I’ve been appallingly remiss in fulfilling my duties this time around. In an effort to make good, I’ve spent several days poring over these excellent commentaries and discussions, as well as reacquainting myself with Corey’s wonderful book, which has taught me much about my own suspicions that the liberal’s paradox really isn’t much of a paradox at all.
The liberal-democratic state (broadly conceived) can take it’s own side in an argument, and we should be clear on when, how, and against whom it may permissibly do so. I share some of Sarah’s concerns about reflective revision; and I wonder, along with Jon and Simone and others, about the distinctiveness of coercion. Still, I think Corey’s careful elaboration of democratic persuasion is a powerful and attractive way to proceed.
Thankfully (for me) my task is less demanding than that executed so well by all of you in the preceding discussions. Corey’s concluding thoughts are appropriately tentative and cursory, inviting us to consider how his approach might fare beyond U.S. shores.
I share Corey’s optimism that democratic persuasion will fare reasonably well in that regard, although I want to introduce some possible complications, several of which have been hinted at, or stated outright, in preceding comments.
Corey suggests that his approach could be helpful in other cultural and institutional settings beyond the United States. This answers the questions Simone posed in her discussion of chapter 3: how portable is this approach, really? Why would it appeal to countries like, say, Canada, which do criminalize hate speech, yet don’t obviously seem to be on a slippery slope toward an interventionist dystopia?
Corey answers “portable and appealing” here, but his sole example is hate speech legislation in Brazil. Brazil has hate speech laws in place, but the legal scholar Tanya Hernandez argues that enforcement difficulties in Brazil make civil litigation a more effective means to counter racist expressions that reinforce societal racism and that can incite racial violence.
Perhaps Corey’s approach could inspire non-coercive, reason-respecting, democracy-enhancing institutions and practices in Brazil (it wouldn’t be the first time democratic innovations have flourished there). But consider how Hernandez, drawing on Cass Sunstein, characterizes the significance of anti-hate laws in the Americas:
social justice activists in Latin America are seeking more than just a legal symbol of anti-racist sentiment. They instead wish to deploy the expressive function of law to substantively challenge the justifications for racial exclusion in Latin America and the language which is used to do so (Hernandez 2011, 820-21).
It wouldn’t be much of a stretch to interpret Hernandez as advocating something like Corey’s view about the importance of democratic persuasion in challenging odious and harmful views and practices, but as seeing criminal and especially tort legislation against hate speech as effective ways for the state to speak in the Latin American context.
So, Hernandez presents the same challenge to Corey that has cropped up at least once in our discussions here: if legal coercion by the state against hateful speech can be an expressive and persuasive act, and if it is at least as successful as feasible non-coercive (or perhaps less directly coercive) state actions, then could we agree with Corey’s argument about how the state should speak, but discount, or even discard the distinction between coercive and non-coercive responses to the voicing of hateful views?
Now Corey obviously answers “no” here, but his reasons, as Simone points out, seem to draw him toward considerations of autonomy: when we legally coerce a hateful voice, we simply silence them, or merely impose a cost for hateful speech, and so fail to respect them sufficiently as free-thinking moral agents. Far better, Corey suggests, that the state confront the speaker with the reasons for protecting their right to speak, which also happen to be the reasons that their illiberal speech deserves public censure and rebuttal by the state.
But if legal coercion can also serve this persuasive function, and perhaps does so better than many alternative non-punitive expressive measures, then the temptation is to say that expressive and persuasive coercion may be justified in such cases.
Notice here that the problem isn’t one that Peter might be suggesting in his query to Simone: that the state is intruding on our communications and breaking down our doors, dragging us away on account of hateful speech that meets the public relevance test (then perhaps tossing us into mandatory “self-criticism and reflective revision” sessions). The state ‘s response is … well, responsive, not pre-emptive: hateful, illiberal utterances are made in ways that make them publicly relevant. The state’s response – whether through pursuing criminal charges, or hearing civil complaints and then enforcing settlements – is punitive and thus coercive. But if Hernandez is right, then the establishment of punitive laws, and the public processes of interpreting and enforcing those laws, are themselves expressive and persuasive acts. To rephrase Simone’s point toward the end of her contribution, and Jon’s observation at the outset: why isn’t that coercion justified for exactly the reasons Corey offers for democratic persuasion?
Judging from Hernandez’s work – in particular, her account of the profound structural racism, extant odious attitudes reflected in everyday language, and weak criminal enforcement of hate crimes in Brazil and other Latin American countries – I wonder if the Brazilian case pushes us toward Simone’s suspicion that “democratic persuasion faces very different challenges in different contexts.” And this draws us back to Jennifer’s concern with “addressing institutional, structural and subconscious racism, sexism and homophobia.”
The thought is, then, that some contexts (perhaps especially those characterized by particularly virulent and widespread racism, or particularly insidious forms of institutionalized discrimination?) may allow that democratic persuasion is best carried out through the expressive capacities of criminal and tort law.
Given that thought, it doesn’t seem implausible to expect that more coercive forms of state expression will only be resorted to once it is clear that hateful speech is motivated solely by hateful irrational animus, and that the speaker is wilfully indifferent to evidence and reasoned argument. After that has been confirmed, it is hard to see how measured but more coercive forms of state expression would be unjustified, so long as they remain consistent with the limits Corey plausibly imposes on democratic persuasion.
The other things Corey says by way of conclusion strike me as very interesting. Democratic persuasion is a plausible way to interpret statements and speeches by leaders in international fora, and the crafting and endorsement of various conventions, such as CEDAW. The sense in which signatories to such treaties and conventions are “bound” to their terms is, I think, for the most part well-captured by Corey’s persuasive/coercive distinction.
Still, by the end of Corey’s concluding thoughts, I found myself thinking about Hobbes (“the bonds of words are too weak to bridle men’s ambition, avarice, anger, and other passions, without the fear of some coercive power …”).
I think Corey is exactly right that “the state must have a principled and persuasive reply” to the intolerant and illiberal, a response “that defends free and equal citizenship.” But I also suspect that, when the truly illiberal threaten those core values, the state may speak of its values in ways that are justifiably coercive. I think Corey’s approach still teaches us something here: that even the state’s coercive acts can and must be expressive and persuasive in the right way, as the measured coercion justified by the ideal of citizens as free moral equals.
There’s much more to be said here, not least about how some of the earlier questions posed to Corey would play out in light of his invitation to think through democratic persuasion beyond the sovereign territorial state.
After reading Anna’s powerful analysis, it occurs that, if we have reason to worry about the future of religion under Corey’s approach (I admit I share some of Peter’s testiness on this point), then those concerns will be especially pronounced as we ponder how democratic persuasion might be framed beyond our borders. This is especially so if we consider not only the problem Anna illuminates about religious belief revision, but the reasonableness of expecting belief revision across distinct and durable peoples in the Rawlsian sense. How might Corey’s concerns be brought into conversation with Rawls’s Law of Peoples? Kevin obviously has some views on this (although I suspect my reading of Rawls is closer to Micah’s than his). Based on her thoughtful remarks here, and some of her other work, I expect Anna does as well, and of course Jennifer, who has also published important work on these themes.
And since I’ve raised that question, I may as well invoke the earlier discussion of distributive implications: if (as Jon, Jennifer, and others have noted) Corey’s approach seems to avoid issues of distributive justice that seem relevant to his concerns, then how would that worry play out if we look at duties of democratic persuasion beyond our borders, where problematic beliefs and practices are intimately bound together with dramatic inequalities of wealth and legacies of colonialism and resource exploitation? Having asked that question, how do Corey’s concerns speak to the debates, initiated by Michael Blake and Thomas Nagel, about the distinctiveness of coercion vis-a-vis duties of distributive justice beyond borders, or among distinct peoples?
I raise these questions without the faintest hope of even pointing to constructive paths to answers (not here, at least: I have some inchoate suspicions of my own), but I hope this is enough to mark a modest contribution to the remarkably rich discussion so far, and perhaps to provoke further debate.