Introduction to Special Issue on Seana Shiffrin’s Speech Matters

Promising Under Duress Abstract In her chapter “Duress and Moral Progress”, Seana Shiffrin offers a novel perspective on coerced promises. According to the dominant view, these promises confer no right to performance on the coercer and do not create new reasons for the victim. Shiffrin accepts that these promises fail to confer rights, but disagrees that they never alter the victim’s moral profile. She argues that they do at least where promises are ‘initiated’ by the victim, rather than ‘dictated’ by the coercer. The initiation of a promise, albeit in far from ideal circumstances, opens the door, Shiffrin claims, to valuable opportunities for moral progress. In this response, I argue that Shiffrin makes a misstep by not rejecting the dominant view altogether. I suggest that the older Hobbesian picture, according to which coerced promises do confer rights, is supported by our moral and legal practices. Furthermore, it makes moral progress more likely.

Lies Matter

Lying as a Political Wrong Abstract In Speech Matters, Seana Shiffrin claims that certain lies should be tolerated on grounds of political inclusiveness. If political equality requires perfect compliance with fair terms of social cooperation, and if lying violates those terms, then liars might be at risk of losing their standing as political equals. To avoid that draconian result requires accommodation of moral imperfections, including some lies. In response, I argue that Shiffrin’s view may have broader implications for requirements of sincerity under non-ideal political conditions. In some circumstances, where there is widespread defection from fair terms of cooperation, lying might be a moral but not a political wrong.

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

Lies and Free Speech Values Abstract In the short time since Seana Shiffrin published Speech Matters, ‘fake news’ and ‘alternative facts’ have become full-blown phenomena, and various forces have destabilized the line between truth and falsity. Now more than ever, Shiffrin’s project is one of urgent importance. This essay examines Chapter Four of Speech Matters, which asks the crucial question: when and how may the law regulate lies? Shiffrin concludes that the law could regulate lies much more often than it does, though sometimes it ought not to for pragmatic reasons. For all of Shiffrin’s masterful explication, there is perhaps more to say in the space between Chapter Three’s moral account of free speech and Chapter Four’s legal one. Setting existing doctrine aside, how would a society translate the moral principles of Chapter Three into a system of law? Which worries are intrinsic to free speech, and which are purely pragmatic? In other words, what does a thinker-based account of law look like?

The Morality of Lying and the Murderer at the Door Abstract The article engages with some of the main claims in chapter 1 of Seana Shiffrin’s book Speech Matters. There, Shiffrin sets out a case for a general moral prohibition on lying, based on the conditions required for reliable speech, and circumscribes the permissible falsehoods that could be uttered to would-be moral criminals, such as Kant’s familiar murderer at the door. I raise a few questions about the case for the general moral prohibition on lying and about Shiffrin’s basis for distinguishing between the sorts of lies that, on her view, one is and is not permitted to tell would-be moral criminals so as to avert harm.

Is Sincerity the First Virtue of Social Institutions? Police, Universities, and Free Speech Abstract In the final chapter of Speech Matters, Seana Shiffrin argues that institutions have especially stringent duties to protect speech freedoms. In this article, I develop a few lines of criticism. First, I question whether Shiffrin’s framework of justified suspended contexts is appropriate for institutional settings. Second, I challenge the presumption that the knowledge-gathering function performed by police is necessarily compromised by insincere practices. Third, I criticize Shiffrin’s characterization of the university as involving a complete repudiation of enforced consensus, and I express doubts about the close connection between education and democratic legitimation that Shiffrin endorses. Finally, I raise a problem with the book’s overall argument: even if one agrees that speech freedoms are necessary for moral development, they also may be threatening to moral development. The upshot is that the protection of speech should be modulated in order to account for the potential conflicts between sincerity and other valuable ends, rather than being oriented above all to sincerity.

Lying, Speech and Impersonal Harm Abstract Should the law punish the mere utterance of lies even if the listener has not been deceived? Seana Shiffrin has recently answered this question in the affirmative. She argues that pure lying as such harms the moral fabric of sincerity and distorts the testimonial warrants which underpin communication. The article begins with a discussion of Shiffrin’s account of lying as a moral wrong and the idea of impersonal harm to moral goods. Then I raise two objections to her theory. First, it does not explain persuasively why the fabric of sincerity is so vulnerable to pure lying. Second, it underestimates the need for a causal link between the alleged harm and the speech the government suppresses. I explore the function of the causal inquiry in constitutional law and suggest that if Shiffrin’s theory were to become the standard for adjudication in freedom of expression cases, protection for speech would deteriorate.

Thoughts on a Thinker-Based Approach to Freedom Of Speech Abstract While agreeing with Seana Shiffrin that any free speech theory must depend on assumptions about our need for free thinking, I am sceptical about her claim that her thinker-based approach provides the best explanation for freedom of speech. Her argument has some similarities with Mill’s argument from truth and with self-development theories, though it improves on the latter. But the thinker-based approach does not show why political discourse, broadly construed, is protected more strongly in all jurisdictions than gossip and sexually explicit speech. Nor does it explain why the ‘mass’ speech of corporations and the mailings of political parties and charities are fully protected by provisions such as the First Amendment. My article concludes with some reflections on the relationship of abstract political theory such as Shiffrin’s to constitutional law; abstract theory must inevitably make some compromises if it is fully to explain constitutional jurisprudence.