When the State Speaks: A Laundry List of Questions

I’m grateful for the chance to discuss Corey Brettschneider’s fine book, When the State Speaks, What Should it Say?: How Democracies Can Protect Expression and Promote Equality. Because these kinds of law review-esque symposia are generally too full of throat-clearing and the lavishing of mutual praise, I’ll just dispense with that part, other than to note that the book is worth reading for anyone working in the area it treats—political theory, with an emphasis on government speech, equality, and freedom of speech, religion, and association. I will also assume that readers already know the book, which is capably summarized here. I also encourage readers to go to Brettschneider’s web page and read the excellent dialogue between him and Jeff Spinner-Halev.

My first post will be more a laundry list of questions and reactions than a single coherent critique. (A second post, God willing, will deal specifically with the book’s treatment of religious liberty.) Most of the fault for that lies with me, although part of the cause may lie in the book itself, for two reasons that seem common in books of liberal political theory of this sort. The first is that some of the key terms employed throughout the book seem either contestable or underdefined, although not for lack of care and effort. The second is that the book is quite reasonable and nuanced. This is hardly a flaw, but it does mean, as is often the case with efforts to combine liberal theory with practical recommendations, that the devil is in the details, both of the theory and its application.

Although, therefore, much of what follows is a set of questions and reactions rather than a continuous critique, I think my general reaction could be summed up in a single prediction: To the extent that Brettschneider faces a burden in defending his book, it is less likely to come from thorough-going opponents of his argument. Rather, his real burden will be defending the book from its supporters. Brettschneider’s argument, which attempts to protect the right to hold and engage in even “hateful and discriminatory” beliefs and expression while asserting a role for the state in using “persuasive expression” to counter those views, attempts to hold a middle ground between the extremes of a highly partial and coercive state and a state that is utterly indifferent to what citizens say, in public and in private. I sympathize with anyone who attempts to argue for a middle-ground approach. As I wrote (about myself!) in one book, however, the middle of the road is the place where you can be struck from traffic coming from both directions. In Brettschneider’s case, I think the greater danger actually comes from his fellow travelers, who will be tempted to give little heed to his many cautions and caveats, and extend his general recommendations to a dangerous point. (This is even more true for law professors, who suffer from an unkillable reformist bent and overvalue novelty, and thus are rarely content to leave well enough alone.) The old line holds that you should keep your friends close but your enemies closer. I am more worried about Brettschneider’s friends, and I think he should be too.

On to my questions.

1) Much of Brettschneider’s book argues that the state has an obligation to publicize “the justification for those rights protected by law–namely, their basis in the values of free and equal citizenship.” Elsewhere, he refers to “reasons” for rights, which seems to indicate there might be several, but the overall emphasis seems to be on the idea that there is a particular correct view of the justifications underlying rights. Is it sensible or advisable to argue on the basis that there is a single best justification for rights, and that promoting that particular justification–and arguing against viewpoints that contradict that single justification–is an obligation of the state and of individual citizens and state officials? Most people, I should think, believe (correctly) that rights are subject to a variety of overlapping justifications, including religious ones. Why are we better off starting with a monist approach to rights justifications rather than with a pluralist view that rights are subject to a variety of potential justifications, and that much of the consensus around the importance of rights stems precisely from incompletely theorized agreements about rights from a variety of perspectives? If the justifications for rights are importantly plural, would that not affect the kinds of policy recommendations Brettschneider makes, and perhaps chasten the nuanced but strong recommendations that he offers for a more active, non-viewpoint-neutral state? In particular, why should citizens who, in Brettschneider’s view, have an obligation to engage in a “persuasive response” to speech that undermines free and equal citizenship be obliged to offer what he thinks is the “correct” view of free and equal citizenship and the way in which it supports rights? Wouldn’t it be better if they advanced a variety of views about why rights are right, so to speak, and why hateful and discriminatory views are wrong?

2) Why are more tools needed for state action in the United States with respect to what he labels hateful and discriminatory viewpoints? Brettschneider is concerned throughout the book to steer a middle course between the dangers of what he calls the Invasive State and the Hateful Society. Without being utopian about it, the United States, for various historically contingent reasons (perhaps including the extent to which it rests on both value pluralism and actual pluralism of views on the ground, rather than a monistic view of “free and equal citizenship”), has arguably been much more successful in resisting the worst risks and harms of the “Hateful Society” than other nations, including many that argue for a more militant form of democracy. In short, is the kind of regime Brettschneider argues for in his book really necessary, in light of both the relative success of its current approach and the possible risks of a more interventionist state? Later, he writes that the state should engage in democratic persuasion “to  challenge and change the minds of those who do not appreciate the importance of free and equal citizenship in a democratic society,” such as Klan members. But he then adds that the Klan may well refuse to listen or change its views, but that it is still “important to convince third parties and the population at large of the values of free and equal citizenship.” Given that the Klan likely won’t listen, aren’t the third parties the real intended audience for democratic persuasion by the state? And don’t they generally already share a belief in free and equal citizenship, albeit perhaps for varied reasons? To the extent that democratic persuasion is unlikely to persuade outliers and thus will serve mostly to preach to the converted, why is it really necessary to add to the arsenal of tools for democratic persuasion, as Brettschneider would have us do?

3) Brettschneider writes that “democratic persuasion reaches beyond state expression and includes the use of state subsidy.” I appreciate his seeming distinction between expression and subsidy, but I am still unsure about the degree to which he views the two as equivalent, and its legal implications. To put it more directly, to what degree does he think that funding is “expressive” or equals “speech?” And what implications should that have for private “expressive” funding? If government funding is expressive, then does that suggest that there is also such a thing as private expressive funding–and thus that the Supreme Court got it right in its campaign finance cases when it concluded that “money is speech” and that limits on campaign contributions are constitutionally problematic?

4) A particularly important concern for me has to do with what Brettschneider calls the duty of “reflective revision,” under which “citizens internalize the reasons and values that underlie rights, and [then] transform their beliefs to make them more consistent with free and equal citizenship.” This is superficially similar to Rawls’s fairly attractive description of reflective equilibrium. But as I understand it, reflective equilibrium works in both directions. Brettschneider’s view of reflective revision, on the other hand, seems to be a one-way ratchet, in which the definition of free and equal citizenship remains fixed and only those views of citizens that conflict with it are subject to revision; indeed, he writes that “the ideal of free and equal citizenship is fixed.” Shouldn’t the concept of “free and equal citizenship” itself be subject to ongoing reflection and possible revision? If, as seems the case, many citizens hold differing views of what free and equal citizenship means and entails, or share a basic agreement on the concept but vary in their justifications for this concept, isn’t that relevant in showing the possible imperfection and revisability of the concept, scope, or implications of free and equal citizenship itself? In short, why shouldn’t the duty of reflective revision run in both directions?

5) Brettschneider argues that “there will be hard cases in deciding whether viewpoints conflict or are consistent with public ideals”–that there will be reasonable disagreement about public values and their meaning, and therefore that “the state should criticize beliefs, not in controversial cases of reasonable disagreement, but only when viewpoints clearly conflict with the ideal of free and equal citizenship.” I have two questions here. First, to what extent is he concerned that his ostensible supporters will take a far narrower view of what constitute reasonable disagreements, and thus be ready to extend his argument for “persuasive expression” by the state–including the denial of subsidies, tax-exempt status, and so on–to a much wider number of cases? Brettschneider is reluctant, for instance, to suggest that the Roman Catholic Church be treated as a hateful and discriminatory group, and thus denied tax-exempt status, despite its rejection of women for positions in the church hierarchy. But his allies may be more ready to take this and other steps. To repeat the point I made earlier, shouldn’t he be more worried about his friends than his enemies? Second, he writes just after the passage quoted above that “viewpoints hostile to the ideal of free and equal citizenship need not be explicit; they can also be thinly veiled.” Is that entirely consistent with his view that the state should be careful to avoid engaging in “persuasion” in areas of reasonable disagreement? Shouldn’t any ambiguities in this area be resolved against the state taking “persuasive” action?

6) Brettschneider insists that “[i]n the legitimate state, it is not enough for citizens in public forums to proclaim an allegiance to an ideal of equal citizenship, while in their personal or ‘private’ lives they hold beliefs that are inconsistent with this ideal.” He cites the example of a male school board member who votes for equal funding for boys’ and girls’ sports programs but forbids his own daughters from participating in sports because he believes that they should focus on “learning domestic tasks.” Such an official, he says, “has not internalized the value of equal citizenship” and should undergo reflective revision. Does this give too much emphasis to monism and not enough to pluralism? Imagine that a Muslim public official believes as a religious matter that women should dress modestly, and insists that her minor daughters wear a veil in public (and perhaps is veiled herself). Buts he also recognizes that there is religious and other disagreement on how women should dress, believes that those disagreements are protected by the Constitution, and further believes that even if she is right in her views on women’s dress, Muslims (and others) are ultimately better protected by a society that permits such matters to be a matter for family or individual choice. She therefore publicly proclaims that the state should not insist on women dressing in a particular way and that women should not be penalized for their choices in dress, and votes accordingly. Is it really true that she “has not internalized the value of equal citizenship?” Would insisting on this idea, and thus potentially discouraging citizens who hold a plurality of views from engaging in participation in public office, be good or bad for a diverse democratic society?

7) Brettschneider argues for a principle of “public relevance” that would treat many views and ways of life as “public” rather than “private.” I am reasonably sympathetic to this view, insofar as it suggests that the line between public and private is difficult to draw. But he argues that “the values of free and equal citizenship ‘do not go all the way down,'” and leave room for “positions on the good life that are not matters of fundamental justice.” The distinction seems to track conventional liberal bourgeois views on such matters; for instance, he rejects the argument of some feminists that “marriage is inherently problematic on egalitarian grounds,” and leaves the good liberal free to marry, “so long as the conditions in the family are consistent with the values of free and equal citizenship.” He adds that his approach “leave[s] open a place for non-public values, such as love and other emotions, in the family.” Isn’t this a little too easy and convenient? Love, in the abstract, sounds fine, but in practice it can have a great impact on equality, coercion, the balance of power in the family, and public conduct and capacities. Is love, on Brettschneider’s account, really a non-public value? Shouldn’t he at least be open to reflective revision on this and many other questions about what is truly public and what is truly non-public?

8 ) Brettschneider writes that his approach seeks to avoid “a truncated choice between two undesirable alternatives: the coercive policies of the Invasive State or the indifference to the ways public values are undermined in the Hateful Society.” But is indifference necessarily driving those liberal views that are less interventionist than Brettschneider’s approach? Might it have more to do, in many cases, with a reasonable concern for the limits of state competence and the dangers of abuse of state power?

9) Similarly, he writes that “[n]eutralists defend the U.S. Supreme Court’s current free speech jurisprudence, which protects hateful political viewpoints from coercive sanction but fails to criticize their discriminatory message.” Is that a fair description? I didn’t get the sense from, say, the R.A.V.  or Phelps cases that the Court was indifferent to the hateful speech there or refuse to criticize it; it just thought the dangers of permitting state regulation in this area were greater than the benefits of allowing its regulation, or of permitting viewpoint-specific regulation of speech in general.

10) In a passage that’s relevant to my eighth point above, Brettschneider writes that some “kinds of private behavior . . . should not be subject to democratic persuasion.” He writes that it was a matter of public relevance to question Clarence Thomas about sexual harassment during his confirmation hearings, but it would not be a matter of public relevance to ask whether a nominee to the Court “had multiple consenting sexual partners”; such questions, he says, “would violate the substance-based limit on democratic persuasion.” How about a nominee who deliberately cheated on his presumably non-consenting spouse? Would such questions be publicly relevant?

11) Can the state insist that private schools and homeschoolers teach particular messages and values? Brettschneider writes that “parental rights do not include the ability to raise children free from exposure to the ideas fundamental to liberal democracy,” and so the answer would seem to be yes. (Again, if I were he I would be concerned more about my friends than my opponents here, since some or many of them would likely take a broader view of what constitute “the ideas fundamental to liberal democracy” and would thus require a fairly thick and intrusive set of values to be taught.) In a pluralistic society, aren’t children exposed to these ideas anyway, no matter how much parents may want to insulate them?

12) I have a whole suite of questions about the core of Brettschneider’s policy arguments, which suggest that the state must engage in what he calls democratic persuasion, and that this includes the view that “the granting of non-profit status, like the granting of funds, should be conditioned on whether groups respect the ideal of freedom and equality for all citizens.” Although he says a good deal here, I would like to know much more about questions like these: What is “the state?” When does speech constitute “state” speech rather than private speech, and is there a difference between the speech of the “state” and the speech of individual public officials, in their personal or public capacity? (What about, for instance, campaign speech by a public official who is running for re-election?) What are the limits, if any, of state speech on subjects other than that of free and equal citizenship–for example, state speech that says “Buy American,” or “stay off of welfare,” or “the United States should not intervene to address human rights violations in foreign  countries?” Would he argue that public support for a screening of Birth of a Nation, which had both artistic merit and a hateful message, is not only worthy of opposition (as he writes) but should be positively disallowed? And more broadly, I worry about the intersection between his views and the problematic and growing area of government speech doctrine, although I’m not sure my intuitions are fully developed here, particularly because I think he leaves the question of government speech on everyday issues underdeveloped in his own book. I don’t know whether she shares my general worry, but I hope my fellow symposiast Helen Norton will address that issue.

13) Finally, and as a prelude to a future post on freedom of religion, let me add that I’m concerned by his statement, quoted above, that “the granting of non-profit status, like the granting of funds, should be conditioned on whether groups respect the ideal of freedom and equality for all citizens.” For one thing, as I’ve already noted, I think this is an area in which Brettschneider’s “allies” should be of greater concern to him than his opponents: even if Brettschneider himself is reasonably circumspect about such policies, drawing a narrower definition of what constitutes “equality” or “discrimination” and urging some caution in the use of state power in this area, surely many of his “friends” will take a broad and perhaps overweening view of the meaning of those terms, and thus subject a wide range of groups to the denial of funding or tax-exempt status. More broadly, it seems to me that we support such groups for a variety of reasons, and that, even though some groups may hold views that are in tension with his own “fixed” definition of free and equal citizenship, they provide a variety of important public goods, such as social services–not to mention the value to a pluralistic society of having a variety of vibrant intermediary institutions that hold diverse views. So there may be good reasons to “support” (in the shallow sense of offering tax-exempt status or equal access to funding for various purposes) such groups apart from particular reasons having to do with the ideal of free and equal citizenship. Moreover, it seems to me that there is a difference between refusing to support particular discriminatory actions by groups that actively discriminate, assuming we can agree on what that means, and refusing to support those groups in general, even in areas where they do not discriminate (imagine a church that opposes same-sex marriage but provides drug rehabilitation services to all comers), or refusing to support groups that do not share a “respect [for] the ideal of freedom and equality for all citizens” and say so but do not act on those views. I’m also not sure why Brettschneider thinks the extra step of denying funding or tax-exempt status is necessary. If democratic persuasion, in the sense of government speech urging free and equal citizenship, is reasonably successful at securing its goals, then why is the further step necessary? Given reasonable concerns about how the state, perhaps under the leadership of ostensible “friends” of Brettschneider’s views, might abuse its discretion in this area, why not rely on democratically persuasive government speech alone, rather than also cut off equal access to the spigot of state funds or tax support? Why not at least wait and see for a generation or two before taking the more drastic step?

This is a long and messy list, but I hope it provides some interesting points for Brettschneider to respond to. I hope to have another post up this week focusing more closely on his treatment of religious freedom.

 

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