Author: Corey Brettschneider


Torts, Bans, and Democratic Persuasion: A Reply to West, Fleming, and McClain (with help from Norton)

At the start of the symposium on When the State Speaks, Paul Horwitz praised much of the book’s argument and its conclusions, but he worried that public officials might push the state’s expressive powers in problematic directions. This sort of worry led him and Steve Calabresi to argue that the book is too strong in its conception of democratic persuasion. For example, they raise concerns about my argument that the tax privileges of 501(c)3 status should be extended only to groups that serve the public good.

I argue that the law already has a public good requirement for receiving tax privileges, but that the definition of “public good” is often vague and potentially arbitrary. The book defines the public good requirement in a more precise and consistent way that would be less open to abuse than the current standard. To serve the public good, groups should accept the ideal of freedom and equality for all citizens. A group that supports hatred of minorities and the curtailment of their rights should not receive public support in the form of tax privileges.

In this post I respond to scholars who are pushing me in the opposite direction from Paul and Steve. Robin West, James Fleming, and Linda McClain all agree with me that the state should promote an ideal of free and equal citizenship. Their arguments help to motivate a strong conception of democratic persuasion, in response to Paul’s and Steven’s concerns. However, West, Fleming, and McClain would allow types of democratic persuasion that are more activist than the book’s. Would their proposals risk violating free speech rights, and would they be consistent with my approach? Read More


Value Democracy and Non-Profit Status (State Speaks Symposium): Response to Horwitz and Calabresi

The commentators for this symposium fall along two sides. One group, which is most sensitive to the risks of the “Invasive State,” argues that my account of value democracy offers too aggressive a role for the government in pursuing democratic persuasion. Horwitz and Calabresi argue that my account of state spending and nonprofit status, though I carefully limited it, might be abused by state officials. The other group represented by Fleming, McClain and West, take the opposite criticism. They claim that democratic persuasion is too weak to combat hate speech and the dangers of the “Hateful Society.” Helen Norton is the most sympathetic to my view as striking the right balance in the state’s pursuit of democratic persuasion. I will focus on the first side here and the second in a future post. Read More


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 ( 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.


Do Civic Virtue and Responsibility Go Beyond Political Liberalism?

Thanks to James Fleming and Linda McClain for their response to my post. The exchange has helped to elucidate the many fine points of their book. I appreciate too the various ways in which our projects overlap and thank them for continuing to bring them out.

I certainly agree that Fleming and McClain endorse a political liberal ideal of free and equal citizenship and that they often rely on an analysis that invokes this ideal in analyzing cases. They want to support free and equal citizenship. The most crucial concern, however, from my post is that the promotion of virtue may go beyond supporting the political liberal values of free and equal citizenship. Do Fleming and McClain mean to define virtue in that is merely synonymous with the political liberal ideal of free and equal citizenship, or is the concept of virtue distinct? Although they say that “we will not attempt here to persuade him about why it is possible to promote civic virtue without sliding into promoting moral virtues simpliciter and comprehensive visions of the good life,” I think this is the central challenge for their book, in that the issue of promoting virtue highlights one of their unique and important contributions to political theory. Read More


Democratic Values v. Virtues: Brettschneider on Ordered Liberty

How can a liberal democracy promote its central values, such as autonomy and non-discrimination, at the same time that it protects basic rights, such as free speech? One common view is that these two goals are incompatible. According to this view, free speech rights commit liberal democracy to “neutralism,” which prohibits favoring any values. Under a neutralist approach, liberal democracy cannot promote its core values of autonomy and non-discrimination. It has no role in encouraging responsibility and virtue among its citizens.

James Fleming and Linda McClain offer a powerful challenge to the neutralist view. They propose an account of “autonomy as responsibility” that reconciles the two goals of protecting rights and promoting a set of public values and virtues. Liberal democracy upholds the rights of citizens out of respect for their autonomy, or their ability to use their reason freely to choose their own ends. For citizens to be able to make decisions as autonomous agents, they must have the right to choose their religion, associations, and political positions. But it is also important in an autonomy respecting regime that the government cultivate and encourage good decision-making. It would be pointless to respect autonomy if no actual people exercised their autonomy well. The government thus has an obligation to promote the capacity of citizens to make better and more responsible decisions. The government, including the Supreme Court, should pursue the twin aims of protecting rights and promoting individual autonomy and responsibility. This view differs from perfectionist theories, which advance particular comprehensive doctrines, and neutralist accounts, which refuse to promote values altogether. Read More