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97 Va. L. Rev. 559 (2011)
Dissent, Democratic Participation, and First Amendment Methodology

handle is hein.journals/valr97 and id is 569 raw text is: DISSENT, DEMOCRATIC PARTICIPATION, AND FIRST
Steven Shiffrin*
T OO many values interact in too many complicated ways to ex-
pect that a single value, or small set of values, would emerge as
the transcendent master value in resolving freedom of speech ques-
tions. Because of this, an eclectic approach is both the most de-
scriptive and the best normative methodology with which to ap-
proach free speech issues.! It follows that a politically centered
approach to the First Amendment is overly limited. Indeed, I will
argue that if one is forced to find a center for the First Amend-
ment, the protection and promotion of dissent is far more promis-
Freedom of speech should be valued for many reasons-not only
liberty, self-realization, freedom, and autonomy but also truth,
combating injustice, adaptation to change, democracy, equality, as-
sociation, freedom of thought, and even order. At the same time,
the exercise of free speech can interfere with order, reputation,
privacy, decency, and intellectual property, among others.
* Charles Frank Reavis, Sr., Professor of Law, Cornell University.
'Steven H. Shiffrin, The First Amendment, Democracy, and Romance 9-45 (1990)
[hereinafter Shiffrin, Romance]; Steven Shiffrin, The First Amendment and Eco-
nomic Regulation: Away from a Genera. Theory of the First Amendment, 78 Nw. U.
L. Rev. 1212, 1216, 1251-55, 1283 (1984); Steven Shiffrin, Defamatory Non-Media
Speech and First Amendment Methodology, 25 UCLA L. Rev. 915, 917, 955-58
2 See Steven H. Shiffrin, Dissent, Injustice, and the Meanings of America 127-30
(1999); Shiffrin, Romance, supra note 1, at 100-01, 108-09. There is a difference be-
tween the First Amendment as a source of national identity and as a source of law
regulating human relations. Identifying the protection and promotion of dissent with
the First Amendment has considerable advantages over political participation. I do
not maintain that a pluralistic approach to First Amendment values is an effective
source of national identity, though it is important for wise decision making. At the
same time, it is important to recognize the special importance of both dissent and po-
litical participation in decision making-though, as I will suggest, dissent frequently
deserves protection even when it is not political.


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