Socratic free speech scholar Frederick Schauer dies at 78 — First Amendment News 446
“If the answers to questions like these turn out to be consistent with the received wisdom, then understanding has been substituted for blind acceptance and analysis substituted for platitudes.” Fred Schauer (2008)
New York Times described him as the “scholar who scrutinized free speech.” How true, and in so many ways. Schauer (1946-2024) was more than a scholar; he was a philosopher. He was a man with a Socratic bent, always pricking the conventional view of things. He reveled in “questioning the unquestionable or thinking the unthinkable.” Whether it was national security, morality, or venerable metaphors, Schauer could be counted on to pierce the conformist veil.
Though the man gave the word “prolific” new and invigorated meaning — he wrote more than a dozen books and published hundreds of articles — one work captures his mens rea better than all others. That work, published in 1982, was titled “.” It is at once a work of political philosophy and a tract on freedom of speech and the press. It is also a profound essay on accepted constructs (e.g. our notion of “rights”) and the use and abuse of language (e.g., what counts as “speech,” let alone “free speech”). As Schauer ventured down the conceptual corridors, he moved from principles to explications to applications in his exploration of the meaning of free speech.
Schauer was skeptical of enticing turns of phrases or charming metaphors when used as first principles or normative ideals. He preferred the analytically turgid though precise over the literarily charming though imprecise. That mindset put him at odds with Holmes’ famous line in his dissent in Abrams v. United States (1919): “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Here is how Schauer replied to Holmes:
The survival theory of truth is alluringly uncomplicated; but as the basis for the principle of free speech it suffers from crippling weaknesses. Foremost among these weaknesses is that the argument begs the question. If truth is defined by reference to and in terms of the process, then why is the process of open discussion preferable to any other process, such as random selection for authoritarian fiat? Why is open discussion taken to be the only rational method of inquiry?
With analytically relentless pursuit, Schauer added:
The survival theory, in refusing to acknowledge independent criteria for truth, provides no guidance for preferring one method of decision to any other. The survival theory does not purport to demonstrate why open discussion leads to knowledge, because it rejects any objective test of truth. Moreover, this survival theory does not tell us why open discussion leads to more desirable results of any kind. Thus the theory prompts us to ask why we should prefer rational thinking to any other form of thinking. But then the theory defines rationality as willingness to participate in open discussion and receptiveness to a variety of ideas. The survival theory thereby skirts the entire question by assuming open inquiry as valuable a priori.
And then this by way of yet another body blow:
But we are still left with no criteria for evaluating whether this method of inquiry is better than any other. By taking open inquiry as sufficient ex hypothesi, the survival of consensus theory provides no assistance in answering the question of why free discussion should be preferred.
Some 33 years later, in a co-authored New York University Law Review with Daniel E. Ho, Schauer resumed his attack on Holmes’ marketplace test of truth, this time by way of a rigorous empirical analysis. Their conclusion: “. . . [S]ocial science evidence provides, at best, mixed support for the metaphor’s veracity, and thus for the view that the positions will be accepted and which not. But even if establishing an open marketplace for ideas is unlikely to produce a gain in human knowledge, it may have other consequences . . . [and thereby in certain instances] belying the notion that the cure for bad speech is plainly more speech.”
Lest you think I am being unduly laudatory of Schauer as a free speech critic, I have had my own give-and-take with the good professor. Case in point: my criticisms of his of sexual expression as first expressed in my Harvard Law Review with David Skover, and then expanded in our book titled “.”
In true form, Schauer offered guarded praise for my and Skover’s “” in his Michigan Law Review — but only after he took a few theoretical strikes at our notion of what it means to be a “First Amendment hero.” He was also annoyed by our writing style. I only wish we had the opportunity to debate him and engage in that tumble of the minds that renders the free speech principle so illuminating.
To be sure, there is more to the man and his jurisprudential legacy. Consider, for example, this 2010 video where Schauer asked “Do lawyers think, and if so, how?”:
WATCH: "Do Lawyers Think, and If So, How?" with Professor Frederick Schauer
Fred Schauer was a rara avis, one of the few real free speech philosophers. Make of the man what you will, but I will say this of him: Every generation of free speech thinkers should have an irritating Fred Schauer gadfly — if only to wipe the scum off the minds of conformists who bow to the party line.
Related
Frederick Schauer, “” (Harvard University Press, 2022)
Book review: Mchangama on ‘Fearless Speech’ by Mary Anne Franks
Jacob Mchangama
Jacob Mchangama, “,” The Volokh Conspiracy (Oct. 30)
Mary Anne Franks claims that her new book, , “offers a different and bolder perspective on free speech that takes power, harm, and history seriously.” In this post (adapted from a I provide a brief critique of Franks’ thesis and methodology.
[. . .]
Franks rightly points out that proponents of slavery and white supremacy systematically censored proponents of equality. But she conveniently omits that many of those whose voices were quashed were deeply committed to a universalist and principled conception of free speech.
[. . .]
In her book, Franks jumps from (1927) to lynchings and KKK terror to the Brandenburg decision in 1969. She argues that SCOTUS upheld the conviction of Anita Whitney under the “bad tendency” test but moved to a “reckless speech” standard in order to overturn the conviction of a KKK leader who threatened “revengeance” against Blacks and Jews in (1969).
But along the way, she forgets to mention landmark cases often brought by civil rights activists expanding their right to speak and breathing new life into the First Amendment to the benefit of all Americans. In (1937), the U.S. Supreme Court overturned the Georgia Supreme Court’s upheld conviction of an African American who possessed Communist publications In (1958), the court ruled Alabama violated freedom of speech and assembly by attempting to access membership lists of the NAACP. In (1961), the court ruled that Louisiana could not convict peaceful sit-in protestors under state's “disturbing the peace” laws. (1963) found that the Constitution forbids state officials from forcing a crowd to disperse when legally marching for civil rights at the state house. And (1964) overturned the Alabama Supreme Court’s defamation decision against supporters of Martin Luther King, who placed an ad in the New York Times, limiting the ability of public officials to sue for defamation.
SDO College of Law at Arizona State University holds anniversary symposium on Gitlow v. New York
“”
On November 2, 2024, the Sandra Day O’Connor College of Law at Arizona State University and the Center of Constitutional Design held a one-day symposium to examine influential aspects of the Supreme Court’s 1925 decision in Gitlow v. New York, which produced a landmark dissenting opinion by Justice Oliver Wendell Holmes.
Keynote Address
Robert Post, “,” SSRN (Aug. 6, 2024)
Robert Post
Panel I: Free Speech and Deference to Legislative Judgments
Conference organizers James Weinstein (left) and Thomas Healy (right).
Panelists: , Paul Horwitz,
Panel II: Free Speech as a Suicide Pact
Panelists: , ,
Panel III: The First Amendment and Incorporation
Panelists: , ,
Panel IV: Free Speech, Incitement, and Ideas
Panelists: , ,
New book on the First Amendment and intellectual freedom
Tara Smith, Onkar Ghate, Gregory Salmieri, and Elan Journo, “” (May 28)
The shared framework for all of these essays is the secular, individualist philosophy of Ayn Rand. Tara Smith is professor of philosophy at the University of Texas at Austin, Onkar Ghate is senior fellow at the Ayn Rand Institute, and Gregory Salmieri is senior scholar of philosophy in the Salem Center of the University of Texas at Austin. Situating their analyses within the broader intellectual landscape, these scholars take up the views of such historical figures as John Locke, Thomas Jefferson and John Stuart Mill, while also addressing contemporary clashes over issues ranging from speech on social media, “cancel culture,” and the implications of “religious exemptions” to the crucial difference between speech and action and the very vocabulary in which we discuss these issues, dissecting the exact meanings of “censorship” and “freedom,” among others.
Discussions of the First Amendment often focus on specific freedoms that the text cites, including religion, press, and assembly. But philosopher Tara Smith’s new book usefully reminds us that those particular freedoms — and many more that Smith and the other contributors examine — are united by a crucial principle: intellectual freedom. The book demonstrates that the free mind is indispensable for a free society.
—&Բ;Nadine Strossen
Tara Smith’s masterful celebration of intellectual freedom is both subtle and forceful. She unhesitatingly carves out a place for herself as a warrior for freedom in the battles that Locke, Jefferson and Madison fought years ago and that require continued support today.
In this live recording of “So to Speak” at the First Amendment Lawyers Association meeting, Samir Jain, Andy Phillips, and Benjamin Wittes discuss the legal questions surrounding free speech and artificial intelligence.
is the vice president of policy at the Center for Democracy and Technology. is the managing partner and co-founder at the law firm Meier Watkins Philips and Pusch. is a senior fellow in governance studies at the Brookings Institution and co-founder and editor-in-chief of .
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. (2024) (per curiam))
(“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. (2024) (per curiam).”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas 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 FIREor Mr. Collins.
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