What do you mean what do you mean?

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 preconditions for achieving the First Amendment's core purposes” (1010). Which makes sense. However, who determines what counts as a “culpable misrepresentation”? Who decides when criticism of the press becomes unconstitutional data, rather than permissible opinion” Doesn’t Shiffrin's framework, though very principled, require someone to interpret the First Amendment? Just like Waldron emphasizes through his criticism of Dworkin, interpretation is non-neutral. Different judges might approach different legal material in good faith, resulting in wildly different readings. 

This leads to a deeper concern about precedent. Shiffrin remains largely unbothered by the fact that her constitutional violations are “nonjusticiable” (993). However, she refers to social media companies to fill the enforcement gap. But centuries of First Amendment legislation has been built on the idea that government speech, no matter how distasteful, is unrestrained by the amendment. This precedent has been solidified through years of adjudication. Uprooting it requires justifications that the legal background material has been insufficient from the start – which is nearly impossible.

Shiffron does acknowledge the difficulty: “the perimeter of justiciability does not limit the reach of the Constitution, nor should it limit our analysis of the Constitution” (997). Without some kind of a disciplining framework, this framework seems to me, as though it backslides into the rule of man, rather than the rule of law. 

 

Comments

  1. NandiniApril 30, 2026 at 12:51 AM

    I think the problem of interpretation is important to bring up anytime constitutional law is being discussed. It’s true, if Shiffrin claims that certain types of government speech may violate the Free Speech Clause, she must qualify that there is a specific interpretation that embodies that view.


    Importantly, I don’t think this matter of interpretation is the same as deciding arbitrary decisions about the constitution that would make us doubt the validity of legislation. This is because, the decisive structure that would help judiciaries decide if government speech was violating the constitution is the decisive structure necessary to make a majority of the substantive protections the constitutions declare about our freedoms. I think it would be impractical to argue that the issue of interpretation makes Shiffrin’s entire argument slide into the rule of man. It is clear that Shiffrin’s argument is made to point out the magnitude of importance associated with infringing these core tenets of the constitution, in virtue and pursuit of equality and justice. Approaching the problem of interpretation from this perspective is important because it narrows the field from which they can interpret from. The phrase “culpable misrepresentation” is misleading because it makes it seem like judges would be deciding about such arbitrary ideas that they could misrepresent opinions or people. I don’t think there needs to be a disciplining framework because to understand such an argument is to understand the layers of reasoning beneath that would motivate judiciaries to act in such ways.

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