I’m very pleased to begin our reading group on Corey Brettschneider’s new book: When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality. In this post I’ll offer a brief summary of the introduction and chapter 1, and I’ll raise some issues for discussion. I hope that we’ll have a lively discussion in the comments section, involving both the other contributors (see here for a list of the other contributors and the full schedule), and also others who are following along.
One caveat: I’m using an e-book version of the text, which means I lack access to the hard copy page numbers, so I can’t provide direct citations and any quotes will lack page number references.
Corey begins with a helpful proposal: we might learn more about some of our deepest political commitments and ideas if we start our philosophical reflections by identifying dystopias rather than utopias. The two dystopias that shape the direction of Corey’s project are the Invasive State and the Hateful Society. The Invasive State is one where agents of the state are constantly monitoring our conversations and behavior—even in apparently nonpublic places like the home or our places of worship—always looking to clampdown, with coercive force if needed, on racist, sexist, or other forms of hate speech. This dystopia is one where the equal moral status of citizens is vigorously protected, but at the price of some of our most cherished liberties. But the pendulum can swing too far in the other direction. In the Hateful Society, racism and sexism are rampant, despite the fact that, formally, each person’s equal rights are protected. In this dystopia, the state makes no effort to halt the growth of hateful and inegalitarian ideologies, beyond the formal protection of standard rights and liberties, and so these ideologies grow and undermine equality and social justice.
How can liberal democratic theory be designed to avoid these two dystopias? Some, whom Corey calls the prohibitionists, argue the state must do more than merely protect the basic rights and liberties of citizens: the state can and should use its coercive power to ban hate speech when necessary. This is the approach followed by many contemporary democratic societies, with the United States being a notable exception. Others, whom Corey calls neutralists, insist the state must never interfere with political speech and must remain resolutely neutral toward different moral and political viewpoints: all it can permissibly do is protect our liberal rights and freedoms to the best of its ability.
But both the prohibitionists and the neutralists, Corey suggests, lack the theoretical resources necessary to assure us that their views can successfully deal with the problem of hate speech. Corey argues that we ought to reject both of these approaches in favour of a third approach: one that does more to combat hateful ideologies than the neutralists would allow, but not as much as the prohibitionists would like. Corey agrees with the neutralists that the state must not use its coercive power to prohibit speech: even people with the most hateful ideological views have the right to express those views. Corey thus endorses what’s sometimes called the ‘viewpoint neutrality’ interpretation to the right to free speech, an interpretation that’s embodied in American legal doctrine. But that doesn’t mean the state is toothless to prevent the spread of radically inegalitarian and hateful ideas. The state need not remain silent in the face of such ideas. The state can and should speak out against such ideologies, indeed Corey argues that there’s an obligation for the state to articulate the reasons that justify citizens’ basic rights and liberties, and these reasons will be grounded in the fundamental political values of a democratic society, in particular, the idea of citizens as free and equal members of a political community. The state can speak in a number of ways: members of the executive and judicial branches can explain the underlying rationales for laws, and the state can promote political values like equality via public education, public monuments, national holidays, and other expressive acts. The state can also promote the values of equality and liberal toleration via tax subsidies and other incentive schemes. Corey’s approach to dealing with the potential problem of hate speech is thus democratic persuasion: even if the state must maintain viewpoint neutrality when exercising its coercive power, it can and should speak out in favor of equality and against intolerance in its expressive capacities. And this view about the importance of democratic persuasion is grounded in Corey’s broader theory of democracy—what he calls value democracy—whereby democracy, although neutral between competing reasonable conceptions of the good and conceptions of justice, is nevertheless grounded in substantive moral ideas, ideas that ought to be articulated and defended by liberal democratic citizens and public officials.
Corey begins the detailed defense of this view in chapter 1, where his aim is to articulate a principle of public relevance and explain its role in the broader project of democratic persuasion. The chapter begins by arguing against the spatial metaphor of the public/private distinction in liberal democratic society. On this view, some areas of our life are public and can rightly be subject to political rules and requirements, but other areas—for instance our homes or our houses of worship—are private and thus not subject to the intrusive regulations of political justice. But, as Corey rightly points out, this view is highly misleading. Even in the privacy of the home, the coercive power of the state can intrude to protect children from abuse, or to protect a spouse from rape. Likewise, freedom of religion does not entitle a group to be free from the coercive interference of the state when it tries to sacrifice a virgin at the altar. There are no “spaces” in life where the rules of political justice don’t apply. Corey thus aims to replace the spatial metaphor with a principle of publicly justifiable privacy, which is defined by appeal to a principle of public relevance: ‘according to this principle, private beliefs, communications, and actions are not immune to public evaluation. Rather, the family and civil society are potentially subject to public evaluation and criticism when they oppose the values of free and equal citizenship in a manner that comes to light publicly without violating the rights of these groups’.
Obviously, an accurate understanding of this principle depends on what it means to oppose the values of free and equal citizenship, and so Corey spends some time defining these core democratic values. On his view, the values of free and equal citizenship are broadly Rawlsian, in the sense that they are political rather than metaphysical, and they are compatible with a wide range of reasonable comprehensive doctrines. Citizens are equal in the sense that the equal political status and rights of all citizens must be equally respected. Citizens are free ‘in the sense of being able to possess and exercise the rights of citizenship’. Ideologies that deny either one of these commitments are thus potentially liable to public condemnation: these are the sort of ideologies democrats should try and eliminate via the mechanisms of democratic persuasion. These ideologies, according to Corey, include obviously racist doctrines like those espoused by the KKK, sexist doctrines that deny that women are equal citizens with men, and also doctrines that deny equal rights to individuals on account of their sexual orientation.
Why should democratic citizens endorse the political ideas of freedom and equality: why is it so important to try and reduce or eliminate these hateful ideologies from a liberal democratic society? Corey offers a number of arguments, which I will only list here, without going into specific detail: (1) democratic congruence or legitimacy, (2) stability, (3) the argument from interconnection, and (4) public trust. Together these four arguments make a powerful case for the importance of ensuring that citizens embrace the fundamental values of a democratic society. Ideally, citizens will ‘adopt the democratic values and seek to persuade others to do the same’. But this won’t always occur, and thus we need democratic persuasion: we need the state to use its expressive capacities to help promote the ideas of freedom and equality, and to combat intolerant doctrines. As mentioned earlier, the state can do this in a number of ways: members of the executive and judicial branches can explain the underlying rationales for laws, and the state can promote political values like equality via public education, public monuments, national holidays, and other expressive acts. The state can also promote the values of equality and liberal toleration via tax subsidies and other incentive schemes. Democratic persuasion thus doesn’t rest with just one government institution, nor is it limited to merely symbolic acts. But while the state must condemn racist and other intolerant doctrines, Corey shares the neutralists’ view that it must not use its coercive power to prohibit anyone’s expression or rights of association. In this way the liberal democratic state can avoid the dystopia of the Invasive State while also working hard to ensure we do not allow a Hateful Society to develop either.
Comments and Questions
Obviously there’s a lot to discuss here, partly because the material I’ve summarized doesn’t just represent one section of Corey’s book, but rather includes an overview of the book’s entire argument. I can’t possibly cover everything that comes up in the introduction and chapter 1 (nor does the summary above cover everything in those chapters). Instead I’m going to flag three areas that will hopefully be useful in generating further discussion.
First, let’s start with a point—and a question—about the general structure of Corey’s view. To avoid both dystopias, Corey wants the state to be more active than the neutralist recommends: he wants the state to actively promote the fundamental values of freedom and equality, and to actively criticize and condemn ideologies that stand in conflict with those values. But he shares one part of the neutralist’s view: the state should never use its coercive power to prohibit or silence those with hateful doctrines. This helps Corey to defuse worries that his theory might tilt too far in the direction of the Invasive State. One obvious question therefore is this: what’s so special about coercion? Why draw a bright line at this particular point? At this stage the bright line looks a little puzzling. Is it justified because there’s a special presumption against the state’s use of coercion that doesn’t apply to the state’s more expressive functions, and so coercive acts—like prohibiting free speech—have to be publicly justified in a way non-coercive expressive acts do not? But this doesn’t look like a plausible rationale for the distinction Corey makes: both coercive and non-coercive attempts to restrict the spread of hateful doctrines could potentially be justified by appeal to purely political values like freedom and equality. Maybe the bright line is justified instead by appeal to the fundamental individual interests that ground the rights of free speech and association: no similarly fundamental interests are threatened when the state engages in non-coercive expression. But this also looks like an unpromising way to justify the distinction, particularly for a proponent of value democracy, because it’s just not clear that anything of real value is threatened if we define the limits of the rights of free speech and free association by requiring the exercise of the rights to be consistent with the fundamental political values that justify those rights in the first place (the right to free speech is already limited, after all, to exercises of speech that are not libelous and do not transgress the freedom and equality of other citizens in other ways). This distinction between coercive and non-coercive state action goes right to the core of Corey’s proposed middle way between the prohibitionists and the neutralists.
Second, and relatedly, like any theory that attempts to steer a middle course between two alternatives, Corey’s view is going to be vulnerable to objections from both flanks. On the one hand, some critics are liable to wonder if Corey’s view is too strong; that it allows the state to be too intolerant, invasive, or partisan. Corey’s account of what is and is not consistent with the values of freedom and equality is very thick, for example, he presents the denial of gay rights as something that is not compatible with the fundamental values of freedom and equality. His view would thus apparently permit, indeed maybe require, the state to actively criticize many of the major organized religions that currently argue against gay marriage. His view might even permit the state to financially penalize religious groups who take this political stance via tax incentives favouring only religious organizations who endorse gay marriage as a right. Although I am strongly in favour of extending the right to marry to all persons regardless of sexual orientation, critics might plausibly worry that Corey’s theory is so substantive that it will effectively foreclose many avenues of democratic debate by placing state institutions very clearly on one side of each debate.
There’s a broader structural point here. Corey’s particular account of democratic persuasion seems to me to depend heavily on a particular substantive conception of liberal justice. This conception is broadly political liberal, without being overly egalitarian. The values of freedom and equality are defined as being political and not metaphysical, they entail a familiar list of basic rights and liberties, and include currently controversial rights over matters of sexual orientation, but do not extend to entail any strongly egalitarian principles of distributive justice. So, on Corey’s view, the state must speak out in favour of gay rights and condemn groups that oppose such rights, but the state must stay silent on the issue of income inequality and fair equality of opportunity. The Catholic Church’s position on various matters to do with sex will be subject to different forms of democratic persuasion, but a libertarian group’s agenda to eliminate all but the most basic forms of welfare provision is immune from democratic persuasion. The latter disagreement is apparently reasonable, on Corey’s view, but the former disagreement is not. I’m not necessarily in disagreement with Corey here about which positions are reasonable interpretations of the political values and which are not; I just want to call attention to how much Corey’s interpretation of state expression depends on a particular conception of justice.
But we could detach the structure of Corey’s value theory of democracy and his account of democratic persuasion from his more specific very-liberal-but-not-very-egalitarian conception of justice. That is, someone might be persuaded of his general argument that democratic rights are grounded in core values that the state ought to articulate and defend, and also that the state should not use coercive measure when engaging in democratic persuasion, but simply hold a different view of what those core values are, or hold a different interpretation of what the core values entail. Someone might believe that the value of equality entails much a more demanding view of distributive justice, one that makes libertarian conceptions unreasonable and subject to democratic persuasion, for example. Or one might hold a view where the democratic values include not only freedom and equality, but also honour and dignity, and these latter values entail a host of rights unmentioned in Corey’s account. My broader point is this. Insofar as Corey’s theory of state speech seems reasonable and acceptable to readers, insofar as it doesn’t seem too intolerant or partisan, this is a function of his underlying (and in this book undefended) conception of liberal justice, and not a property that attaches to value democracy and democratic persuasion per se. Someone with a different conception of justice might share a structurally identical view of democracy and state expression, and reach conclusions that seem far more troubling than those Corey reaches.
But Corey’s view might also be vulnerable to objections from the other direction, that is, from critics who worry that his account isn’t robust enough to deal with some of the problems posed by groups that promote hateful or radically inegalitarian doctrines. Here’s one somewhat imaginary example—borrowed from the chapter in my own book that deals with unreasonable citizens—that might pose some problems for Corey’s account:
“Imagine that there is a religious minority that prefers to educate its children privately. The community in question is happy to pay for the costs of private schooling: they see this as an important function of the community, and believe their community has distinctive values or virtues that should be inculcated from an early age right through to adulthood via the educational system. The private schools set up by the community do, by certain standards, an excellent job of educating the children who attend. The children perform very well on state-mandated examinations, and are above the national average in both university and job placement. There can thus be no question that the parents are failing in their duty to promote their children’s general interests or impeding their ability to become successful and functional members of society: the children are in this sense clearly benefiting from the education they receive. The problem, however, is that the education is unreasonable: a core component of the private schooling the children receive is the belief that their religious group is superior to all others. The children are regularly taught that nonbelievers are of less moral worth, even lesser beings, than members of their own community. The students are taught that the wider society in which they live is not a valuable moral project, but rather an undesirable compromise with heretics, one that is only tolerated until the political situation becomes more favourable.” (Quong, Liberalism Without Perfection, 301-02).
My own view is that a liberal democratic state would be entitled to, and indeed ought to, shut down this school, with coercive force if necessary, for many of the same reasons Corey advances in favour of the importance of inculcating the core political values of freedom and equality in amongst the population of a democratic society. But, as at least given what I’ve read so far, Corey’s theory seems incompatible with this conclusion. There are no obvious rights violations in the example, and so I assume Corey would say that while the state can use various forms of non-coercive democratic persuasion, it should refrain from using its coercive power to shut down the school. If that is Corey’s view (and I’m not sure it is—I’m just speculating based on what I’ve read so far) then I think critics may be right to worry that his view lacks the resources to address one of the central ways by which hateful doctrines are spread in society. As many political scientists and theorists who work on education will attest, people’s core political views are heavily shaped by the views they are exposed to in primary and secondary education, and so if the state doesn’t use its coercive power to close private schools like this, it may lack the effective ability to prevent the growth of a Hateful Society. More generally, I doubt that people who want to teach their children bigoted or racist doctrines have any right to do so, and more strongly, I doubt there is even a right at stake when people want to express hateful doctrines to adults (though I won’t try and defend this stronger claim here). And so if restricting the negative liberty of such persons looks, in some circumstances, essential to preventing the spread of dangerously hateful ideologies, I am not clear why liberal democrats should, as a matter of moral principle, be worried about using such coercive measures.
But there’s plenty more to discuss from the introduction and chapter 1, apart from the three comments I’ve made, so at this point I’ll stop and invite everyone else to jump in to the discussion.