Brettschneider Reading Group: Conclusion – Value Democracy at Home and Abroad

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.

I

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.

II

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.

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6 Responses to Brettschneider Reading Group: Conclusion – Value Democracy at Home and Abroad

  1. Peter Stone says:

    You seem to be expressing a consequentialist view of expression here. The state should clearly express certain democratic values. If the most effective way to do that is to flog publicly a Klansman, then so be it. But I would imagine that any purely consequentialist defense of free expression would be anemic at best. A purely consequentialist defense of free speech would probably rank, for example, most of what most people say about politics as pretty worthless. (Rational ignorance and all that.) But I would think we all agree that people’s contributions to political debate do not deserve protection strictly in proportion to the contribution they make to high-quality democratic decision-making.

    I would assume that Corey’s defense of free expression–and, indeed, any successful defense of it–would be at least partially nonconsequentialist. People should be able to express views on matters important to them. That is of value regardless of the value of the views or the expression offered. If so, then there’s an obvious reason why the state can express its attitude to certain beliefs in politicians’ speeches but not in jail sentences for Nazis, even though both actions obviously do express an attitude towards democratic values. I’m not sure how your account of hate speech laws takes this into account.

  2. Loren King says:

    Partial, down-side consequentialism, sure: it doesn’t matter the quality of one’s contribution to public debate, but if your contribution is aimed at challenging the citizenship status of others based on odious claims that violate the core values of liberal democracy, then there’s a problem. If the solution to that problem is to deploy the expressive powers of the state for the purposes of democratic persuasion, then we need to explain why, as Jon asked at the outset, the bright line is to be drawn between expression and coercion, when we know that the state’s expressive powers can be variably coercive, yet still satisfy the conditions Corey offers (or at least that’s how it seems to me at first blush; that may be one line of response for Corey, to show that some of us are mistaken on this).

    Peter: “I would assume that Corey’s defense of free expression–and, indeed, any successful defense of it–would be at least partially nonconsequentialist. “

    Sure, yes, that was my thought when I stressed that this way of thinking about the spectrum between coercive and non-coercive state persuasion would be sensitive to:

    (i) the likelihood and egregiousness of the consequences of hateful speech;

    (ii) the need for public justification of the state’s move along the spectrum from expressive to more directly coercive persuasion, with that justification referencing both (i) and

    (iii) the degree to which the speaker has been unwilling to argue sincerely within public reason, and is instead wilfully and unreasonably hateful without even trying to justify their speech, even when (i) has been demonstrated to them and (ii) satisfied.

    Now, if we simply say that they don’t need to justify their speech because it’s value just is that it is the free expression of a moral agent (i.e. “People should be able to express views on matters important to them” and “that is of value regardless of the value of the views or the expression offered”), then I think we get out of the realm of political liberalism, don’t we?

    It seems to me that even if there were an indisputably clear and present danger of hateful speech violating other citizens’ standing as free moral equals (or much worse), and even if the hateful speakers wilfully disregarded evidence and argument expressed by the state’s persuasive efforts, (ii) is a demanding condition: more coercive state actions would have to meet the state’s own standards of respecting the free and equal status of the offending speakers.

    So, flogging of Klansmen is clearly out (… literal flogging … intellectual flogging is richly deserved, but almost certainly falls on deaf ears). I’d say even jail sentences for unrepentant Nazi agitators is probably off the table too, within Corey’s framework, so long as they don’t commit assault, libel, slander, etc.

    But what about legal penalties imposed on the offending speaker and their broadcaster, with collected fines directed to public education programmes and the like? Or what about compelling broadcasters, upon threat of severe financial penalties, to pair hateful messages with mandatory criticism and to support public awareness efforts against racism or the like? And what if hate groups and broadcasters refused to pay – would more traditional forms of state coercion then be justified?

    There are obviously muscular forms of liberalism that have a problem with the state responding in the way I’ve just described. But if, like Corey, you want to stay within political liberalism, and you want to draw the line between expressive and coercive action by hitching democratic persuasion to the former but not the latter, then I think you run into this problem.

    Again, if we confirm that illiberal speech meets the public relevance test, is motivated solely by hateful irrational animus, and that the speaker is wilfully indifferent to evidence and reasoned argument (specifically about such things as the public relevance of their actions, the duty citizens and the state have to affirm core values against denialists, and yes, the likelihood of harmful consequences attending their speech), then it’s hard to see why 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.

  3. Peter Stone says:

    You seem to think that the line between fines and imprisonment, flogging, etc., is of great importance. I’m not clear on why. If you simply see them as points on a continuum of punishment, then I’m not clear on the basis for drawing this line, unless it’s purely about cost-benefit calculation (in which case, the line is not at all bright). Corey thinks that there’s a bright line between argument and fines/imprisonment/flogging, etc., and that democratic persuasion falls on same side as the former. The reason, I take it, is that people have rights not to be subjected to the latter so long as they do not violate the rights of others (which merely expressing hateful racist views does not do–or do you disagree?). If you want to draw a different line, I’m unclear why, or how the whole story wouldn’t collapse into a consequentialist one, i.e., we do whatever we have to do to make the democracy stable. And the latter approach would not be a liberal one.

  4. Loren King says:

    Peter, I guess I’m having trouble recognizing my thoughts in your reservations. My aim hasn’t been to offer an alternative account to Corey’s, but to show that some of the later illustrations he draws on are indeed friendly to his position, but also suggest that his distinction between expressive and coercive modes of state persuasion may be difficult to sustain from within his political liberalism.

    When you attribute to Corey the view that mere expression does not violate the rights of other citizens, you seem to be pushing him toward the neutralist camp, which of course is a move he wants to resist.

    So, when you ask if I disagree that “merely expressing hateful racist views” doesn’t violate rights? I think I probably would disagree with that as an unqualified assertion, yes, but that’s neither here nor there: I’m pretty sure Corey disagrees, or he wouldn’t be trying to argue this middle ground!

    I mean, the whole motivation for his exercise is the thought that there can be a threat to democratic citizenship in unrestrained hateful speech, but that there is a parallel threat in simply silencing those speakers through state coercion.

  5. Peter Stone says:

    Loren, I’m sorry if you think I’m missing the point here. Perhaps this will help. You say that we all agree that “there can be a threat to democratic citizenship in unrestrained hateful speech.” I guess I wouldn’t put it like that. It can be a threat to democratic citizenship if people reject the values upon which liberal democracy rests. That seems clear. So if we are worried about that, what can we do about it? One thing we can do is send people who reject those values to reeducation camps. Another thing we can do is to stop those values from spreading. One means of which we have available to try and do this is to punish people who express those views in public. But part of believing in democratic citizenship is that we are very reluctant to use certain of those means, even to promote an end that we all agree is appropriate. And the reason why we are so reluctant is because people have a right to speak their mind, even if what they speak is stupid, poorly thought out, etc.

    Now, on this story, the threat to democratic citizenship is not the expression of the hateful views itself. It’s the fact that people have the hateful views, and may do other things that undermine the ability of the liberal democracy to function. But the expression of the views, all by themselves–just saying something disgustingly racist, misogynistic, etc.–is not directly the problem. At best, it’s indirectly a problem because its cumulative effects can be bad for democracy. That’s surely built into the structure of rights–if I give you a right to do certain acts, then the cumulative effects of lots of people using those rights in undesirable ways might be bad. But that doesn’t mean they weren’t legitimately exercising their rights along the way. It also doesn’t mean they violated anyone’s rights along the way. If they did, then we surely wouldn’t say they were exercising a right of their own at all. Surely it’s built into the structure of rights that you cannot violate someone else’s rights simply by making permissible use of your own.

    It sounds like you disagree with the claim that the expression of such views per se do not constitute rights violations. Maybe Corey does as well–I’m not sure. But I think that if Corey does believe there is a rights violation that follows merely from certain speech, then I agree that he would have trouble resisting the conclusion that such speech may legitimately be criminalized. (He might still resist it on cost-effectiveness grounds, but we all agree that this is not the most important issue at stake here.) He’d also have to deny that people have a right to express hateful views. I think you make this denial as well–is that right? If so, then again I’m not sure why there’s any special problem for you about criminalizing it, apart from considerations of effectiveness.

    • Loren King says:

      No, Peter: I don’t think you’re missing anything! I do think you want to push this particular part of the conversation into a rights framework that is going favour the neutralist impulse. To be sure, as you say, any sophisticated account of rights is going to account for indirect bads, but I suspect if I were to press you to cash out that view more fully, it would end up looking a lot like an effort to chart a middle course between interventionist and hateful dystopias, detailing more sophisticated (and probably more capacious) categories of acceptable regulation of speech (a la some of Claudio’s concluding reflections).

      I think the real issue here is how we justify rights, and if you’re a political liberal then your justification of a speech right is inevitably going to appeal to political values. I don’t think it’s an easy matter for a political liberal to simply agree or disagree “that the expression of such views per se do not constitute rights violations.” Even if there are hateful expressions that violate rights, it isn’t clear why criminalization is a straightforward response. And the worry isn’t merely cost-effectiveness: simply criminalizing each and every purported speech-related rights violation threatens the dystopia imagined by the neutralist camp, of a tinkering state meddling in our lives, deciding which speech act is or isn’t a violation of someone else’s rights (I suppose a cynic would say that sounds a bit like Canada’s Human Rights Commission). So that’s why, even if I deny a right to express certain hateful views in certain ways, I would still have a problem with the heavy hand of the state.

      Also, I don’t know if we all agree that there can be a threat to democratic citizenship in unrestrained hateful speech. I do know that Corey wants to take that claim seriously, along with the corresponding neutralist impulse to reply that speech ought not to be restrained (excepting “clear and present danger” scenarios and “time and place” regulation).

      I guess I’d also quibble with your reformulation. You say it’s clear that democratic citizenship can be threatened if people reject the values upon which liberal democracy rests, and that we then are faced with the question of how to stop the spread of those illiberal and antidemocratic ideas. It seems to me, however, that there’s another step. What you say here seems to me to be shorthand for something like ‘when people reject the core values of liberal democracy, then may then do things that threaten liberal democracy, such as undermining the standing of fellow citizens as free moral equals.’

      So I don’t think it’s quite right to say that, even on your framing of the story,

      “the threat to democratic citizenship is not the expression of the hateful views itself. It’s the fact that people have the hateful views, and may do other things that undermine the ability of the liberal democracy to function.”

      True, people with hateful views may well do other things that threaten liberal democracy, but one of the things they can do is willfully propagate hateful speech. Here the real problem for liberal democracy is not what’s in their hearts and heads (their illiberal beliefs), but what they do based on those beliefs.

      You suspected earlier that an approach like Corey’s would have to be at least partially non-consequentialist. I agree, but the flip side is being partially consequentialist, and here’s one aspect of that: who cares if people reject the core values of democracy in their hearts? (Corey, at least on Sarah’s reading, may well care, but I don’t think he needs to). I care if their rejection makes them do things that undermine liberal democracy, specifically the standing of fellow citizens as free moral equals. That’s the prohibitionist’s worry, after all: a hateful society full of vitriol and lies, sustaining legacies of racial marginalization and just waiting to inspire violence, but with everyone having the right of unrestrained speech.

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