Coercion and Persuasion and Speech: A Comment on Corey Brettschneider’s book, When the State Speaks, What Should it Say?
Corey Brettschneider’s book When the State Speaks confronts a core dilemma for liberalism and indeed for liberal states: how to respond to the existence of hateful speech, utterances, practices and the groups that sponsor them and promote them, in a way that checks the damage the hateful speech does to underlying liberal principles of free and equal citizenship, while at the same time respecting the rights as well as the free and equal citizenship of the speaker. Corey rejects both of what he considers to be the two polar responses that pervade state responses, both here and elsewhere: the civil libertarian (or “neutralist”) claim that private speech is just that – private – and therefore of no concern or relevance to public values, public deliberation or public law, and that accordingly the state and larger community simply has no interest in it and should refrain from sanctioning or criminalizing it in any way, on one hand, and on the other, that of the “militant egalitarian” or some feminists, who argue that private hateful speech has very harmful and fully intended consequences and should be banned or censored in some meaningful way to stop its noxious spread. Corey suggests that both these views veer toward one or the other of two dystopian visions of the relation of the state to its citizens: the “militant egalitarian’s” view, which urges greater criminalization of hate speech, risks what he calls the “Invasive State,” meaning a state overly involved in our private lives, the traditional bogeyman of civil libertarians everywhere, while the liberal or neutralist view, according to which the state is and should be fundamentally unconcerned with the content of private speech, no matter how hateful or indeed how consequentially harmful, risks what he calls the “hateful Society,” a dystopia in which all rights and liberties are vigorously protected, but hate runs like an open sewer, undercutting the reasons we have rights in the first place, and with the consequence that some groups of citizens – women, racial minorities, gay and lesbian citizens – are frequently and even routinely subjected to hateful practices and utterances, including within the privatized nuclear family, and are left utterly unequipped for free and equal citizenship. The question he raises and tries to answer in the book is how we can avoid both the Hateful Society, in which rights are protected but hate reigns supreme in the private sector, with inequality rampant and a lesser regard for the equality of us all as its clear result, and the Invasive State, in which hate is checked, but the state is a far too intrusive, and our private lives over-regulated?
Corey’s provocative and hopeful suggestion is to introduce a third possibility, fully captured by his provocative introduction of the “Persuasive State.” The persuasive state refrains from coercion, and thus avoids the pitfall of the invasive state, but on the other hand does not deny the relevance to public values of privately held and promulgated hateful beliefs, including those promulgated within the family. The State’s response to the holders of those beliefs, Corey believes, should be to seek to persuade those citizens to transform, modify or drop their hateful beliefs, to whatever extent those beliefs conflict with public democratic values, notably, values of free and equal citizenship. The state should in effect counter hateful speech with argument – argument that those beliefs undercut the very values of free and equal citizenship that undergird the rights enjoyed by the holders of those beliefs themselves. Perhaps those with hateful views will be persuaded, and will drop the views. But even if not, other citizens will hear the dialogue, with the result being that the state will have been respectful of the equal rights of all, and will not have been complicit in the spread of beliefs that fundamentally undercut democracy.
I’m largely sympathetic to this project. I think it is entirely right for us to recognize the relevance of private hateful beliefs to public values such as equality and freedom, equal respect and due regard, and that it is entirely right as well for us to shift our focus, somewhat, from our worries over the overuse of state’s coercive role to the possible good it can do when it acts in its persuasive capacity. The state does after all speak constantly. It is almost never quiet. It speaks when it passes laws, it speaks when it justifies them in judicial decisions, it speaks when it promulgates administrative regulations and when it adjudicates those regulations, it speaks when it imposes sanctions in civil cases, and it speaks when it imprisons and fines and executes people. It can use its rhetorical powers and force to promote liberal values of equality and freedom, and it can promote equal respect, due regard, and human dignity when it does so. It already does this, obviously, but there’s no reason on earth that it shouldn’t be urged to do so more, and to do so more reflectively and effectively. And, there’s no reason it shouldn’t do so in the specific context of hate speech and pornography. This is what I take Corey to be doing, and I support the effort. I will raise just a few questions regarding the overall project which might suggest friendly amendments.
The first is a worry about the way he has characterized the Persuasive State as an alternative to his two dystopias, the invasive state on the one hand and the hateful society on the other. Bluntly, it seems to me that in addition to the two dystopias that drive Corey’s project — the Invasive State and the Hateful Society — he might have added a third: the Hypocritical State. The Hypocritical State is the dystopia to which Corey’s proffered utopian alternative – the Persuasive State – possibly gives rise, and in my view he should have worried about that possibility, at least a little. But he doesn’t. Rather, Corey’s Persuasive State is through and through utopian. It utters and holds and apparently deeply believes liberal and democratic values, particularly the value of equal and free citizenship. The only vice to which the Persuasive State is prone, in Corey’s treatment of it, is that of overreaching with its coercive arm, and it does so only for the most benign of reasons: to try to stem the tide of hateful speech and its consequences.
But surely the virtue of the Persuasive State is overdrawn, at least in our national conversation. Sometimes the State’s egalitarian and freedom respecting utterances are the cover for views that are viciously inegalitarian and disrespectful – even hateful. Sometimes, in other words, the Persuasive State becomes the legitimating state – its equality and freedom promoting rhetoric is a cover for its deeply illiberal impulses. We need look no further in our own society than the libertarian and thoroughly democratic sounding justifications various state actors – Supreme Court Justices, ninth grade civics teachers, pro bono lawyers from prestigious private law firms, judicial opinions by the bucketload, and academic lawyers in the field – proffer, when discussing the substance of our criminal law and procedure, and the reality of our utterly dysfunctional criminal justice system, that incarcerates more citizens per capita than the most ghastly illiberal and totalitarian dictatorships on the planet, does so for the flimsiest of reasons, with grotesquely disproportionate impacts on black and brown citizens, and in appallingly brutal conditions of confinement. The same “state” that speaks of dignity, equality and respect when justifying criminal law, imposes penalties for the possession of crack cocaine still, twenty years later, at one hundred times the harshness as possession of powder cocaine, still imposes life sentences on citizens for trivial and victimless crimes, if it is the so-called third strike, still executes prisoners in the face of proffered and unexamined evidence of innocence and does so in a way that disproportionately kills African American citizens, and of course still targets citizens abroad for execution on hidden evidence of complicity with terror. The Hypocritical State legitimates all of this mayhem and random violence it inflicts with high flying language justifying its sanctions in terms completely congenial to liberal rights; indeed often in terms suggesting that the state violence is mandated by those liberal values. It employs the rhetorical mechanisms of persuasion, in other words, so as to impose coercively its mandates in ways that express its utter contempt for the very democratic values it self righteously and loudly and repeatedly extols.
The extraordinary gap between the persausaive state and the executing state may be the largest in the criminal justice field but it by no means resides solely there. It seems to me that those of us attracted to the idea of the Persuasive State, and its potential for good, need to worry about this legitimating function of the Persuasive State, and to try to find ways to counter its influence.
My remaining objections all regard the myriad purposes served in Corey’s book by the line drawn between the persuasive and the coercive state, or the state when it is acting in its “expressive” mode, and when it is acting in its coercive mode. This distinction is a little too black and white, and, I’ll suggest below, it might even be unnecessary to his project. First, the state does many things, it doesn’t just coerce or persuade. It also regulates, sanctions, it coordinates, it employs soft law, administers a system of tort remedies for so that citizens can pursue, through monetary damages, some measure of corrective justice without turning to the punitive arm of the state. It isn’t clear in Corey’s treatment where some of these actions would lie; whether they constitute persuasion or coercion. For example, the failed anti-pornography ordinances of the nineteen eighties pursued by Catherine MacKinnon and Andrea Dworkin were specifically designed so as not to employ the punitive arm of the state: they were civil actions, creating a civil remedy, contemplating the imposition of monetary damages to be paid to the victims of pornography by purveyors. Do they, then, constitute exemplars of coercion or persuasion? It just isn’t clear; it seems to me the state’s role in these actions was persuasive, not coercive, but I suspect that Corey would disagree. But if so this needs a defense. Is the state’s role in facilitating private actions for the harms done by hate speech or pornography so violative of the rights of purveyors to justify a ban on even such civil actions? This goes quite a bit further than what seems to be argued in the text which is that criminal sanctions on hate speech would do so.
Yet, a recognition of the violations of rights arguably occasioned by criminalizing various forms of hate speech by no means implies that a state which permits civil actions for those harms, followed by at most the imposition of monetary damages on victims by perpetrators also violates those rights. Rather, it looks like it requires only that the speakers internalize the harms occasioned by that speech, when the speech violates the civil rights – rights to dignity, to noninjury, to be free of assault, to move freely in society – of others, and that the state provide a forum – a legal action – such that those civil rights can be vindicated in the form of civil actions. It seems to me that the state is performing a persuasive, and not a coercive function, when it acts as such. But if there is a claim to be made to the contrary, it isn’t spelt out in this book.
Another and perhaps broader way to put the point is that coercion seems underspecificed in Corey’s book. Even when the state arguably coerces, it does so in a myriad of ways and for a wide range of reasons. Someitmes it executes, imprisons, or imposes fines, and does so for the express purpose of punishing. Sometimes it imposes regulatory sanctions, not so as to punish, but so as to promote efficiency or coordination aims. Sometimes it facilitates civil sanctions so as to allow citizens recourse to actions for wrongs occasioned upon them, and does so because a robust conception of justice requires such private actions. Sometimes it imposes restraining orders to prohibit actions by private parties until some specified event or date has come to pass. Because of that underspecificity, the insistence on the unjustifiability of coercion-in-the-abstract with respect to possible state responses to hate speech seems oddly undefended. The state acts “coercively” with respect to a wide range of types of harms, crimes, costs, or torts that involve nothing but acts of speech. Thus the state either criminalizes or defines as tortious various types of libel, slander, fraud, mail fraud, blackmail, perjury, both criminal and civil assault, stalking, group defamation, insider trading, intentional infliction of emotional distress, and even breaches of contract, or breaches of copyright, patent and trademark rights. All of these crimes or torts or contract violations are occasioned by speech acts, and they all give rise to either criminal or civil sanctions. The speech in all of these cases, like hate speech, does things, it does not simply embody certain beliefs. And the state’s response likewise, does something in particular, as well as persuade and arguably coerce: the state imposes a fine, a sanction, a penalty, a tax, a damage award, a punitive damages award, or a restraining order. For the most part, when it does so, it is facilitating a private remedy designed to require the actor to rectify the wrongs done by his actions on others, and to internalize those costs. The same would be true of a civil action for harms occasioned by hate speech or pornography. Yet, only with respect to such harmful speech, are liberals, and Corey in this book inclined to close the courthouse door, and preclude not only criminal responses by the state, but also civil responses by harmed citizens. Why? Why is it only with respect to hate speech, that the state must not respond by permitting civil recourse? Why it is only these harms that inspire worries that the state that does so in acting coercively,r ather than persuasively? What is so peculiar about hate speech,a nd the harms it occasions, out of all of these crimes, torts and regulatory offenses — libel, defamation, group libel, slander, blackmail, fraud, mail fraud, criminal assault, civil assault, emotional infliction of distress, breach of contract, trademark, copyright, perjury, plagiarism and so on – all of which are constituted by nothing but speech, that gives rise to the impulse to shield them with protection against a coercive state response?
So, another way to put this concern, is that it isn’t clear where civil actions, as opposed to criminal santions, for hate speech and pornography fall, on Corey’s schematic divide of the state functions into coercive and persuasive. If, as I suspect, he would regard those actions as coercive, then it isn’t clear that he’s presented a compelling argument, or indeed any argument for doing so.
Third: Corey’s treatment of the state’s persuasive role when it is acting coercively is somewhat underdeveloped, at least in the context of education. I agree completely with Corey’s conclusions in this now troubled area of constitutional law and political theory: in my view, the state is fully justified in coercing either public or private education of children, through truancy laws and otherwise, and would be justified were it to do so, in requiring that schools employ a curriculum that introduces all students to the justification for liberal rights of equality and freedom. The state’s persuasive role in this environment, I think, should trump the familial privacy in which illiberal parents who now wish to shield their children from exposure to these ideas, and therefore from public or pirvate education, now rest their constitutional argument for doing so. To precisely the degree that states now allow unsupervised and unregulated homeschooling, such “homeschooled” children are being deprived on their right to be educated in a way that at least exposes them to the democratic values of the liberal state, and the state is being released of its persuasive opportunity, but also of its obligation to provide such an education. Many such children are also being deprived of rights to education more broadly as well, to whatever degree the home education neglects broader educational goals.
There is no question, however, that were we to pull back on unregulated homeschooling, and return to the educational regime of the pre-1980s, requiring children’s attendance in either public schools or regulated private schools, such an act would be coercive. It would undercut the privacy rights of parents, and perhaps their rights to the unfettered expression of their illiberal views in the context of childrearing. I am heartened that Corey expresses in his book his disagreement with the Supreme Court cases and with the general argument that bolsters the claim, accepted now by a number of courts, that those privacy rights of the parents should trump both the rights of the children to high quality education and the duty of the state to provide it. I would urge, though, that the question requires considerably greater elaboration than it receives here, and that should it receive such, it may imply a more fine grained approach to the various rights and harms of hate speech more generally.
The last of these sorts of worries over the role of coercion is again a definitional point, but with any number of practical consequences: to reverse Cover’s insight from decades ago – that all state speech takes place on a field of violence – it is also the case that all coercive state actions, from executions to the impositions of regulatory fines, civil sanctions, or parking tickets or taxes, take place within a field of words. There is often coercion behind state attempts to be persuasive – think of the interactions between the pregnant woman seeking an abortion and the abortion provider, required to educate the woman with respect to various attributes of the fetal life inside her – and there are often, I would think always, persuasion behind the state’s attempts to coerce. The efficacy of persuasive action requires an audience and the state sometimes attempts to coerce attendance – think again of public education. Is it always wrong to do so? If not, this suggests a continuum rather than a bright line, I would think, between acts of the state that are primarily persuasive, but accompanied by some measure of coercion, even if just coerced attendance, and acts of coercion accompanied by some measure of persuasion. Sometimes, the persuasion that accompanies coercive state action is just obnoxious and grating and we’d be better off without it – just tell me what it will cost me, don’t lecture me, when you’re imposing a traffic fine. Sometimes, the coercion that might accompany persuasive action, however, is justified – think of the attachment of the salary that accompanies the imposition of a civil or regulatory fine, or as Corey argues in some detail, the withdrawal of a tax exemption for religious views that are hateful. The tax exemption, however, is not an anomaly, it is, rather, I would think, emblematic of a pervasive dynamic: a persuasive state action accompanied by some measure of coercion. That dynamic, I think, requires more general treatment.
A third cluster of concerns revolves around Corey’s presentation of liberalism, and liberal values. Why are we focused so exclusively on these liberal values, rather than values such as equality of opportunity, or a fair or just distribution of resources? Surely much of Corey’s argument could be generalized to the state’s obligation to use its persuasive authority to make the case for robust affirmative action, on behalf of both African americans and poor people, or for a fair tax burden, a decent health care system, and so on. Here as well, as is the case with respect to hate speech, all of us, including state actors are divided, and the law, including the constitutional law, is unclear. But again this is also true of hate speech, and again, there are fundamental liberal values involved. Much of the dynamic Corey describes – of the back and forth beween the dystopic images of an overly invasive state on the one hand or a hateful society on the other – also is true here: those concerned about the state’s power tend to favor letting market outcomes lie, even where that results in massive inequalities in wealth, and those concerned about the hateful society, as it is manifested in the existence of a massive class of subordinated persons with little opportunities for upward mobility, tend to favor a more robust state role in redistribution. A shift in focus in this context as well away from the state’s coercive role and toward the state’s persuasive role in these contexts might yield benefits comparable to the shift in focus that Corey advocates and accomplishes, in the context of hate speech.
Were we to try this, however, we’d face some of the problems outlined above. In addition to the invasive state and hateful society dystopias, we would also have to contend with the inegalitarian state, and the illiberal state, as well as, again, the hypocritical state. We would also have to contend with the various ways in which the state acts in ways that impact distributive justice concerns, but where the action is neither cleanly coercive nor cleanly persuasive, but some combination of both. Here, the weakness of the coercive v persusive understanding of the state would come into sharp relief: the main way that the state effects distributive justice is through its tax and spending authority, as well as its law of inheritance, contract, and property rights. In all of these areas its acts of coercion are so entertwined with its acts of persuasion that it will be hard to disentangle them – suggesting, I believe, the limits of the distinction. It might be better in this context, as well as in the context of hate speech, to look in a more granular way at the specific acts the state has taken, without categorizing them as coercive or persuasive, ask whether the state is saying the right things, when it speaks, as the wonderful title of Corey’s book suggests.