Brettschneider Response to Quong on the Introduction and Chapter One of When the State Speaks

I would like to begin by thanking the contributors to Public Reason symposium for such careful summaries of the book and such thoughtful and probing questions. The discussions in the comments section have also been terrific and I am grateful to all who participated. I will begin to post responses now to participants, beginning with Jon Quong’s eloquent and lucid remarks on the introduction and chapter one of When the State Speaks, What Should it Say? (I note that due to vacation it might take me some time between some of my reply posts.)

Quong begins by outlining my ambition of avoiding both the dystopias of the Invasive State and the Hateful Society. He notes that I aim to do so by combining robust rights against coercion with “democratic persuasion.” The state engages in democratic persuasion when it combats hateful and discriminatory viewpoints by using its expressive capacities, including its spending power.

Quong asks why my opposition to hateful expression does not lead me to a more European rather than American approach to free speech. In Europe free speech is seen as a value but one that has to be balanced against other values. The European approach allows the state to use its coercive power to ban hateful expression, imprisoning people for their speech.

In contrast, my aim in the book is to defend the distinct American approach to free speech when it comes to rights against coercion. On my view, the state should follow the rule of “viewpoint neutrality” when it comes to its coercive power: it should not coercively ban any viewpoint as long as a speaker is not directly threatening a particular individual or group.

The mistake of the balancing conception is to think that the only way to recognize the values of liberty and equality is to trade them off. But value democracy proposes to respect those values simultaneously. We can pursue the transformation of illiberal beliefs while maintaining robust free speech commitments in the form of viewpoint neutrality.

One justification for limiting the right of free speech when it comes to hateful expression is that the liberal democratic state needs to “take its own side” by condemning viewpoints that are antithetical to the free and equal status of its citizens. But I argue that this can be done while protecting the right of free speech. The state can make clear its opposition and lack of complicity with hateful viewpoints by using its expressive capacity to condemn them and explain why they should be rejected.

According to the balancing conception, another rationale for coercively limiting hate speech is that it would make the society more stable by limiting views that might undermine liberal democracy. But to see the superiority of my approach over balancing, consider a world in which democratic persuasion was as successful in pushing back against hateful viewpoints as coercive punishment of those views. If there were a small-added advantage to protecting all viewpoints, this would recommend value democracy over its alternatives. But even if it were less successful, I maintain it can push back these views such that there is no risk of a collapse of democracy. Value democracy sufficiently answers what I call the “stability worry” about the Hateful Society.

But on my view the advantages of viewpoint neutrality to a democratic society are not small. They are significant such that even if democratic persuasion is successful in curtailing hateful viewpoints, but less effective than coercion, we should still pursue a path of protecting all viewpoints while engaging in democratic persuasion.

In general there are two main reasons to pursue a viewpoint neutral rule. The first is an argument about how the values of liberal democracy are respected by viewpoint neutrality. I argue in chapter three that these values are at odds with the content of some of the views that are protected. But protecting them still serves to respect an ideal of all citizens as free and equal.

The second concerns the problem with criminalization. It is important to remember that bans on hateful viewpoints entail punishment for those who hold those views. The harm that comes with criminal punishment is so significant that we need not only good reasons for it but a lack of alternatives to pursue the same goals that criminalization hopes to achieve.

2.
Quong also asks whether my view ultimately requires the state to express more than a minimal promulgation of the “reasons for rights” by defending and promoting the ideal of free and equal citizenship. Why limit the state from expressing more fundamental conceptions of justice, such as a deeply egalitarian philosophy regarding property?

I agree with Jon that the values that need to be articulated by the state are substantive and tied to my theory of what makes the state legitimate. But that is quite different than claiming the state should articulate a full-blown theory of justice, criticizing all who dissent from it. Such a view would turn matters of reasonable disagreement into issues of state criticism and condemnation. But that would go too far and risk tamping down on issues, which ought to be the subject of democratic debate.

Consider, for instance, whether the state ought to criticize libertarian views as insufficiently concerned about equality. On my view that would wrongly subject some reasonable (but perhaps wrong) views to state persuasion. At issue between libertarians concerned about justice, such as my colleague John Tomasi, is often an empirical issue about how best to pursue an ideal of equality. They do not dismiss the value of equality, unlike the supporters of hateful viewpoints. On my account, the only viewpoints that are subject to democratic persuasion are those that clearly conflict with the values of free and equal citizenship

Quong might push back that there are surely some forms of libertarianism at odds with the values of free and equal citizenship. For instance consider an extreme variant that disregards any obligation, charitable or otherwise, to prevent the starvation of children. I concede here that democratic persuasion should not limit itself exclusively to hateful viewpoints that focus on race or ethnicity. Viewpoints that allow citizens to starve should be subject to government criticism.

Focusing democratic persuasion on clear cases of conflict with free and equal citizenship does not imply that the state should ignore economic inequality. To the contrary, I think that the liberal democratic state should take action on. Economic inequality is not a protected right. It is a wrong that should be corrected. As Peter Strong recognizes quite clearly, my theory does not oppose all state action. Rather, it singles out some viewpoints as protected against coercive bans, but rightly subject to criticism. In this sense economic inequality is an issue that should be addressed by traditional debates in political theory about redistribution and reforming the basic structure of society. It does not lend itself in the same way to state persuasion.

3.

On Jon’s third point, it becomes clear in chapter 3 that I think that children present a special case. They should be exposed to democratic persuasion through required schooling. They retain rights to dissent from the state’s message. But unlike the case of adults, there is a strong state interest in ensuring by law that they are taught the message that all citizens should be respected as being free and equal. But there will be other concerns there about the possible coercion of parents who have children.

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