Author: Steven Calabresi


When the State Speaks: the Sentiment of the Golden Mean and Practical Disagreements

Corey’s book is a splendid effort to address an extremely difficult and important problem.  How should a liberal society approach the topic of hate speech.  Corey posits two dystopias that we need to avoid.  The first is the dystopia of the Invasive States which is so eager to militantly protect democracy that it regularly invades people’s rights.  The second is the dystopia of the Hateful Society which is so tolerant that it will not even intervene to defend its core norm of tolerance.   Both of these dystopias have existed in the last century:  The United States verged on being an Invasive State during the red scares and McCarthy period, while Weimar Germany became a Hateful Society.

The core instinct of Corey’s book is that we need to find a golden mean that lies somewhere between the two dystopias.  I agree with this sentiment entirely, and I also agree with Corey that we should not criminally punish hate speech and that we should not expect that when the government speaks that its speech must be viewpoint neutral.  We celebrate great men and women and events in our history for value laden reasons and that is precisely as it should be.   Public universities and schools could not even function if they did not chose to praise some viewpoints and criticize others.  That is basically what education is all about.  The Corporation for Public Broadcasting, PBS, and National Public Radio are examples of non-government neutrality as to viewpoints.  Obviously, these entities are all of value and should be retained.

I do disagree with Corey to some extent on the ease with which he would revoke 501(c)(3) status from groups that he thinks are engaged in hate speech.  My disagreement is more practical than normative.  I do not think hate speech groups deserve a 501(c)(3) subsidy, but I do fear that once government officials get in the business of evaluating which 501(c)(3)’s ought to have their tax exemption yanked a very rabid partisanship will set in which will be destructive of the goals of free and equal citizenship that Corey and I favor.  I think the federal government was within its rights under current law and that it acted correctly in yanking the tax exemption of Bob Jones University.  There has never been a religion in the United States under which interracial dating was forbidden as a matter of wide spread religious belief.  Bob Jones’ claim to a churches’ tax exempt statutes was correctly denied.  I would not conclude from this as Corey does that the Boy Scouts tax exemption should be withdrawn because of their refusal to recognize gay rights.  I think the Boy Scouts can be and should be publicly criticized for this but I would ostracize the Scouts rather than withdrawing their tax deduction.  Many political conservatives would leap at the chance  to eliminate 501(c)(3) status for liberal ivy league schools if they thought this behavior was tolerable.  We should NOT go down that road.  America’s huge not for profit corporate sector is one of the many things that makes us so much stronger than Europe and Japan.  501(c)(3)’s are what Edmund Burke called mediating institutions between the power of the state and the power of government.  They are an invaluable asset and should be left alone.

I agree with Corey that free and equal citizenship is the proper goal of the liberal state, but I would ban laws or executive actions that deprive people  of life, liberty, or property on the basis of religion as well as on the basis of race and gender.  Most people are born into their parents’ religion and this may be an immutable characteristic.  Secular and Christian people of Jewish dissent were stunned to find that Hitler thought them to be Jewish by blood and accordingly sent them to concentration camps.  Muslims today are born into their faith and may face charges of apostasy if they try to convert.

Finally, I would note that the concept of free and equal citizenship does not apply to longtime resident aliens whether legal or illegal.  This would seem to be a flaw.