PPESexton2026

While government speech may not be nonjusticiable, trusting the private actors like Facebook and friends with "keeping under-enforced Constitutional norms relevant" may be a step in the wrong direction (1014). When discussing private enforcement, more attention should be placed on individual citizens. The business model of profitable information disseminators like Facebook or Fox is almost certainly out of line with the social culture of free speech. Media companies earn more from longer user retention. To remain competitive, they must produce highly saturated, dopaminergic, and polarized content. By the 2010s, the use of "echo chamber" exploded to describe this model. Media companies are incentivized to impassion and radicalize their users. In no way is this in line with the tolerant marketplace of ideas and open dialogue championed by the social culture of free speech. Addictive algorithms are not a form of intellectual humility. Trusting businesses brings another...

Shifrin develops a rather thorough account of the constitutional obligations of government officials to be truthful and to uphold the protections of the press. She very categorically writes that “lies and culpable misrepresentations by government officials about public affairs violate the Free Speech Clause, whether or not those misrepresentations are believed or cause harm to particular individuals or groups” (993). While abstaining from taking an opinion on this account, I would like to pose the question of those potential "culpable misrepresentations" currently being propounded by the government, particularly the White House's recent dissemination of AI-generated propaganda media, or “AI Slop” in colloquial terms.  Shifrin defines culpable misrepresentations as “false statements on a topic about which the speaker has a special responsibility to speak accurately, but culpably derelicts his duty” (1102). Just in the past months, official government accounts have posted i...

Shiffrin in "Unfit to Print" argues that government officials, namely Donald Trump, violate the First Amendment by misrepresenting matters of public concern, while private citizens, who must be free to attack even the Constitution, do not. Private platforms are meant to reach unconstitutional but nonjusticiable government speech. I found the point Shiffrin made convincing, but I found myself questioning how this extended to quasi-governmental entities. On April 18th the official Palantir twitter account published a set of 22 theses from Alex Karp's  The Technological Republic . Karp asserts that Silicon Valley engineers have an affirmative obligation to defend the nation; that national service should be universal; that the postwar "neutering" of Germany and Japan must be reversed; and that ranking cultures as flourishing or dysfunctional must be re-legitimized as a matter of public reason. Some of these points directly violate the constraints Shiffrin believes a...

Both Shiffren and Frank argue that trust in others should be rational. However, they disagree on what makes it so. For Frank, reliable signals allow individuals to distinguish between genuine cooperators and calculating mimics to solve commitment problems and reach desirable, rational outcomes. However, Frank’s account holds for the rational development of an "undetectable defector” who is able to perfectly feign signals of sincere emotional bonds to manipulate cooperators and gain the external benefits of trust without the cost of true commitment. By shifting the focus from detection to duty, Shriffren’s discussion of sincerity addresses this issue. She moves beyond external goods, showing that faking sincerity (lying), even when convincing, is ultimately irrational due to the lost internal goods and systemic stability.  Shiffren argues that when a person fakes sincerity, they present a “dummy” in their place, isolating the speaker from the listener (1009). By misrepresenting the...

Shiffrin argues that when officials criticize constitutional rights, they must be clear on “what the extant protection is and that they must honor it in the contemporary circumstances” (1004). The “clear statement rule” means that officials can attack the First Amendment (or any other statute), but need to explicitly acknowledge that it’s still the law while doing it. For Shiffrin, the rule is meant to draw a line between legitimate criticism and unconstitutional lies.  However, like many of the other blog posts I have written, I am concerned that this distinction is more difficult in practice than it initially seems. For example, if a senator says abortion has no constitutional protection, are they describing the law as they believe it should be, or as they believe it is? Or if a government official says affirmative action is “illegal” before a court has ruled, on which side of Shiffrin's coin does that fall on? The clear statement rule assumes officials will cleanly frame and ar...

Seana Shiffrin’s “Unfit to Print” presents a current argument: that specific government speech, primarily lies, misinterpretations, and attacks on the legitimacy of dissent, itself violates the First Amendment. In the wake of the Trump presidency, Shiffrin maintains that “government speech that attacks the legitimacy of criticism violate[s] the First Amendment's Free Speech Clause, irrespective of whether such attacks harm any particular individual or group” (993). While the claim is bold (and very convincing (I’m mostly convinced!)), I believe that it carries within it a problem that is never truly resolved: the problem of interpretation.  Shiffrin argues that when a president calls the press “the enemy of the American people,” or intentionally misinterprets data from the pandemic, he hasn’t just behaved poorly – he has acted unconstitutionally. Shiffrin argues that “lies and culpable misrepresentations by government officials about public affairs obstruct the operation of the pre...

First Amendment doctrine has historically been permissive about speech content, generally refusing to allow government restriction based on what speech says. The doctrine could afford to be indifferent to the corrosive effects of bad speech because the surrounding infrastructure managed the consequences of that indifference. Prior natural limitations on mass distribution, as Shiffrin notes, "may have implicitly influenced our articulation of our free speech legal principles" (992). Technology didn't create new problems but exposed that the framework was contingently stable rather than genuinely principled. The standard remedy for bad speech is more speech—to counter the lie with the truth. But this remedy operates at the individual level by correcting specific false beliefs held by specific people. The problem Shiffrin identifies operates at a different level entirely. Government lies don't primarily harm specific people who believe specific false things. They damage...

Shiffrin argues that some government speech violates the First Amendment, including official lies, culpable misrepresentations, and attacks on the legitimacy of dissent . Her framework requires some distinction between officials speaking “qua official” and officials speaking as private citizens. This distinction is important throughout her argument. Her argument requires officials to make clear “either (1) that they do not speak in their capacity as a governmental official; or (2) if they do speak in their capacity as a government official, their speech must make clear what the extant protection is” (1004). This rule needs a stable line between official and personal speech. I would like to raise a question about this line/distinction between official and personal speech. Consider a future president who reads Shiffrin’s article and opens two accounts on a social media platform. The official account stays meticulously constitutional. The personal account posts that the press is “the enem...

Cheryl Harris’ Whiteness as Property is a critical argument on racial privilege as a function of property rights. Buried in her final sections on affirmative action, however, is an argument about justice that shifts the lens from corrective to distributive: from asking who sinned to what people are genuinely owed. Harris says that corrective justice is “the claim to compensation for discrete and 'finished' harm done to minority group members or their ancestors”, while distributive justice is “the claim an individual or group has to the positions or advantages or benefits they would have been awarded under fair conditions” (1781). Under the corrective justice framework, affirmative action seems like burden shifting onto the shoulders of the innocent. Under the distributive justice framework, however, affirmative action seeks to determine the share of society’s goods that black Americans would have secured, if racial subordination was not prevalent.  I believe this argument work...

In Whiteness As Property Cheryl Harris nicely spells out Marx’s theory of ideology until her discussion of affirmative action. Harris begins by detailing the history of the United States and its relationship with whiteness as property. Her emphasis is that this construct, and it is a construct, has been supported and maintained economically, socially, indirectly, intentionally and with endurance.  To me, she seems right about a number of things: From the very origin of the regime of property, the United States have instated operating systems of oppression against people of color, namely, Blacks and Native Americans (1714). They did this through exploitation of labor, seizing and appropriating the land and labor. As Marx writes, the division of labor is how man becomes exploited for his own work. They supported such exploitation through what Harris deems a “racialized conception” of property implemented by force and the law (1713). Importantly, Harris defines the United State’s ori...

Cheryl Harris’s “Whiteness as Property” argues that American law has recognized and protected a property interest in whiteness, and that this interest survived Brown in modernized form. She believes Brown limits the harm to legalized racial separation, as she puts it, “selecting desegregation as the sole remedy was the consequence of defining the injury solely as racial separation” (1755). The settled expectations of white privilege were then manifested as a “neutral baseline” (Harris 1753). This account I think sits interestingly alongside Shelby’s argument in Dark Ghettos that residential integration is not a requirement of justice (Shelby 67). While Harris is not making an explicit argument against integration, her critique of Brown suggests that desegregation alone leaves whiteness as property intact. Shelby’s egalitarian pluralism rests on black autonomy and the worry that integrationist remedies “show a lack of respect for those they aim to assist” (Shelby 75). Shelby and Harr...

When whiteness was "elevated from a passive attribute to an object of law and a resource deployable at the social, political, and institutional level to maintain control" (1734), white workers gained an asset that substituted for class solidarity. If whiteness is legally protected property with "real" value, white workers are not simply deceived but are responding "rationally" to a structure that rewards racial identification—and in doing so, commit themselves to the ideology of racism. As such, the system has structured white workers' interests in a way that prevent policies that could actually improve their material conditions. Whiteness gave white workers just enough to stop them from demanding more. By replacing class solidarity with racial identification, it ensured the coalition that could have challenged exploitation never formed. Whiteness was designed to keep you in your place while convincing you it was worth defending. It only works on those...

In Cheryl Harris's Whiteness as Property, she argues for an understanding of race as determinant of property. She uses cases like Plessy v. Ferguson to evidence this claim, demonstrating how the United States has established a legal precedent for equating whiteness with property. She then argues that affirmative action is needed to order to remedy these injustices - she states that it could "brake the distorting link between white identity and property." However, given how broad Harris's conception of affirmative action is, I wonder what limitations exist to how different types of "affirmative action" could actually break this link.  When most people bring up affirmative action at the dinner table, the debate includes a mention of SFFA v. Harvard (maybe thats just my family but I digress). In this case, the Supreme Court ruled in favor of SFFA, claiming that affirmative action in higher education violated the Equal Protection Clause of the Fourteenth Amendme...

In Whiteness as Property , Cheryl Harris states that the “riddle of identity” cannot be solved through a “search for essences” but must instead be understood in terms of “purposes and effects, consequences and functions” (1763). Here, she frames identity not as an objective fact to be discovered, but rather something actively produced through social and political processes. Harris questions “who is defining [identity], how the definition is constructed, and why the definition is being propounded” (1763). She then presents the Mashpee decision to show the consequences of ignoring these questions. The court concluded that the Mashpee were “incapable of legal self-definition,” using a rigid definition of tribal identity(1765). While the court sees the tribes intermingling with other groups as evidence that they had “lost their tribal identity” (1764), Harris sees the intermingling as “coerced adaptation” (1765). She claims that by treating the tribe’s intermingling as “voluntary surrender...

Harris rejects the notion that merit is an objective fact based on neutral criteria, instead asserting it is a constructed idea (Harris, 1771). She argues that traditional merit criteria such as GPAs and standardized test scores are socially constructed (and reconstructed) to maintain white privilege and protect the settled expectations of white people. Notably, these metrics were not prominently used until the late 1940s/early 1950s, correlating with the NAACP’s pre-Brown equalization strategy forcing institutions to admit Black students, highlighting their function to maintain hierarchy (Harris, 1771, fn 277).  In place of these metrics, Harris advocates for measuring merit through distributive justice. Drawing on Ronald Fiscus’s work, she operates from the premise that abilities are distributed relatively equally among all races at birth. If racial groups have equal potential, a fair world absent of racial oppression would distribute societal benefits (such as spots in a medical...

Does having a constitutioin actually conflict with democracy? Scalia believes that the answer is no—the constitution protects democracy rather than opposes it. On page 40, he argues that "a society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot.". So when a society writes a constitution, it is making a deliberate, democratic choice to place commitments beyond the reach of temporary majorities.  However, Scalia's framework binds the living population's to the choices of a founding generation that no longer exists and cannot be held accountable. Scalia himself acknowledges that the "whole purpose is to prevent change — to embed certain rights in such a manner that future genrations cannot readily take them away." (40).  If the constitution's purpose is to resist change, then does it not permanently override democracy?  Take ...

In A Matter of Interpretation , Scalia is writing about statutory and constitutional interpretation, but spends the first pages reminiscing about first year law school. He walks us through Hadley v. Baxendale , describes Professor Kingsfield’s hypotheticals , and tells us that learning to be a common-law judge is “intoxicating,” that the image of the great judge “remains with the former law students when he himself becomes a judge.” (9). But, why begin here?  The answer, I think, is that an important part of Scalia’s argument is about formation. Lawyers are trained, he says, to admire judges who perform “broken-field running through earlier cases” to reach “good law” (9). They learn to distinguish, to maneuver, to ask what the best rule would be and then find a way there. Scalia thinks this mindset is fine for common law, where he is content to leave it. But he thinks it is disastrous when lawyers trained this way become statutory interpreters or constitutional judges, which, in mo...

In his arguments against the use of "legislative history" in common law statutory decisions, Antonin Scalia is really arguing against evolutionary theories of constitutional interpretation and therefore normative accounts of constitutional rights. His formalist perspective requires that judges "have no authority to pursue broader purposes or write those new laws" (23), a constraint he treats as a democratic obligation. Scalia is worried about a normative and nondemocratic approach to judicial interpretation of statutory claims, "a government of laws, not of men" (17). In my interpretation, Scalia wants us to value and take the constitution as the purpose it was made for. Scalia rejects conceptions that use other philosophies to try to determine a "common good", "evolutionists divide into as many camps as there are individual views of the good, the true, the beautiful…evolutionism is simply not a practicable constitutional philosophy" (4...

Scalia, in A Matter of Interpretation, makes a case for textualism. When judges interpret existing statutes based on legislative intent rather than statutory text, they will inevitably invent text rather than finding intent. Scalia maintains that a judge’s “best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean”, when told to decide “not on the basis of what the legislature said, but on the basis of what it meant” (17). And to this, he says, textualism is the answer. But does it really solve this problem?  Scalia says that “the text is the law, and it is the text that must be observed” (22). But is it possible to sustain a standard of pure textualism? Scalia does reject strict constructionism, asserting that text “should be construed reasonably, to contain all that it fairly means” (23). These qualities, reasonabl...

Scalia argues that judges looking for “legislative intent” are able to insert their own preference for the law. By deciding what a legislature should have meant, the answer to the question inevitably collapses into whatever the judge thinks is right. However, in his defense of textualists, Scalia seems to also draw on the same problem. He quotes Joel Prentiss Bishop, who wrote that the goal is “‘the meaning which the subject is authorized to understand the legislature intended,’” an “objectified intent” deduced by a reasonable person reading the text (17). The problem is that a reasonable reader is not neutral – the judge can still decide which context is relevant.  Scalia’s main objection to legislative intent is that it lets judges hide their preferences as legislative purpose. He writes “when you are told to decide…on the basis of what [the legislature] meant…that will surely bring you to the conclusion that the law means what you think it ought to mean” (18). He proposes the re...

Sen prefaces his account of Freedom as Development by putting forth 5 distinct types of freedom; (1) political freedoms, (2) economic facilities, (3) social opportunities, (4) transparency guarantees, and (5) protective security. To him, these freedoms are mutually reinforcing, meaning that one can ostensibly lead to/bolster the other, which makes freedom, as a whole, self-perpetuating. He discusses the capacity of each of the 5 aforementioned classifications of freedoms to act as both constitutive ends, which are freedoms as goals in themselves, and instrumental means, which are freedoms that help achieve other goals.  Since freedoms are mutually reinforcing, as Sen argues, then democratic rights (chiefly, voting) can be of great use in the expansion and protection of other freedoms. By voting, for example, a marginalized group could pass a policy that accords them equal economic footing, or one that guarantees a more egalitarian distribution of social opportunity.  This noti...

Rawls argues that if individuals have the same basket of primary goods, resulting inequality is not unjust because individuals must take responsibility for their own preferences. For Rawls, justice should be measured by the resources people have ( means) rather than the happiness or satisfaction they achieve (ends). Sen counters that this ignores the fundamental diversity of being human. Even if two people have the exact same resources, their divergent physical or social circumstances mean they will achieve very different levels of actual freedom. A person with a parasitic stomach ailment requiring a specific diet is not equivalent to a person choosing to eat only organic food. A bike is a resource, but it's useless to someone who cannot walk. For Sen, resources are meaningless if you lack the capability to convert them into a valued life.  In practice though, resources are often a zero-sum game. Consider a public school budget. Let's say the average spending for students is ar...

In Amartya Sen’s Freedom as Development he proposes the view that current economic models that use GDP per capita or average income as a metric of development are severely misunderstanding the idea of development. He instead proposes that we use freedom as a metric of development in order to actually understand whether the individual has access to means of development (4). He argues that without freedom, one cannot evaluate what to do or how to exercise their freedom and further, one cannot achieve development without free agency.  Sen’s arguments sound very similar to a fondly relevant term coined by Marx, the species being. Marx defines a species-being as one who can exercise his will at all moments, choosing to hunt in the day, learn in the afternoon and fish in the evening. Marx argues that any sort of civil society with a market economy makes it so that man cannot do what he wishes for he is enslaved by his division of labour.  Sen seems to argue that it is nonsensical to...