The Inverse Trump Defector

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 articulate their views as advocacy or description, but I am doubtful that political speech works that way. The difference between “this right shouldn’t exist” and “this right doesn’t exist” is nuanced, hence extremely difficult to separate in practice. 

Shiffrin also writes that the disclaimer cannot be “an eye-rolling, inadequate disclaimer that cynical retailers use,” but instead needs to be sincere and publicly known (1004). But to evaluate the sincerity of a government official’s constitutional acknowledgement is an intent-based endeavor that she seems to reject. Indeed, when discussing culpable misrepresentations, she writes that “demonstrations that the government speaker was or should have been aware of decisive evidence showing the speech to be false … would suffice to show that the speech was either a lie or a culpable factual misrepresentation” (1012). Thus, culpable misrepresentations can be identified “without elusive information about mental states” (1024). The point here is that subjective intent is not what decides legality—it is the information the official had access to and whether they ignored it or not. So for lies and culpable misrepresentations, Shiffrin gives an evidence-based standard to avoid having to decide intent. But for the clear statement rule, adjudicating whether a disclaimer is sincere rather than eye-rolling is inherently a question about the speaker’s attitude. This additional task, that adds a psychological element, is akin to Frank’s discussion on the defector, or someone who can mimic symbols of sympathy to gain an advantage in real world prisoner’s dilemmas. A similar task is at play here: a smart government official (so clearly not Trump…) who appears to be sincere and law-abiding may still be able to flaunt reckless speech, while putting social media companies in an increasingly difficult position to ascertain intent and sincerity. While other abstract ideal theories may be able to get away with less defined pragmatic rules, for Shiffrin's normative and pragmatic framework, I find it hard for private social media companies to take on such a controversial policy. 

 

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