Permissible, Obligatory, and Prohibited State Speech: A Response to Mark Graber
I want to begin by thanking Concurring Opinions for hosting this symposium on When the State Speaks. It is a terrific list of contributors, and I look forward to engaging with all of them. Most critics of State Speaks divide into one of two categories: those who think the theory might be too demanding in its account of what the state should say and those who think it might be too weak. Despite his sympathies with the project, Paul Horwitz seems to fall in the first camp, worrying that my account might be too permissive. On the other hand, Robin West thinks my account of state speech is potentially too weak, if it excludes using tort to further the values I want to defend. In a previous symposium (www.publicreason.net) critics were roughly even on whether they thought the account should be more or less robust in what the state should say.
I will respond to Paul and Robin in a future post but it is important to first clear up a potential misunderstanding. It would be a misreading of my view to think that the state must either speak in favor of a view or condemn it, as Mark Graber seems to assume. This overlooks the cases of permissible state speech where the state has no obligation either to promote or criticize a view. For instance, the state has no obligation to promote or argue against “rooting for the home team” in public schools.
To avoid this misunderstanding, it is essential to distinguish three categories of state speech: obligatory speech (what the state should say), prohibited speech (what it should not say), and permissible speech (what it is allowed or optional for the state to say). The part of my book on “democratic persuasion” focuses on what is required of the state as a matter of obligation. It ought to promote the ideals of free and equal citizenship while protecting the rights of citizens to dissent from these values. This leads me to argue that criticism of viewpoints that oppose these values, namely hateful viewpoints, is obligatory for the state. At the same time, state speech which itself opposes these values is prohibited, though citizens still have the right to express hateful viewpoints (see p.126). So, for instance, on my view it would count as prohibited state speech for government buildings to fly the flag of the slave-owning Confederacy. In general, the limits given by the Establishment Clause also concern prohibited state speech.
But it is important to recognize that there is some state speech that is neither required of the state nor prohibited. Such cases are instances of permissible state speech. I say, for example, on page 90 of the book that promoting awareness of basic health is in this category of permissible state speech. I write, “I hold open the possibility that other kinds of state speech might be neither obligatory nor prohibited. Pronouncements in favor of public health, such as warnings about smoking or trans fats, do not violate an ideal of equal citizenship . . . Such pronouncements might be permissible . . . .” The book argues that cases of permissible state speech might arise when a viewpoint passes the test of not opposing the liberal values of freedom and equality. The state is thus neither prohibited from expressing the viewpoint, nor obligated to criticize it. By overlooking the book’s inclusion of this category of permissible speech, Graber misleadingly assumes that I am committed to a state obligation to either promote or condemn instances of speech, such as school boosterism. On the contrary, this kind of state speech is permissible, not obligatory or prohibited.
Is teaching basic rationality by the state required state speech? In my discussion of Yoder, I take the line that Mark Graber suggests and argue that it is not just permissible but required. Indeed, this is why I think Yoder is wrongly decided. The ability to reason is a precondition of exercising ones’ rights as a free and equal citizenship.
But is “rooting for the home team” required state speech? This would be a strange view and I am unsure what defense there might be given for it. Rooting for the local town high school should not be a requirement of any government. It likely is permissible state speech if we mean by this that local schools might be permitted to encourage people to support the home team.
This brings us to Mark’s example of Victorian poetry. Mark writes that state speech might include the message that “[c]ultured persons recognize Victorian poetry is better than the American poetry of the time.” I do not think such a claim is required state speech but I would be interested to hear the possible argument for this position, if Mark holds it. Such speech might be permissible, but we can imagine versions of the example in which it is prohibited. I think schools should be prohibited from promoting (as opposed to historically teaching) Victorian views on matters of sexual morality that undermine women’s equality or that promote a particular religion. Depending on how schools praise the Victorians, this kind of speech could verge on the teaching of religious values of the kind that I think the establishment clause rightly prohibits.
I am not sure if this leaves any disagreement between Mark and me. I sense he thinks the state should say more than I am willing to require or permit. But we would have to hear more about what this speech is and whether he is arguing for permissible or obligatory state speech. Of course, if he wants a broader category of required state speech or rejects my claims about what speech is prohibited he risks endorsing the kind of view that Paul Horwitz warns about in his post.