Frederick Schauer, a prominent legal philosopher who challenged prevailing views about freedom of speech, restrictions on obscenity and the ethics of racial profiling, died on Sept. 1 at his home in Charlottesville, Va. He was 78.
The cause was end stage renal disease, said his wife, Barbara Spellman.
In more than a dozen books and several hundred articles, Professor Schauer devoted himself to “questioning the unquestionable or thinking the unthinkable,” as he once put it, no matter the subject — whether it be the sanctity of the First Amendment or common interpretations of the Constitution.
“If the answers to questions like these turn out to be consistent with the received wisdom, then understanding has been substituted for blind acceptance and analysis substituted for platitudes,” he told Contemporary Authors, a reference guide, in 2008. “And if the answers turn out to reject the received wisdom, then something has been added to the existing knowledge.”
In numerous articles and in his 1982 book, “Free Speech: A Philosophical Enquiry,” Professor Schauer argued that the broad free speech protections enshrined in the Constitution and strongly upheld by courts sometimes subjugated competing interests like public order, morality and national security. He also examined the ways free speech safeguards in the United States were more expansive than those in other democracies.
“That does not necessarily mean that the rest of the world is right and the United States wrong,” Professor Schauer was quoted as saying in a profile in the Virginia Journal, “but it does suggest that it is a mistake to assume that free speech does not compete with other legitimate concerns, and a mistake to fail to recognize that we protect speech not because it is harmless, but despite the harm it may cause.”
The political philosopher J.N. Gray, in The Times Literary Supplement, praised “Free Speech” for drawing a clear distinction between freedom of speech and the concept of liberty. “It makes a contribution that is quite invaluable in demonstrating that no very powerful case for freedom of speech can be derived from any general principle of liberty,” he wrote.
Professor Schauer, who taught at the University of Virginia School of Law, took scholarly pride in his contrarian views on the First Amendment.
“My work on freedom of expression is less enthusiastic and less celebratory than is common in the U.S.,” he said in a 2010 interview with the Netherlands Journal of Legal Philosophy. “I would like to be remembered as someone who made it legitimate to be skeptical of the celebratory tradition.”
Professor Schauer’s interest in the First Amendment began in the early 1970s, when he was working in Boston as a self-described “smut lawyer,” defending movie theaters and other organizations against obscenity charges. His tenure on that side of the argument didn’t last long.
In 1976, two years after joining the West Virginia University College of Law, Professor Schauer defended the constitutionality of some obscenity restrictions in his first book, “The Law of Obscenity.” During the Reagan administration, he served on Attorney General Edwin Meese’s commission investigating pornography. (His views were reported to be more moderate than those of other members.)
Professor Schauer’s most provocative book is undoubtedly “Profiles, Probabilities, and Stereotypes,” which supports the use of statistics to generalize about members of groups — including by race and ethnicity. After the book’s publication in 2003, Professor Schauer was often featured in the news media as an expert on racial profiling in law enforcement and counterterrorism.
In an interview with Scott Simon of NPR in 2004, Professor Schauer observed that profiling was accepted by society in many instances. For example, car insurance companies set rates by gender, and states enforce age limits on the consumption of alcohol.
“When we get into the issue of terrorism, when we get into the issue of airport profiling, then it becomes a little bit harder,” he said. “It turns out that many of the profiles that would use ethnicity or national origin or race along with other things have some statistical basis.”
The problem, he said, is that race and ethnicity are often overweighted in importance.
“Race, which may be one relevant factor out of 40, crowds out consideration of the other 39,” he continued. “For example, suppose the person in seat 9E is a person of Middle Eastern origin, first name Muhammad, but the person in seat 9D is a member of the same militia group as Timothy McVeigh. The person in Timothy McVeigh’s militia group may be a much greater risk of terrorism.”
The remedy, he concluded, is to include race and ethnicity on a comprehensive list of attributes to consider.
“I’m more comfortable with formal written profiles that are carefully done on the basis of a statistically significant sample,” he told The Chronicle of Higher Education in 2004. “Give airline workers a long list of what you’re looking for — people who have 14 of the following 17 attributes, or something of that variety. By doing it somewhat more transparently and with somewhat better statistical reliability, we would do better.”
Frederick Franklin Schauer was born on Jan. 15, 1946, in Newark. His father, John Schauer, worked in enforcement in the credit industry. His mother, Clara (Balayti), managed the household.
Professor Schauer graduated from Dartmouth College in 1967 and received an M.B.A. there the next year and a law degree from Harvard in 1972.
He also taught law at the College of William & Mary, the University of Michigan and the John F. Kennedy School of Government at Harvard University.
His marriages to Margery Clare Stone in 1968 and to Virginia Jo Wise in 1985 ended in divorce. He married Barbara Spellman, a professor of law and psychology at the University of Virginia, in 2010. She is his only immediate survivor.
Professor Schauer’s prodigious scholarly output was a subject of some fascination among his peers. He attributed his production to one word: energy.
His wife recalled many days when he awoke before her. As she slept, he exercised, read the newspaper, completed The New York Times’s crossword puzzle and went grocery shopping.
And sometimes, she said, he’d add, “Oh, I wrote an article.”
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