The main challenge of chapter 3 is to explain and defend the view that while the state is permitted (indeed required) to engage in democratic persuasion aimed at producing reflective revision (i.e., talk people out of certain illiberal views) it may not use coercion to make people into liberals. More particularly the state must respect strong First Amendment protections on speech.
Corey’s first step in meeting this challenge is to explain why he is so adamantly attached to the First Amendment and viewpoint neutrality. At first sight one might think that he would be hostile toward neutrality. On the one hand, value democracy rejects neutrality as a starting point and embraces substantive values as foundational. On the other hand, Corey is clearly very worried about the presence of hate groups and speech that target the free and equal status of individuals. So why not join the very large group of theorists, not to mention actual democracies, who conclude that the state is not obligated to protect hate speech and indeed has a positive duty to eradicate hate speech? Corey declines the invitation. Instead he maintains that although the state does have an obligation to try and eradicate hate speech, that obligation goes hand in hand with the obligation to protect hate speech from infringement.
He begins then by arguing that value democracy has non- neutral reasons for endorsing viewpoint neutrality in the protection of speech. The state must respect the independent judgment of each and every individual (including Nazis): “protecting the right of free speech for Klan members acknowledges their entitlement to be treated as free and equal citizens in spite of their beliefs” P. 85. But then the next question is – doesn’t democratic persuasion aimed at reflective revision also fail to respect the independent judgment of the hateful citizen? Here Corey introduces the very important distinction between the coercive and expressive capacities of the state. Banning or criminalizing certain speech is coercive. But expressing the underlying reasons why we protect even bad speech is not coercive even though such expression is ideally aimed at changing minds through reflective revision.
Corey needs to show that democratic persuasion is not coercive and so he introduces two limitations to the states expressive role. The first is a means-based limit that stipulates that no fundamental rights including rights to free speech may be violated in pursuing democratic persuasion. The second is a substance-based limitation. Here the state may target beliefs that violate the ideal of free and equal citizenship only. There may be many beliefs that pose threats to the liberal order if they became widely adopted or believed. But the state should not be in the business of comprehensive soul crafting.
The second half of this chapter looks into some of the ways the state might pursue democratic persuasion. The first is through Supreme Court decisions. These ought to look toward their pedagogical function and contain a robust articulation of reasons. Corey admits, however, that Supreme Court decisions are not likely to have much of an impact on ordinary citizens. But by far the most important place to begin the work of democratic persuasion is in education. Here Corey defends a relatively robust view of the obligation to inculcate the liberal values of freedom and equality into students. Parents do not have the right to indoctrinate their children although they do have the right say whatever they want under the First Amendment, for example, he disagrees with the famous Wisconsin v. Yoder decision that exempted Amish children from public education
Comments and questions.
I am very sympathetic to the idea that states ought to engage in democratic persuasion and that that persuasion can be made compatible with a respect for diversity, pluralism and autonomy. This seems to me fundamentally right and important. Nevertheless I will raise some skeptical questions. In the first two comments I am wearing my cranky Canadian hat. The last comment takes up themes raised by Jonathan in last Monday’s post and I am sure will be discussed in even more detail when we get to chapter 5: the distinction between expression and coercion.
1. The argument in the book is a whole and in this chapter in particular is very USA focused. Indeed it is very US Supreme Court focused. So the first question is how generalizable is this argument as a whole? For example, perhaps the American legal tradition has created the problem that Corey is trying to solve and democratic persuasion is not so problematic in other places. Or perhaps (what I suspect to be the case) democratic persuasion faces very different challenges in different contexts. In Canada for example the context is multiculturalism and aboriginal politics. In this context it is not violation of free speech or religious freedom that becomes central but the negotiation of identity and self-determination. This is particularly problematic and tricky with cases having to do with gender equality. But I do not want to dismiss the threat of Nazi speech. Along these lines I would like to ask Corey how he sees this argument applying to, for example, the rise of right wing extremist and Nazi ideology in Europe (See Sunday NYT on this very point)?
2. Most western democracies have something on the books against hate speech and none have the same level of free speech protections as the USA. With regard to First Amendment law, it really makes sense to talk about American exceptionalism. If we widen the focus to look at other legal contexts, the fear of the Invasive State seems less plausible. Canada, despite Keegstra, is not an Invasive State. We do argue quite a bit about the proper scope and limit of hate speech laws but they are very rarely invoked and are mostly on the books to make a statement and to communicate to targeted groups that the state is not indifferent to their harm. Hate speech laws can say a lot. Indeed I would argue that they say much more than they do. But the main point is that I do not see the slippery slope to the Invasive state that Corey sometimes implies is involved in banning hateful speech.
3. Corey’s argument defending strong First Amendment rights does not rest entirely or even predominantly on a slippery slope to invasiveness, however. It rests on the argument that banning hate speech shows disrespect for the independent judgments of individuals who will be silenced by these laws. By placing independent judgment and autonomy at the center of treating each individual with respect, Corey has opened up a can of worms and made his job much more difficult. According to Corey the difference between banning hate speech and criticizing hate speech is that individuals can still say no to the criticism or cover their ears or choose to ignore it. Legal bans however preempt their capacity as choosers and simply silence them. It is on this basses that Corey argues for the qualitative difference between expression and coercion. But legal coercion is not the only and often not the most effective way to limit autonomy and or preempt independent judgment. The position appears quasi Hobbesian: as long as there is not a law against it then there is no infringement on your autonomy and independent judgment by the state. But this seems problematic. I fully endorse the idea that states have an important expressive role to play in articulating and promoting the values of equality and freedom. But I am skeptical that it is possible to fulfill that role without ever engaging in some form of coercion. Just speaking very loudly can drown out what other people are saying. The state has a very loud voice with a lot of resources for amplification. This might not be legal coercion but when the state speaks it might be a form of shouting down. In any case we risk being less vigilant about how the state is using its expressive capacity if we are comforted by the thought that it is not coercion. Coercion itself is not bad it is only unjustified coercion that is a problem. We should acknowledge that state expression is a form of power that needs justification.