Public Values, Civic Virtues, and the Thinness of Democratic Persuasion: A Comment on Corey Brettschneider’s When the State Speaks, What Should It Say?

James E. Fleming & Linda C. McClain

We appreciate the opportunity to comment on Corey Brettschneider’s fine book, When the State Speaks, What Should It Say? (Princeton University Press, 2012). We benefitted from our prior exchange with him in the recent Concurring Opinions symposium concerning our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013). This comment is a continuation of that exchange. He and we there observed that our books are “kindred in spirit.” Our remarks here, like Robin West’s post, may confirm Paul Horwitz’s prediction that Brettschneider’s “real burden will be defending the book from its supporters.”

Both Brettschneider’s book and our book grow out of the tradition of John Rawls’s political liberalism. As such, both are committed to governmental promotion of the public values of free and equal citizenship. Both works emphasize the distinction between permitted governmental persuasion and prohibited governmental coercion. Both contemplate that government may engage in what he calls “democratic persuasion” not only by governmental speech but also by conditioning benefits or subsidies upon a group’s not discriminating on certain bases such as race, sex, or sexual orientation.

But the two books differ in significant ways, and the differences drive our reservations about his book. First, Brettschneider’s book focuses on the First Amendment and thus upon what government should say: how it can simultaneously protect expression and promote equality. That is the subject of only one chapter in our book. Our book is concerned more generally with government’s responsibility to engage in a “formative project” of cultivating civic virtues and capacities necessary for democratic and personal self-government.

Second, Brettschneider’s book emphasizes governmental promotion of public values of free and equal citizenship, but it eschews a formative project of government inculcating civic virtues. Indeed, in our prior exchange, he suggested that our book, by defending and elaborating such a project, goes beyond what Rawls calls political liberalism to comprehensive liberalism. In response, we demonstrated that political liberals including Rawls himself as well as Stephen Macedo contemplate that political liberalism entails governmental provision of civic education and inculcation of civic virtues.

Third, our book contemplates that government may use the tool of outright prohibition of discrimination on certain bases such as race, sex, or sexual orientation. At least when it comes to freedom of expression and association, Brettschneider is wary of such an approach, disavowing it as “prohibitionism.”

Here we want to make three basic points stemming from these differences between our projects. One, we fear that Brettschneider’s political liberalism is thinner than necessary for it to be effective in promoting the public values of free and equal citizenship. (We interpret Robin West’s comment as expressing a similar reservation.) We commend his program of “democratic persuasion” by government and “reflective revision” by citizens. But we believe that Brettschneider, in supporting the government trying to promote public values like equal citizenship, while forbidding it to inculcate civic virtues necessary to sustain them, would leave us with citizens who do not possess the civic virtues, capacities, and dispositions that would enable them to be persuaded to adopt the public values like equal citizenship or that would lead them to engage in such reflective revision. A political liberalism that supports promoting public values like equal citizenship, but neglects (or worse, forbids) inculcating civic virtues in its citizens, is unlikely to be persuasive, stable, or successful (or even “possible,” to use Rawls’s formulation).

Two, we worry that Brettschneider’s expository and rhetorical strategy – presenting his theory of “value democracy” as a third theory between the neutral state and the prohibitionist state, and as a theory that will steer between the corresponding dystopias of the “hateful society” and the “invasive state” (10) – may undermine support for his theory among the states and scholars committed to governmental promotion of free and equal citizenship. In the abstract, his strategy may seem promising. But in application, it proves troublesome. For example, it leads him to portray “most liberal democracies outside the United States,” which have legal limits on hate speech, as objectionably “prohibitionist” (1), perhaps tending toward the “invasive state.” In particular, he names Canada and the Netherlands as objectionably “prohibitionist” and “invasive” states. This strategy also leads him to cast many liberal political and constitutional theorists, including Jeremy Waldron and presumably Robin West and us, along similar lines. Yet such states and theorists are the ones most likely to share his commitment that government should promote the public values of free and equal citizenship! Again, Horwitz’s prediction is borne out.

Now, we would readily understand Judge Frank Easterbrook (the author of the Seventh Circuit opinion in Hudnut, the Indianapolis pornography case) or Justice Antonin Scalia (the author of the majority opinion in R.A.V., the St. Paul cross-burning case) disparaging Canada or scholars such as Waldron, West, and us, as “prohibitionist” or “invasive.” (Canada took different approaches than they did to pornography and hate speech in Butler v. The Queen and Queen v. Keegstra.) After all, they distrust governmental regulation and hence would see measures to promote the public values of free and equal citizenship as “thought control,” hurling us down the slippery slope to totalitarianism. By contrast, political liberals not uncommonly see Canada (not to mention the Netherlands) as more fully realizing the public values of free and equal citizenship than does the United States. Yet Brettschneider slides into a view like Easterbrook’s in suggesting that such liberal democracies are “prohibitionist” or, worse yet, tend toward being “invasive states.” Some empirical analysis might be helpful here. For example, which countries more effectively secure free and equal citizenship, Canada and the Netherlands or the United States? Is freedom of speech demonstrably less free there than in the United States? Is the state clearly more “invasive” there than here? To substantiate his worries about prohibitionist, invasive states, Brettschneider gives the example of a case in Canada in which a girl raised by racist parents was removed from her home. (51) Notably, however, he acknowledges that “the actual Manitoba case had complications involving potential abuse,” and so he has to modify the real case to a hypothetical example: “we can imagine a hypothetical example in which the parents are non-abusive, but teach their children racist views.” (51) But the implication is clear: Canada is prohibitionist and invasive. We are dubious about the wisdom and prudence of such a strategy of criticizing states that seem committed to free and equal citizenship.

Three, we are concerned that it will be difficult to maintain Brettschneider’s distinction between (1) the doctrine of viewpoint neutrality in the protection of free speech rights, which he embraces, and (2) the idea of viewpoint neutrality in state speech, which he rejects. Viewpoint neutrality is an idea that is not easily cabined. For the dominant commitment to viewpoint neutrality in the First Amendment context at the present time stems not from any strong liberal commitment to governmental promotion of free and equal citizenship, nor indeed from any strong liberal commitment to respecting the autonomy of citizens. To the contrary, it stems from distrust of government and commitment to free, unregulated markets, including marketplaces of ideas. Consider again Judge Easterbrook’s opinion in Hudnut and Justice Scalia’s opinion in R.A.V. as paradigms. Those who believe that government must be neutral concerning viewpoints out of distrust of government are not likely to be persuaded by government when it engages in “democratic persuasion” and exhortation concerning the public values of free and equal citizenship. More likely, such people will resent such a hortatory state. They may disparage it as a “nanny state.” They probably will decry it for “taking sides” in the culture wars. To see evidence of such attitudes in the United States at the present time, one need only open one’s eyes. Those committed to viewpoint neutrality in the protection of free speech rights out of distrust of government, in our experience, tend to go all the way to insist on neutrality in governmental expression. In short, we think that Brettschneider’s distinction, no matter how carefully he draws it in his book, will prove unstable in the rough and tumble of our constitutional democracy.

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