Speech, Death, and Double Effect
Seana Valentine Shiffrin
In this Article, Professor Seana Shiffrin identifies and explores a tension between the Supreme Court’s recognition of First Amendment protection for incendiary speech and the Court’s argument for rejecting the claim to a right to assisted suicide. Constitutionally, speakers may not be held liable for the illegal actions they inspire in audience members, unless the very high Brandenburg standard is met. By contrast, it is constitutional to prevent those who would seek assisted suicide from doing so, on the ground that a culture in which some elect suicide will encourage a higher incidence of involuntary deaths. Here, those who would voluntarily seek to exercise an important liberty interest are restricted in light of the projected illegal action of others. Shiffrin argues that this same tension is replicated in the contrast between the Court’s approach to incendiary speech and its approach to the regulation of secondary effects. Shiffrin contends that this tension holds special interest because the asymmetry it represents privileges intended harm over merely foreseen or foreseeable harm, inverting the traditional priority associated with the doctrine of double effect. Shiffrin argues that, surprisingly, this inversion may be defensible in legal contexts, even if it is not sustainable in interpersonal moral theory. In fact, the inversion can result from the use of double-effect-style reasoning at the level of rule formation. Although this inversion may seem counterintuitive, the justifications for the legal protections for freedom of speech and for self-determination may provide a plausible explanation. We may understand the doctrinal difference by examining the structure of the values at which each regulation is aimed. The value of freedom of speech can only be realized if speakers are insulated from responsibility for the persuasive impact of their speech; by contrast, the liberty interest valued in the context of assisted suicide does not encompass the side effects of that action. This justification may also have implications for the future interpretation of the secondary effects doctrine.