Brettschneider Reading Group: Final

I, too, join the praise for Corey’s work and appreciate the invitation to participate in this forum. Writing an original, well-executed and compelling book, such as this one, on a topic that has been debated for so long and by so many influential thinkers is an outstanding achievement.

There is no text for me to summarize, so here are my questions and comments:

1. First I want to challenge Corey’s application of the means-based limit to one important question: whether compelled exposure to the state’s speech can be justified. Corey not only claims that the state should not unilaterally force people to accept certain positions (e.g. dropping a substance in the public water supply that would make everyone reasonable or putting in jail those who utter hateful slogans). He also claims that the state should not coerce people to become acquainted with its views. I hold a different view. First, notice that there is a sense in which the means of persuasion must be coercive, if only because the state cannot speak at all unless it coercively obtains funds for that purpose. Members of the KKK would certainly not be persuaded to finance public efforts aimed at persuading them to abandon their views. Instead, they would be taxed. So we can plausibly say that all state speech is at least coercively supported. What interests me is Corey’s position on something that lies between the coercive support of state speech (which Corey takes to be unproblematic) and the coercive eradication of hateful views (which Corey rejects): namely, the coercive exposure to state speech; being forced to learn the state’s position and reasons.

Can the state force the members of hateful groups to listen? Consider a concrete policy. Courts often force certain people into various kinds of therapies and treatments (e.g. mandated attendance to A.A. meetings after drunk driving). Similarly, members of hateful groups could be forced to attend occasional deliberative meetings where they would have to listen, while remaining free to reject, the state’s position on the relevant issues. Would this violate the means-based limit? The point is relevant because most or all of the means of persuasion that Corey considers can be ignored (speeches, court opinions, monuments, and so on). This is not the issue of effectiveness. It is not about people remaining unpersuaded by the state’s reasons, but about remaining ignorant about them. In its official role as defender of the values of free and equal citizenship, does the state’s right to speak entail an enforceable duty to listen? Put differently: Is coercive exposure to state speech a legitimate means of persuasion?

Corey’s answer: “democratic persuasion should not be forced on adults” (p. 99). He rightly claims that forcing (unschooled) adults to attend school in the same way that we force children to do so would violate their fundamental rights. He then goes on to suggest that any form of coercive exposure to the state’s views on democratic values would similarly violate adult’s rights of freedom of expression, conscience, privacy and autonomy. But I think that forcing adults to attend school is not comparable to forcing them to occasional means of democratic persuasion. Compulsory adult schooling lacks a clear rationale, and it would seriously affect a person’s pursuit of her plans of life, with potentially serious implications for her welfare. By contrast, requiring members of the KKK to attend, say, a three-hour democratic persuasion session once a year, in which they would be exposed to the reasons why the group’s values are considered to be incompatible with the ideals of free and equal citizenship, does not strike me as a violation of their fundamental rights at all (i.e. a violation of Corey’s means-based limit). This would be comparable, it seems to me, to forcing adults to become familiar with the content of certain laws. If the state has a minimally decent reason for doing so, and people would be minimally affected, I see no problem. Under the measures I have outlined, members of hate groups may continue to believe and express whatever they want, and their lives would go on as usual. Merely being required to know the public values of your state at a trivial cost does not seem to me to violate any right—not to say a fundamental one. In short, I think that Corey needs a more robust argument to show that forcing democratic persuasion on adults cannot be justified at all.

2. Now I want to suggest that Corey’s account of freedom of expression may be incomplete in a way that could have significant implications. He tells us that the state should “protect the right to express all opinions, regardless of their content, provided that they are not direct threats.” What exactly does this right entail? When it comes to what may be said, we should have absolute freedom, shorts of threats. But there is another dimension of freedom of expression that is often overlooked in the legal and philosophical literature. It refers to the acceptable limits on when, where, and how we may make our viewpoints known to others. I may have figured out the mystery of the universe, but I simply have no right to wander around your neighborhood in the middle of the night with a loudspeaker breaking it to you. The occurrence of speech, as opposed to its content, can and should be significantly regulated by the state. People’s fundamental rights are respected as long as they have adequate opportunities to communicate with others. The state can rightly use coercion to prevent the KKK to broadcast random ads in open radio and television, for instance. Let them publish websites, books, CDs, and magazines; even let them have a cable TV channel. But we can limit the expression of their viewpoints in the same way that we limit the when, where and how of certain kinds sexual and violent content. Whatever we think about these universal restrictions, no one, in my opinion, has made a compelling case that they constitute a violation of fundamental rights. And I, for one, would strongly prefer my young daughter to see billboards in the street with explicit sex than billboards comparing blacks to dogs.

Consider Snyder v. Phelps. In this case, the Westboro Church picketed near the funeral of an American soldier who died in Iraq. The posters expressed hateful opinions against gays and military personnel, given the army’s tolerance of homosexuality. The Supreme Court ruled in favor of the picketers. Corey agrees: “the Westboro Church was careful enough to frame its views in terms that are sufficiently general to express a viewpoint rather than a threat” (p. 133) This is not enough for me. Suppose there was a law saying that the picketers could not come within 10 miles of the site of the funeral. This law, in my opinion, would not violate rights. The members of the Church could have picketed elsewhere (the United States has something like 3,800,000 square miles of territory) and they could have expressed their views by other means (they did publish opinions in their website, which was fine). But instead they traveled to the site of the funeral. Mr. Snyder, the father of the deceased, said: “They wanted their message heard, and they didn’t care who they stepped over… My son should have been buried with dignity, not with a bunch of clowns outside.” I think he is absolutely right. The members of the Church had many other adequate venues to articulate and express their views. Publish books, rent Madison Square Garden, record a CD with melodious hateful songs and give it for free. So I would ask Corey to explain why he would regard the hypothetical 10 mile law as failing to adequately “allow citizens to develop and affirm their own political views” and thus violate fundamental rights (p. 72). Why would their other opportunities to express hateful viewpoints not have been enough?

Significantly regulating the when, how, and where of hateful speech strikes me as compatible with the ideals of a free and democratic society. On what grounds? On the same grounds that Corey articulates so well for allowing the state to use public funds for democratic persuasion: (a) it shows proper concern for those who would otherwise be harmed by hateful speech, such as Mr. Snyder in the picketing case, and (b) the haters would be left with adequate venues to develop and assert their views. In short, I would like to ask Corey what he makes of the two dimensions of freedom of speech that I have tried to distinguish, and the thesis that limiting the expression of hateful speech to certain times and places, as opposed to banning them altogether, is not a violation of rights.

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2 Responses to Brettschneider Reading Group: Final

  1. Peter Stone says:

    Two quick points. First, I think your examples of forced exposure to certain events make plain why the state can’t do what you propose. (Note also that forced exposure is not the same as forced listening–even if I’m locked in a room with a lecture by John Rawls piped in via loudspeakers, I can always tune the talk out as best can.) We compel people to attend AA meetings once they have been convicted of an alcohol-related crime. We compel people to attend therapy once they have been proven dangerously insane. But we only compel people to do things once they have either acted in a way that extends beyond their rights, or have demonstrated that they are incapable (not unwilling) to exercise those rights. A Klansman meets neither condition simply by virtue of being in the Klan.

    There is, I guess, always the possibility of arguing that democratic citizenship is sufficiently like a political office as to justify requiring people to prepare for that office. This might justify something like mandatory continuing democratic education for adults. But that would impose demands on people far beyond what most liberals would countenance, and even then, it could only justify general programs of democratic education, not programs specifically targeted at people who oppose democratic values.

    Second, your example of the Westboro Church doesn’t strike me as taking the value of free speech seriously enough. Rent Madison Square Garden? Seriously? That sounds like something that opponents of campaign finance reform would say. Everybody’s got a right to found a newspaper or a television station, after all–me, you, the Koch brothers, Rupert Murdoch, homeless people, etc. But it’s rather obvious that for most people–i.e., everyone outside the top .1%–options for expressing opinions are limited. It woudn’t take many restrictions on opportunity to render the right of freedom of speech pretty useless for most people. I would also prefer that your daughter not see racist billboards, but that exact same argument would shut down most of the outlets a racist could possibly access (unless he’s incredibly rich). If you don’t think racists should have free speech rights–which is the direction this argument tends to follow–then your difference with Corey is more serious than you suggest.

  2. Peter, thank you for your comments on my post. I have also found your remarks on all the other posts insightful.

    Regarding your first point, consider the following. In some countries, cigarette packs are required to have shocking images and slogans about the harms of smoking (see, especially, the policy that was recently enacted in Australia: http://www.bbc.co.uk/news/world-asia-20559585). This instance of state speech illustrates compelled exposure, or gets very close to it. Suppose that, in addition, you cannot buy cigarettes unless you read out loud to the vendor the following line: “I acknowledge that, according to the scientific evidence compiled by the government, smoking increases my chances of dying from cancer by X percent.” On my understanding, that would surely qualify as compelled exposure. Now, in my opinion, it would violate no rights whatsoever. We might quibble whether it would be a good or bad policy. But it would be a legitimate one. By contrast, forcing smokers to attend non-smoking persuasion sessions for 20 hours a week for as long as they smoke would be another thing altogether. In this case, unlike the former, people’s pursuit of their plans of life would be significantly affected. That was my point about compelled exposure to democratic persuasion. Contrary to Corey’s suggestion, it is not like compelled (adult) schooling. If there are decent reasons for compelled exposure (as I believe there are: namely, the very reasons that Corey articulates for democratic persuasion), and if the specific policy would trivially affect persons, no rights would be violated. Recall that Corey gives us a clear standard. The racists should be allowed to develop, affirm, and express their views. I simply cannot see how a measure of the sort I have suggested would fail to thus treat them as free and equal citizens.

    As for your second comment, when it comes to all reasonable viewpoints, I fully endorse your Rawlsian claim about securing the fair value of freedom of speech. We should not merely guarantee the formal political freedom, but also ensure roughly equal opportunities to exercise it. However, it is not clear to me that we owe the same treatment to those who hold unreasonable viewpoints. You suggest that down the road I don’t really think that racists should have free speech rights. A better description of my view would be that our (everyone’s) opportunities for expressing hateful viewpoints should not be as extensive as our opportunities for expressing reasonable viewpoints. I am not denying the racists a fundamental aspect of the right to freedom of speech in the liberal tradition (arguably, the most fundamental aspect): namely, protection against persecution or punishment for expressing their views. This, of course, implies that racists should have adequate opportunities to make their views known. I have mentioned some venues that are by no means trivial (and you can ask anyone who has been censored about that). For instance: publish books, CD’s, pamphlets, magazines, newspapers, websites, and so on. My problem is with hate speech in certain public spaces, for the reasons that Waldron, among others, has offered. To insist on the comparison, I do not think that a ban on billboards showing explicit sex is a violation of the right to freedom of speech, whereas a ban on all publications with that content would surely violate freedom of speech. It seems to me that the case for having a similar policy regarding hate speech is even stronger.

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