreme Court), to his engaging teaching years at UCLA and Cornell Law schools, to his many scholarly books and articles, to the widely used casebooks he co-edited, and to his post-retirement pro bono criminal justice work (including his defense of pacifists arrested for their protests) . . . and more! But all that is another matter for another day. For now, below are a few words from several of Steve’s friends about his life in the law, primarily First Amendment law. Following that are lists of items about his scholarship and related activities.

One more thing that was gospel to Steve: To have real faith in the First Amendment one must be willing to shun impulsive worship at the altar of the orthodoxy of the day, whichever way its winds blow. To be a Socrates, or a Walt Whitman, or a Ralph Waldo Emerson, or even a Simone Weil — that was the measure of this man, my eclectic and rebellious friend.

Prelude: the amicable debater

“I first met Steve Shiffrin when I joined the USC Law School faculty in 1983. He was already a tenured professor at UCLA Law School and was incredibly kind in reaching out to me when I arrived in Los Angeles. He had been a legend in college debate circles from his successes as a debater and a coach. I had been a college debater about a decade later and because of those connections he went out of his way to make me feel welcome in Los Angeles. I always will be enormously grateful for the warmth he showed me then and throughout my career. But as I observed over the years, he treated everyone with that warmth and kindness.” — Erwin Chemerinsky

Related

• Gerald Uelmen, “Steve Shiffrin: Master Debater,” Loyola L.A. Law Review (2007) (“In 1960, the world of intercollegiate debate was a very structured, highly competitive setting. There were three essential ingredients to succeed in this environment: a good coach, lots of preparation, and an excellent partner. And for one brief, shining moment, all of these elements came together when Steve and I were undergraduate students at Loyola University in Los Angeles.”)

The momentous First Amendment case 

“I remember Steve’s excitement about working on the family hour case, when he was clerking for Judge Warren Ferguson. He was so excited about working on such a momentous First Amendment case straight out of law school. I think that case, and all of his research on it, laid the foundation for his long history of First Amendment law, teaching it, and teaching us about it — he just had a twinkle in his eye every time he talked about that case.” — Robert M. Myers (law school classmate).

Intellectual honesty

“In writing about the freedom of speech, Steve Shiffrin somehow managed to be both aspirational and grounded, incisive and comprehensive, conceptual and empirical, original and informed, romantic and rational, historical and prescient, bold and wise. He gave us an important Big Idea — the centrality of the rebel — but also many patient, exhaustive, persuasive critiques of contemporary doctrine. He was ‘balanced’ in the best way, always as a step to understanding, never as a substitute for rendering judgment. His intellectual honesty was central to his being, as was his concern about the impact on the lives of the ideas he introduced, clarified, or discredited.

"For me and I’m sure for many others, Steve has always been one of the most instructive members of our scholarly community. His legacy of publications and the memory of his example will ensure that he remains so for years to come.” — Vincent Blasi 

“[T]he national picture drawn by West Virginia Board of Education v. Barnette is Whitmanesque and Emersonian: it resonates strongly with the romantic tradition . . . [and] is also romantic in an aspirational sense . . . The First Amendment protects moral lepers.” 

The First Amendment, Democracy, and Romance (1990)

Advocacy vs. idolatry

“I tremendously admire his scholarship on the First Amendment. No one has been more thoughtful or more nuanced in approaching issues of freedom of speech. Although a fierce advocate of free expression, he also objected to what he called ‘free speech idolatry.’ He challenged the Court’s prioritizing speech over other important values and objected to a categorical approach to the First Amendment that obscured protection of other crucial interests. As his colleague Professor Michael Dorf wrote, Steve rightly saw protecting dissent as a core purpose of the First Amendment.

“Steve lives on in countless ways, including through his magnificent scholarship which should guide and inform discussions of free speech for years and decades to come.” — Erwin Chemerinsky

Champion of dissent

“We have lost a magnificent, demanding, and inspiring champion of dissent, who courageously led by example. The vibrant world of First Amendment scholarship is diminished and has grown pale. We shall miss him terribly.” — Robert Post

“I am immensely saddened by Steve’s death. When I came into law teaching, Steve was already a titan of First Amendment scholarship whose work influenced me greatly. Later I was thrilled to become his friend and ultimately his casebook collaborator. Steve was one of the dissenters that he celebrated, with an abiding suspicion of stuffed shirts, bureaucrats, and self-satisfied power-holders. But he was more warm and twinkly and generous than he was cantankerous, though it was part of his charm to be a bit of the latter, too. I never encountered him without his brightening my day.” — Richard Fallon

Freedom of expression in all its marvelous variations

“This is such a loss. Steve was sweetness personified, but with a brain that gave his heart a run for the money. His smile was wry and purposeful but never mean. I will miss him, as will we all.

"I never stopped admiring each new turn in Steve’s own thought, especially about freedom of expression in all its marvelous variations. Here’s to the undying memory of my late friend and long-distance colleague, Steve Shiffrin.” — Laurence Tribe

A values-pluralist and a rules-skeptic

Steve was a values-pluralist and a rules-skeptic. He did not think that the First Amendment could be reduced to a single value or encapsulated in formal rules. Nonetheless, his signature scholarly achievement — the bumper sticker or elevator pitch version of his oeuvre — can be summed up in a single word: dissent. Steve's books and articles made a powerful argument that the most important (though not the only) purpose of free speech and freedom of the press in a democratic society is to shield dissenters. Like Brandeis said (in his Whitney concurrence) about the framers' supposed view of liberty, Steve valued [dissent] both as an end and as a means.

His commitment extended beyond abstract principle. After Steve took emeritus status — and even as he continued to write influential books and articles — he undertook a course of study to train himself to represent indigent clients in the local courts. The role of lawyer was hardly unfamiliar. For three decades, Steve had served as counsel to Irell & Minella, principally representing media companies. Thus, when he returned to litigation, it did not take long for free speech clients to come knocking. Steve did not disappoint.

Steve's moral commitments were related to his legal views. He was a fierce critic of the Roberts Court's claim that the categorical exceptions to free speech were rooted in history — which he derided as the “frozen categories” approach. His own normative views were closer to those practiced by nearly every other constitutional democracy — allowing for greater regulation of hate-speech, for example. He was especially critical of what he regarded as excessive protections for commercial speech. And while he thought that the landmark ruling in New York Times v. Sullivan was clearly correct, he disapproved of the extension of the shield against defamation liability for reporting on so-called “public figures.” He thought that the press needs breathing room to cover public officials but that the public’s interest in the lives of celebrities was tawdry gossip that did not merit special protection.

— Michael Dorf

Critical perspectives on America’s contemporary speech culture

“I first met Steve through my scholarly projects with Ron Collins. For one memorable example, Steve generously agreed to be interviewed for hours during the preparation of our book, ‘On Dissent.’ His thoughtful commentary proved invaluable. But it was during Steve's year as a visiting professor at Seattle University Law School that we truly became friends. He taught a First Amendment seminar that year, and he asked me to team-teach the sessions dedicated to the second edition of our book ‘The Death of Discourse.’ Of all our coauthored books, this was clearly his favorite, primarily because he understood and valued our critical perspectives on America’s contemporary speech culture. Even though we did not see eye to eye on all of the philosophical twists and turns in that book, Steve clearly reveled in the exchange of challenging ideas. Unquestionably, when it came to informed engagement with Steve, meaningful discourse was always part of the equation as was congeniality. I miss both that and Steve!” — David M. Skover

A citizen with a strong sense of civic responsibility

“Steven Schiffrin was, quite obviously, an outstanding scholar. He contributed much to the general discussion of the First Amendment, including the very important topic of ‘government speech.’ But I will remember him for two other attributes as well. 

"Most of our in-person contact occurred at the annual conventions of the American Political Science Association. He was genuinely interested in the inter-disciplinary conversation, which I always thought spoke very well for him. But I was also impressed by his civic engagement in Ithaca. As I recall, he translated his professorial interest in theories of public education into a willingness to serve on the local school board, which again spoke very well for his identity as a citizen with a strong sense of civic responsibility. His theories about what was entailed by membership in a political community were manifested by concrete practice. His memory will indeed serve as a blessing.” — Sandy Levinson

The absent-minded professor

“Steve pushed the absent-minded-professor aesthetic to its furthest frontiers. He did not care to wear suits, shave, file, or clean his ant-infested car. He thrived, however, on social interaction. He was a magnetic teacher, underscoring his lectures with theatrical gesticulations. He forged connection after connection with students, colleagues, friends, and strangers by asking questions of people, one by one, to figure out what they thought and cared about.” — Steve Shiffrin obituary

Scholarship as a collaborative and cooperative enterprise 

“Working on the Casebook, and knowing Steve’s scholarship in general, made clear to me Steve’s quite extraordinary meticulousness about just what it is to do scholarship. He was obsessive about being thorough in references, about totally knowing and crediting the scholarly terrain, and about acknowledging the contributions of others. Even apart from his own important and enduring substantive contributions, he will be remembered for treating scholarship as the genuinely collaborative and cooperative enterprise that it should be, and that Steve’s own work exemplifies better than almost anyone else.” — Fred Schauer 

A Shiffrin sampler 

Below are a few samples of Steve’s First Amendment scholarship. 

Books (other than casebooks)

• “What’s Wrong with the First Amendment,” Cambridge University Press (2016)
• “The Religious Left and Church-State Relations,” Princeton University Press (2009)
• “Dissent, Injustice, and the Meanings of America,” Princeton University Press (1998)
• “The First Amendment, Democracy, and Romance,” Harvard University Press (1990), reprinted by Princeton University Press (1993), reviewed by Ronald Collins, “Love Story,” ABA J. (Oct. 1990)

Select articles and reviews

• “Qualified Absolutism, Categorical Balancing, and New Categories,” Albany Law Review (2022)
• “Morality and the First Amendment,” First Amendment Law Review (2019)
• “The Dark Side of the First Amendment,” UCLA Law Review (2014)
• “What Is Wrong with Compelled Speech?,” Journal of Law & Policy (2013)
• “Dissent, Democratic Participation, and First Amendment Methodology,” Virginia Law Review (2011)
• “Freedom of speech and two types of autonomy,” Constitutional Commentary (2011)
• “The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers,” Cornell Journal of Law & Public Policy (2002)
• “Racist speech outsider jurisprudence and the meaning of America,” Cornell Law Review (1994)
• “The Politics of the Mass Media and the Free Speech Principle,” Indiana Law Journal (1994)
• “The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment,” Northwestern University Law Review (1984)
• “Government Speech and the Falsification of Consent,” Harvard Law Review (1983)
• “Liberalism, Radicalism, and Legal Scholarship,” UCLA Law Review (1982)
• “Government Speech,” UCLA Law Review (1980)
• “Defamatory Non-Media Speech and First Amendment Methodology,” UCLA Law Review (1978), also in Ronald Collins, ed., “Constitutional Government in America” (1980), pp. 9-43
• “The Rhetoric of Black Violence in the Antebellum Period: Henry Highland Garnet,” Journal of Black Studies (1971) (at this time Steve was teaching at San Fernando Valley State College)

YouTube

• “What's Wrong with the First Amendment?” Cornell Law School (2017) (Michael Dorf, Vincent Blasi, and Seana Shiffrin commenting on Steve’s book followed by a reply from Steve)

[INSERT VIDEO LINK HERE]

• “The Theology of Our Establishment Clause,” Case Western Reserve University Law School (2011) (William A. Brahms Lecture on Law and Religion)
• “Virginia Law Review Symposium on Free Speech and Participatory Democracy,” (2011) (Vince Blasi, Steve Shiffrin, Eugene Volokh, Robert Post, James Weinstein, and Lillian Bevier)

Congressional testimony

•  Senate testimony, “The Sensible Advertising and Family Education Act” (1993), pp. 28-30.
• Senate testimony, “Broadcasters' Public Interest Obligations and S. 217: The Fairness in Broadcasting Act of 1991,” Senate Committee on Commerce, Science, and Transportation. Subcommittee on Communications (1992), pp. 120-125.
• House testimony, “Health Warnings on Alcoholic Beverage Advertisements,” House Subcommittee on Transportation and Hazardous Materials (1990), pp. 291-299.

Supreme Court briefs

• Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, amicus brief on behalf of Freedom of Speech Scholars (2017, Steve was the counsel of record)
• Electronic Arts, Inc. v. Davis, amicus brief on behalf of 31 constitutional law and intellectual law professors presented to Supreme Court (2016) (cert. denied)
• Packingham v. North Carolina, amicus brief on behalf of professors Bhagwat, Garnett, Koppelman, O’Neil, Lessig, Levinson, Post, Sager, Shiffrin (Steve and Seana), Stone, Strossen, Val Alstyne, Weinstein with Eugene Volokh, counsel of record.

Miscellaneous

• Ronald Collins and David Skover, “On Dissent: Its Meaning in America” (Cambridge University Press 2013) (Steve was one of the “Informationis Personae” in the book)
• “What Would a Liberal Supreme Court Actually Do?,” Newsweek (March 21, 2016)
• “Thoughts on Commercial Speech: A Roundtable Discussion,” Loyola L.A. Law Review (2007) (Ronald Collins, Steve Shiffrin, Erwin Chemerinsky and Kathleen Sullivan)
• C. Edwin Baker, “Steve Shiffrin: Friend and Scholar,” Loyola L.A. Law Review (2007)
• Seana Shiffrin, “Compelled Association, Morality, and Market Dynamics,” Loyola L.A. Law Review (2007)
• Gerald P. Lopez, “Why Should We Honor Steve Shiffrin,” Loyola L.A. Law Review (2007)
• Kenneth Karst, “Steve as Colleague and Friend,” Loyola L.A. Law Review (2007)
• “Symposium—Commercial Speech: Past, Present & Future: A Tribute to Steven Shiffrin,” Loyola L.A. Law Review (2007)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• Vidal v. Elster (Robert Barnes article here)
• O’Connor-Ratcliff v. Garnier
• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
• United States v. Hansen (argued, March 27) (Volokh commentary here)
• Counterman v. Colorado (argued, April 19)

Pending petitions

• Mazo v. Way
• Tingley v. Ferguson
• Frese v. Formella
• National Rifle Association of America v. Vullo
• Mobilize the Message v. Bonta
• U.S. v. Hernandez-Calvillo
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Klein v. Oregon Bureau of Labor and Industries

State action

• O’Connor-Ratcliff v. Garnier (cert. granted)
• Lindke v. Freed (cert. granted)

Qualified immunity

• Novak v. City of Parma (cert. denied)

Immunity under Foreign Sovereign Immunities Act 

• NSO Group Technologies Limited v. WhatsApp, Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)

Section 230 immunity

• Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)

Review denied

• Price v. Garland
• Keister v. Bell
• Morgan v. Arizona

Previous FAN

FAN 381: “New Knight First Amendment Institute report and documentary: ‘Covering Democracy: Protests, police, and the press’”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Mr. Collins.