Brettschneider Reading Group: Chapter Four, Democratic Persuasion and State Subsidy

I have learned a great deal from Corey’s book and the blog posts so far; I appreciate the opportunity to kick off our discussion of Chapter 4.  Because of the Thanksgiving holiday in the US I’ve written up this post in advance; my apologies if the discussion has already moved beyond the questions I pose.

Summary

In Ch. 3, Corey argued that states ought to engage in “democratic persuasion.”  That is, in their role as speakers and educators, they should try to persuade their citizens to accept an ideal of free and equal citizenship.  Corey defended the state’s use of democratic persuasion against, on the one hand, the objections of neutralists disconcerted by the specter of a nosy, paternalistic, and heavy-handed “Invasive State,” and on the other hand, the objections of prohibitionists or Militant Democrats worried that mere persuasion is impotent to prevent a society from sliding into hatefulness (a.k.a. the “Hateful Society”).

In Ch. 4, Corey further develops his account of democratic persuasion in a way that is meant to quell the concerns of Militant Democrats.  If citizens’ internal reflections, their efforts to persuade one another and the state’s own symbolic and educative initiatives fail to persuade citizens to adopt the ideal of free and equal citizenship, then states have another set of tools at their disposal: they can deny state subsidies and tax-exempt status to groups with hateful viewpoints.  The burden of Ch. 4, then, is to show that these tools are a) strong enough to persuade severe racists, misogynists and homophobes to change their beliefs (thus helping to avoid the Hateful Society), but b) not so strong that in employing them, states fail to respect their citizens’ rights to free expression and association (thus staving off the Invasive State).

So far, Corey has emphasized the reasoning component of democratic persuasion.  But in Ch. 4 he reminds us that “democratic persuasion is a term of art meant to describe the various capacities of the state and citizens that can be employed to transform hateful viewpoints…” (109, my italics).  The denial of subsidies and tax-exempt status are therefore aspects of democratic persuasion and so not coercive— even though, as Corey says, they have more “bite” than reason alone.

There are at least three ways that states can use financial incentives and disincentives to engage in democratic persuasion: they can spend money on democratic persuasion directly, e.g. by erecting monuments or funding the development of school curricula.  They can provide and withhold grants to “private” organizations, such as student groups at public universities.  Finally, they can provide and withhold tax privileges and exemptions, particularly non-profit status.

Corey argues that all individuals should have the minimum resources necessary to exercise their rights of free speech and association.  (In an aside he notes that this requirement “suggests the general importance of a just distribution of wealth” [113]).  For example, if the KKK marches to protest racial equality, it should be provided with police protection.  But the state is under no obligation to help individuals or groups with hateful viewpoints ensure that their message is accepted by those who hear it: the KKK has a right to taxpayer-funded police protection, not taxpayer-funded megaphones.  Indeed, the state has a duty to not promote the message of groups with hateful viewpoints.  Among other reasons, this is because the content of such viewpoints (e.g. “people are politically unequal”) runs counter to the underlying reasons why individuals have a right to express such viewpoints (they are politically equal).  The state must therefore clarify that while it protects the KKK marchers’ freedom of speech, it is not neutral between the KKK’s views and those of the counter-protesters: it thinks that the counter-protesters (whom the police also protect) are right, and the KKK marchers are wrong.  In protecting the counter-protesters, the state both secures their right to freedom of speech and also engages in democratic persuasion, explaining the underlying reason why both the KKK marchers and the counter-protesters have a right to free expression and association: they are all free and equal.

In addition to using funds to engage in democratic persuasion directly, Corey argues that the state also “rightly uses grants to advance a message of respect for democratic values” (111).  He examines two sets of Supreme Court cases that address the question of whether this is constitutional.  In one set of cases, the Supreme Court ruled that when the state designates a “limited public forum” it cannot pick and choose which groups within that forum to fund based on those groups’ viewpoints; the state must remain “viewpoint neutral” (115).  Corey argues that rather than remain viewpoint neutral, the state should instead a) ensure that groups with hateful viewpoints can exercise their rights of free speech and association but b) engage in democratic persuasion of such groups by denying them funds.  For example, the Hastings College of Law (a public school) should allow an explicitly homophobic student group, the Christian Legal Society (CLS), to meet and speak on campus, but it should not provide the group with funds to promote its views (118).  Likewise, the state should not compel illiberal groups such as the KKK to admit “all comers,” as this would undermine these groups’ freedom of expression and association.  But the state should withhold funding from such groups.

While requiring the state to be viewpoint neutral fails to respect the value of free and equal citizenship, it does not follow that the state can say whatever it wants.  For example, Corey argues that “gag rules” on abortion providers deny patients information about their legal rights, and thereby treat them as something less than free and equal citizens.  Gag rules therefore exceed the “substance-based limits” of democratic persuasion (123-4).  (These limits restrict the state to endorsing free and equal citizenship.)  The military’s “Don’t Ask, Don’t Tell” policy is also illegitimate for the same reason: it violates substantive limits on what the state can say by conveying that gays are unequal.  (Corey focuses on whether private universities’ rights of free speech are violated when the government requires them to accept military recruiters on campus as a condition of receiving government funds, but the more direct point about DADT seems to follows from his argument.)

In short: we should reject both a) the idea that when the state creates a “limited public forum” it must adhere to viewpoint neutrality and b) the idea that “sponsored expression” allows the state to say whatever it wants.  Instead, states should “protect the freedom of expression from coercion while persuading those who hold viewpoints at odds with the state’s own core values to change their minds” (128).

Corey argues that the granting of non-profit status is a form of state subsidy (128).   He therefore applies a similar logic to the state withdrawing a group’s non-profit status as he does to the state withholding grants (129): the state should not force the KKK to accept African Americans as members because doing so would undermine the rights of KKK members to freedom of association and expression—but nor should the KKK be granted non-profit status.  While this conclusion might be relatively intuitive in the case of the KKK, it also holds in the case of the Boy Scouts of America.  Expressing a discriminatory attitude toward gays is so central to the Boy Scouts’ identity, Corey argues, that requiring it to accept gay members would compromise its freedom of expression.  But precisely because anti-gay discrimination is central to the Boy Scouts’ identity, the Boy Scouts should be the object of democratic persuasion by the state, including by having its non-profit status rescinded.

In the last part of this chapter, Corey asks whether churches should be subject to democratic persuasion in the form of the loss of their tax-exempt status if they reject the ideal of free and equal citizenship.  Corey notes that while it is possible for churches to reject this ideal (e.g., the Westboro Baptist church’s message that “God hated fags”), not all inegalitarian religious commitments undermine free and equal citizenship.  For example, the Catholic Church’s refusal to ordain female priests does not necessarily contradict the idea that women are free and equal citizens (135).  Corey concludes that because “the question of whether the Catholic Church’s policies are actively opposed to the ideal of free and equal citizenship is ambiguous” (135), the Catholic Church should not have its non-profit status revoked, nor should it be subject to democratic persuasion more generally.

Discussion Questions and Comments:

  1. Corey states that the more muscular tactics of democratic persuasion discussed in Ch. 4 (the withholding of grants and tax exempt status) should only be used to address obvious cases of hate speech or hateful viewpoints (47).  More generally, even though democratic persuasion is not coercive, he is wary of using it in all but very clear-cut cases.  My first question is: how large of a role do these clear-cut cases play in the broader problems of racism, sexism and homophobia in (to draw on the example I know best), the contemporary United States?  Of course it would be better if people abandoned their hateful speech and viewpoints.  But at least in the US, the main obstacles to free and equal citizenship include not only explicit bigotry, but also white, male, and heterosexual privilege, as well as institutional, structural and subconscious forms of racism, sexism and homophobia.  This suggests two sub-questions.

a)      How effective is democratic persuasion likely to be at addressing institutional, structural and subconscious racism, sexism and homophobia?  If one reason why women earn less than men is deep-seated, subconscious sexism on the part of (male and female) senior executives who do not grant women major projects, then expounding the reasons for rights is unlikely to have a significant impact (at least via the obvious route of changing those executives’ minds).  However, another tactic that might be quite effective—a tactic that fits well into Corey’s model of democratic persuasion, although he has not discussed it in what we have read so far—is ensuring that members of groups that are discriminated against occupy positions of visible status and authority.  In short: I wonder if we should look for a tighter fit between a) how a society falls short of a full embrace of democratic ideals and b) methods of democratic persuasion (or other methods) to address these shortfalls.

b)      Second, might democratic persuasion as Corey describes it exacerbate the foregoing forms of racism, sexism and homophobia?  This seems possible.  Corey is attentive to the danger that democratic persuasion might exacerbate hate speech and hateful viewpoints by making people feel threatened or creating a “rally ‘round the flag” effect.  He attempts to mitigate this danger by limiting democratic persuasion to clear-cut cases.  I think this means (although there is some ambiguity here, e.g. p. 135 vs. 141, so I might be wrong) that rather than pick out specific groups that are most likely to maximally promote the ideal of free and equal citizenship and give those groups grants and tax-exempt status, the state instead only denies funding and tax exempt status to the most egregious offenders.  But especially if we construe state action as expressive, as Corey proposes we do, this approach risks signaling that the state doesn’t really mind if its citizens and institutions are just a little bit racist, sexist and homophobic.  The more that a society is characterized by widespread and subtle forms of bias, the more of a concern this seeming endorsement is.  The state that wishes to implement value democracy therefore seems to be stuck between a rock and a hard place: it can limit democratic persuasion to the worst cases and thereby appear to endorse subtler forms of racism, sexism and homophobia, or it can engage in democratic persuasion in a wider range of cases, and risk being invasive and/or wrong in retrospect.

2. The implications of the argument in Chapter 4 appear to go far beyond the private associations and churches that Corey discusses.  If the state is obliged to engage in democratic persuasion of entities with hateful viewpoints, why stop at the Boy Scouts?  The government would also seem to have an obligation to engage in democratic persuasion of for-profit corporations; for example, the government should refuse to grant Chic-fil-A a contract to provide food in state office buildings.  Likewise, the federal government should withhold funds from the state of Arizona due to its egregious immigration policy (so long as the funds are not so great as to make this withholding coercive to individuals).  State governments should also engage in democratic persuasion of local governments, if the latter endorse anti-democratic policies.

Because by “citizenship,” Corey does not mean legal citizenship (14), the ideal of free and equal citizenship apparently applies to illegal immigrants and other non-citizens within a country’s borders.  This means that the federal government’s objections to Arizona’s policies are not only on behalf of legal citizens, but all denizens of Arizona.  Moreover, one reason why the democratic state is justified in promoting the ideal of free and equal citizenship among its denizens, on Corey’s account, is that this is necessary for the regime’s stability.  It seems to me that in our inter-connected world, the stability of democracies such as the US depends in significant measure on citizens viewing the citizens of other countries as free and equal—or at least not as proper objects of racist derision.  That is, one implication of Corey’s account is that the US government has stability-based reasons to “persuade” people like Terry Jones (the Koran-burning Florida pastor) to alter their hateful viewpoints toward citizens of other countries.  If value democracy does have these broader implications, does Corey need to do more to defend his view against the concerns of neutralists?

3.  The point of democratic persuasion on Corey’s account is, first, to change people’s minds, and second, to avoid the state’s actual or perceived complicity in injustice.  But it is interesting to consider how value democracy would change if the ordering of these objectives were reversed, and in particular if it would be more attractive to neutralists worried about the Invasive State.  The state that was mainly trying to avoid complicity wouldn’t be trying to change people’s minds; rather, it would be avoiding complicity in (what is widely perceived to be) injustice.  Second, rather than prioritizing discursive expression over the withholding of funds and tax exempt status (because the latter appears more invasive), the priority of these strategies would be reversed: the state would start by avoiding contributing causally to objectionable groups and causes, not by trying to change anyone’s mind.  (I acknowledge that some legal theorists will object to this, just as they object to Corey’s claim that tax exempt status is like a subsidy.)  Finally, the focus on complicity would foreground the state’s relationships with the groups that are the objects of hate speech and hateful viewpoints.  Corey emphasizes the state’s expressive function vis-à-vis racists, sexists and homophobes and society at large, but he says less about the state’s expressive function toward the people at whom bigoted attacks are aimed.

4. Picking up on Jon’s observation that Corey’s substantive view seems very political liberal but not especially egalitarian, I want to consider whether value democracy might have more significant economic or redistributive implications than are immediately apparent.  If the state has a duty to reform hateful viewpoints, and low income, a lack of upward mobility, dashed economic expectations and/or economic insecurity contribute to such viewpoints, it might appear that the state has a duty (or at least a strong reason) to address these issues through redistributive means.  This is not coercive or manipulative: reducing people’s feelings of insecurity might well help them to better recognize the underlying reasons for rights.  On its own, this account is implausible because it suggests that those with hateful viewpoints should get priority in matters of economic redistribution. But Corey is interested not only in reducing hateful viewpoints, but also in doing so in a way that is democratically legitimate.  This would suggest the need to address issues of economic inequality and insecurity for everyone, not only those with hateful viewpoints.

5. In a more methodological vein: throughout the first four chapters, I have found myself wanting the argument to be more grounded in empirical literatures in sociology and political and social psychology.  There are two areas where I think more empirical information might help.  First, the “hateful society” rubric—while at one level very helpful— seems to gloss over some important distinctions.  In particular, in some cases hate speech and hateful viewpoints are likely to remain the positions of a very small minority; in other cases they are likely to spread.  It therefore seems that a richer account of the conditions under which hateful viewpoints are likely to spread might be helpful for deciding when democratic persuasion is necessary for reasons of stability.

I also wanted more empirical information to help persuade me that a) a significant reason for hate speech and hateful viewpoints is that people don’t know the reasons for rights, and/or that even if (a) is false, b) telling people those reasons is likely to change their minds and (more importantly) their behavior.  While democratic persuasion isn’t limited to reasoning, reasoning is a big part of it, and Corey’s preferred first course of action.  How well is reasoning likely to work?

 

 

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2 Responses to Brettschneider Reading Group: Chapter Four, Democratic Persuasion and State Subsidy

  1. Ryan Pevnick says:

    I’m very sympathetic to Jen’s questions about effectiveness. I’d like to ask about them in a related, but somewhat different, manner. Namely: why think that ‘the state’ will do a good job of picking out those groups that fail to uphold the ideal of democratic citizenship?

    In my view, it would be helpful to think more about the question of who will make such decisions on behalf of the state and what their incentives might be. Without thinking about that question, we can’t really say whether or not authorizing the state to act in such a way is likely to produce the promised outcomes. Although Corey sets aside this line of objection by saying that ‘all theories can potentially be abused’ (137), it’s not true that all theories (or all powers) are equally amenable to abuse. So, when we think about whether or not to authorize the state to pursue a particular goal, we ought to consider the types of abuse that are likely to follow.

    Additionally, whether or not it is a good idea to grant the state the power to – for example, strip groups of the benefits associated with non-profit status – depends on the available alternatives. Imagine a competing system in which the only benefit given to non-profit groups is that donations to them are tax-deductible. One benefit of such a system is that it would only benefit groups to the extent that they are able to get donations from citizens.

    It’s worth noticing that this system – like Corey’s – would work perfectly under conditions of full compliance. That is: if all citizens endorse democratic ideals, they won’t give to groups that are dedicated to undermining them. As a result, no state support would be directed towards such groups.

    Now, this mechanism – as Corey would point out – won’t work perfectly in our actual society because many citizens are committed to views that conflict with democratic norms. But, of course, many state officials are also committed to views that conflict with democratic norms. So, the question– in the decidedly non-ideal world in which we actually live – is whether the kind of top-down mechanism that democratic persuasion uses to identify qualifying non-profit groups is preferable to the bottom-up mechanism (already partly in place). To answer this question, we would need to move beyond an analysis that either takes for granted that the state will be motivated by democratic ideals or asserts that all arrangements can potentially be abused. In other words, we need to think seriously about the kinds of rules that are likely to work well in circumstances of partial compliance.

    Anyway: thanks to Corey for the thought-provoking book!

  2. Peter Stone says:

    On the topic of empirical data–one study that came to mind while reading Corey’s book was the one about the Israeli daycare center. The center had a recurring problem with parents showing up late to pick up their kids. So they instituted a late fee that parents had to pay when they were running late. But the result was the opposite of what the economists would have predicted; suddenly many more parents were picking their kids up late. The reason, apparently, was that before the fee was introduced, picking up the kids late was perceived as breaking the rules, and parents felt bad about being rule-breakers. But once the fee was introduced, parents no longer felt that being late was against the rules; it just cost a bit more. And many parents were willing to pay the extra few bucks where they wouldn’t have been willing to be rule-breakers.

    My point is that when people are denied money, it might matter a lot how it is perceived. Is it a punishment for breaking the rule? Or is it just the cost that’s attached to the choices people makes? For Corey’s argument to work, it must be the case that what the liberal state does when it speaks out and denies money to groups is more like the latter than the former. If it’s more like the former, then it gets harder to regard it as anything but punishment, albeit a mild one. Even a slap on the wrist should be regarded normally as an attempt to coerce (although this doesn’t always happen even with the criminal law–corporations often regard fines as just the price of doing business, a sign that the criminal law isn’t working as intended).

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