Holocaust Denial, the First Amendment, & "Over-Protecting" Speech

Anyone simultaneously committed to the First Amendment while passionately devoted to other moral values will inevitably confront a conflict between the former and the latter. This predictable conflict is the subject of a new off-Broadway play entitled "Denial," which explores the relationship between the right of free of speech and Holocaust denial. I have not yet seen "Denial," but according to the NY Times, "Peter Sagal's 'Denial' at the Metropolitan Playhouse, is an engrossing legal drama that examines the moral and ethical dilemmas inherent in the First Amendment." The battle over the First Amendment, like similar battles involving constitutional morality, focuses on the fear--sometimes justified and sometimes not--of slippery slopes. Where does one draw the line between protected and unprotected speech? I suspect few would argue that Holocaust denial contributes to the deliberative conversation of a free people. Nonetheless, many believe that such a precious value as freedom of speech needs to be over-protected, so to speak, by constitutionally guarding not only authentic speech but inauthentic speech as well. (Indeed, the idea of over-protecting speech rejects outright any distinction between authentic and inauthentic speech.) The bet is that by constitutionally protecting speech such as Holocaust denial, the speech of other unpopular majorities is more likely to be protected. Of course, this fear of slippery slopes discounts the harm Holocaust denial may cause. First, it is a supreme affront to Holocaust survivors--those who have endured the Nazis' brutal attempt to eradicate European Jewry--to now tell these individuals that their treatment in the death camps never happened. It was, perhaps, a delusion--a collective delusion. This denigration of a person's experience, especially inhuman treatment at the hands of moral monsters, is more than an insult or offense; rather it is an affront to the very manner in which the person understands him or herself. Second, and equally, if not more, important, it successfully treats Holocaust denial as just another controversy over which reasonable people can agree to disagree. If the Times is right, "Denial" will contribute to our more fully appreciating the vexing dilemmas created by an expansive conception of the right to free speech.

The actors featured in the above photograph are Martin Novemsky and Suzanne Toren. The photographer is Michelle DeBlasi.

Scholarship I've Been Writing

I am, as all the cool kids say, happy to report that my latest is up on SSRN. It's called Writing, Cognition, and the Nature of the Judicial Function, and it'll be coming to a library shelf near you (more specifically, the one that holds the Georgetown Law Journal) in about a year. But you, privileged denizen of the Internet Age, can access a working copy right now simply by clicking on this link.

The abstract goes a little something like this:

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive – that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of generating an opinion uncontestably outweigh the benefits – such as in the case of evidentiary rulings made during the course of trial. Still, the understanding remains that writing will result in some positive contribution to the process.

This article calls that assumption into question. Drawing upon an emergent body of psychological research into the effects of both oral and written verbalization on decisionmaking effectiveness, it argues that certain types of decisions are likely to be worse if made via a process that incorporates writing. Decisions involving complex, context-intensive judgments that are best resolved via the weighing of largely inarticulable considerations are susceptible to a phenomenon called verbal overshadowing. In these situations attempts to justify a decision can lead the decisionmaker to focus on more readily verbalizable features of the problem to the exclusion of those inputs that are more important to proper analysis.

The article also investigates the significance of writing to the fulfillment of the other two (aside from accuracy-enhancement) primary functions of judicial opinions, namely the creation and memorialization of precedent and the enhancement of legitimacy, and to consider the differing ways in which these functions are implicated at the trial and appellate levels. The goal is not so much to generate definitive answers as to better identify the costs and benefits provided by written opinions so as to more completely ground ongoing debates concerning when opinions should be issued, what form they should take, and who should author them.