When the State Speaks, What Should It Say?

How Democracies Can Protect Expression and Promote Equality

Corey Brettschneider

• Publisher: Princeton University Press
• Year: 2012
• ISBN:
  9781400842377
• Topic: Philosophy
• Subtopic: Political Philosophy

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, political theorist Corey Brettschneider proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints.
Distinguishing between two kinds of state action--expressive and coercive--Brettschneider contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. Brettschneider extends this analysis from freedom of expression to the freedoms of religion and association, and he shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

CHAPTER ONE

The Principle of Public Relevance
and Democratic Persuasion

VALUE DEMOCRACY’S TWO GUIDING IDEAS

I. INTRODUCTION

VALUE DEMOCRACY SEEKS TO AVOID the dystopias of both the Invasive State and the Hateful Society. Unlike the Invasive State, value democracy respects rights, and unlike the Hateful Society, it criticizes inegalitarian viewpoints that oppose the values central to democratic legitimacy. Since value democracy criticizes hateful or discriminatory viewpoints, it can answer the problem of complicity and the concern about regime stability raised by the paradox of rights. Value democracy aims to respond to the paradox of rights by demonstrating that the democratic state can give voice to its own values without abandoning its core commitments to freedom of speech, conscience, and religion for all citizens.

In this chapter, I introduce several concepts that will serve as the building blocks for the theory of value democracy elaborated in the rest of the book. I begin section II of this chapter by introducing a principle of public relevance. According to this principle, beliefs and practices that conflict with the ideal of free and equal citizenship can be of public concern, and should be changed to make them compatible with democratic values. The principle of public relevance applies even when beliefs and practices are protected by rights against state coercion. Under the principle of public relevance, families and civil society organizations are not cordoned off as “private spaces” where discrimination can spread, free from public criticism. I emphasize, however, that the principle of public relevance is limited to beliefs and practices that oppose democratic values; it does not construe all areas of life as political.

I go on in section III to elaborate the meaning of the democratic ideal of free and equal citizenship. I define it in political terms, and distinguish it from more comprehensive notions of equality. In section IV I explain how the individual members of a democratic society can fulfill the principle of public relevance. I present several arguments for why citizens should adopt the values of free and equal citizenship as part of their beliefs. I also introduce the notion of reflective revision as a way of elaborating how citizens might evaluate and change their views.

In section V, I introduce the notion of democratic persuasion to describe how the state can promote democratic values. Value democracy accepts that the state’s coercive power might be appropriate for protecting rights in certain cases, such as using the police to stop violence or enforcing the Civil Rights Act to uphold non-discrimination in the workplace. However, an important puzzle arises when citizens use their rights of free expression to advocate discriminatory beliefs. For example, citizens might exercise their freedom of expression to advocate denying equality for women or minorities. When confronted with viewpoints that are inegalitarian but protected by rights, value democracy calls for what I refer to as democratic persuasion. I will suggest that the state rightly engages in democratic persuasion when it exercises its expressive capacity to promote the values of free and equal citizenship. Democratic persuasion helps the state to avoid the charge that its protection of free expression for hateful or discriminatory viewpoints makes it complicit in them. The state avoids complicity by using democratic persuasion to criticize these viewpoints and to clarify that it does not condone them. Democratic persuasion also serves to answer concerns from militant democrats about the stability of liberal democracy. By engaging in democratic persuasion, the state can defend itself against the viewpoints that are inimical to its most basic values.

In sum, this chapter shows that value democracy can address the problems of the Hateful Society without straying into the dystopia of the Invasive State. It does so by recognizing that some beliefs, which are protected by rights, are publicly relevant when they conflict with the values of free and equal citizenship. To counter hateful viewpoints, value democracy offers two non-coercive ways of promoting democratic values. The first is reflective revision by citizens, and the second is democratic persuasion by the state. After introducing the ideas of public relevance, free and equal citizenship, reflective revision, and democratic persuasion in this chapter, subsequent chapters build on the discussion to develop and defend more fully these key ideas, which are central to my account of value democracy.

II. THE PRINCIPLE OF PUBLIC RELEVANCE: CHALLENGING BELIEFS THAT ARE HOSTILE TO FREE AND EQUAL CITIZENSHIP

The dominant metaphor for understanding the divide between the public and private spheres in liberal theory has been a spatial one. It is common to speak of the family and civil society as “private spaces” protected by liberal rights. The metaphor suggests a private haven, free from the concerns and interventions of political life in the “public square.” But even in regard to rights protections, the spatial metaphor is misleading; in many instances, the metaphor fails to capture the right understanding of the public and the private in American law. The metaphor overlooks how privacy rights can potentially be overridden, even within the family and civil society. For instance, a right of sexual privacy may guarantee a certain amount of freedom from state intervention within relationships, but it does not protect against conviction for sexual crimes such as rape. Although this was not always the case, “marital rape” is now rightly classified as a crime.

But even short of extreme instances like marital rape in which rights are violated, the activities protected by privacy rights can still be, in an important sense, relevant to our identities as political actors. Consider a family that resembles the Hateful Society by raising its female children to feel inferior to male children. Provided there is no abuse, this form of childrearing does not necessarily justify the state’s coercive intervention, such as removing the children from the home. However, raising young women to feel inferior is still relevant to the public values of free and equal citizenship. It is important, therefore, to distinguish a category of “public relevance” even within spaces protected by privacy rights. What makes certain beliefs and practices publicly relevant is that they conflict with our public status as free and equal citizens. According to the principle of public relevance, these beliefs and practices are of public concern, and ideally should be changed to make them consistent with the ideal of free and equal citizenship. The beliefs and practices can be publicly relevant, even when they are protected by rights against coercion. The public relevance of these discriminatory beliefs and practices suggests that citizens and the state should find a way to respond to them.

Actions that undermine public values can occur not only within the family, but within other “spaces” like the workplace or civil society associations that are often considered to be private. The ideal of free and equal citizenship is not geographically limited. Consider the case of “bad civil society” hate groups that stop short of committing crimes but express an ideology that opposes the idea of equality.¹ Such groups are justly protected by basic rights against coercion. These rights protect groups from being compelled to disclose their membership lists, and they entitle groups to assemble at sites not owned or funded by the state.² Although hate groups are protected by basic rights, their views clearly are publicly relevant in that they deeply oppose the values of free and equal citizenship. Indeed, hate groups are defined by their clear and explicit opposition to these values.

Just as rights of privacy and free association protect civil society groups, these rights protect the integrity of the home from arbitrary invasion and prevent the kinds of excesses that characterize the Invasive State. We should not be compelled to disclose our actions within the marital bedroom, for instance, or within any room so long as no rights are violated.³ The state should not place surveillance equipment in our living rooms to monitor our speech. In this sense, privacy rights do protect some actual spaces from state-sanctioned invasion. However, in my view, it is wrong to interpret the inviolability of these “spaces” as a metaphor for the irrelevance of public values within the family and civil society. Although the family and civil society should be protected by rights against coercion, their beliefs and practices should be open to criticism if they are hostile to free and equal citizenship.

My rejection of the spatial metaphor is sure to raise the specter of the Invasive State for some liberals, who will no doubt fear that I have abandoned what should be a neutral stance toward private spaces. But, as I will argue in chapter 3, such a concern badly misunderstands neutrality. While liberal rights should be neutral in the sense that they protect all citizens regardless of the viewpoints they hold and express, the public values that underlie those rights cannot be neutral. They must speak to why we should respect rights. Such a normative account cannot itself be value neutral; it must articulate the values that give us a reason to uphold rights of privacy in the first place. But it follows that these values, which are public in the sense that they provide the foundation for political rights, can be opposed by beliefs that are protected by rights. This opposition is publicly relevant, because it challenges the foundations of rights.

On my view, privacy rights are based on respect for all citizens as free and equal. Thus, the democratic state’s understanding of privacy must itself be justified, so that privacy is consistent with the underlying value of respect for free and equal citizenship. This democratic value justifies protecting privacy in the first place. Proponents of the spatial metaphor, however, construe privacy as drawing spaces that are immune from justification or criticism, even when illiberal beliefs are spreading in civil society or the family. If we pull apart this conception, we see that the spatial metaphor begins to break down. The very reasons that justify privacy might be challenged and even undermined by illiberal behaviors and beliefs in “private” spaces. At times, these behaviors might violate rights and call for a coercive response. For example, the state would be justified in coercively stopping marital rape. At other times, behaviors might not violate rights, but they may oppose the values of free and equal citizenship, which comprise the reasons for rights. The spatial metaphor is thus flawed in two senses. First, no actual space can be always free of government coercion because rights violations, such as rape, potentially can happen everywhere and should be stopped by state action. Second, even when no right is violated and individuals are protected by rights of free expression and privacy, viewpoints might be expressed that oppose the values of free and equal citizenship. Public values are relevant here in the sense that they are in need of a defense, not a coercive response.

For instance, I will argue that raising children as racists does not justify coercive intervention within the family or the forcible removal of the child from the home, but it is publicly relevant and may call for a persuasive response by fellow citizens and the state. It is central to value democracy that all citizens retain rights against the state spying on our conversations or coercively discovering our beliefs. But at times, these views come to light without unjustifiable coercive interventions. For instance, if a young child came to school dressed in Nazi or Klan attire, this might reveal something about his or her racist upbringing. The parents in these cases have flouted their duty to endorse and support the democratic ideal. Even protected practices and beliefs, if they are discriminatory, should be criticized and, if hateful enough, condemned by the state in its persuasive capacity. Beliefs and actions within the family and civil society can still be publicly relevant and subject to criticism, because they can impact the norms of free and equal citizenship. The spatial metaphor is flawed and should be rejected, since it wrongly regards all of the actions that take place within the realm of the family or other private spheres as immune from public justification and the concerns of equal citizenship. As an alternative, I present a conception of publicly justifiable privacy, which regards practices and beliefs in civil society and the family as publicly relevant when they conflict with the values of free and equal citizenship.

Public relevance and the ideal of publicly justifiable privacy, however, only potentially justify a state response in the form of what I call “democratic persuasion.” I will argue that one fundamental implication of these ideals concerns the obligations, not only of the state, but more broadly of citizens. Moreover, democratic persuasion is limited by a robust set of rights to be free from coercive interventions. This freedom includes rights against the state spying or forcibly obtaining information about our lives in the family and civil society.

A publicly justifiable conception of privacy seeks to avoid both the indifference of the Hateful Society and the excessive coercion of the Invasive State in response to hate groups and individuals who oppose an ideal of public equality. Consider a recent case from Canada, which I discuss at length in the next chapter. Canadian authorities removed a child from a home after they discovered that she was being taught racist views by her mother. Although removal in instances of abuse would not violate the family’s privacy rights, it would be a mistake to remove a child solely because the parents taught abhorrent beliefs. For instance, removal might threaten the child’s long-term well-being. It would also be a coercive sanction that would violate the parent’s right to freedom of expression and conscience. If we are free to express our ideas anywhere, arguably we should be free to express them in the home. Coercion would therefore raise the threat of the Invasive State. Yet, while removal of the children would be an excessive response to hateful viewpoints when there is no child abuse, we should not settle for claiming that such beliefs are simply private and therefore must be ignored. They inculcate in the next generation a set of values that violates the very principles of a legitimate society. In particular, hateful viewpoints directly challenge what I have called the core values of democracy, especially the idea that all subject to law should be treated as being entitled to equal status. The spatial metaphor’s assumption that the family is a private space cordoned off from public evaluation ignores how, as an institution for education, the family can pass on viewpoints that oppose public values, thus raising the danger of the Hateful Society.

The previous example suggests the limits of the spatial metaphor as a paradigm for thinking about public relevance, and it demonstrates the need for a more nuanced normative approach. To replace the spatial metaphor, I propose a conception of publicly justifiable privacy. Whereas the spatial metaphor cordons off some areas of life, such as the family and civil society, from any kind of public concern or criticism, the notion of publicly justifiable privacy appeals to the principle of public relevance in drawing the distinction between public and private. The principle of public relevance claims that personal beliefs and actions should be in accordance with public values to the extent that private life affects the ability of citizens to function in society and to see others as free and equal citizens. According to this principle, private beliefs, communications, and actions are not immune to public evaluation. Rather, the family and civil society are potentially subject to public evaluation and criticism when they oppose the values of free and equal citizenship in a manner that comes to light publicly without violating the rights of these groups.

Practices within the family or civil society that violate democratic values do not always call for a coercive response. Sometimes publicly relevant practices and beliefs should be protected by rights. In these instances, the principle of public relevance can be fulfilled in two ways. First, citizens ideally would engage in what I call reflective revision. When they engage in reflective revision, citizens internalize the reasons and values that underlie rights, and they transform their beliefs to make them consistent with free and equal citizenship. I describe reflective revision in more detail in section IV of this chapter. But when citizens do not engage in reflective revision on their own, I suggest that the principle of public relevance should be fulfilled in a second way, which I call democratic persuasion. The state uses democratic persuasion when it exercises its expressive capacity to criticize racist and other discriminatory beliefs in the family and civil society. This criticism is intended to protect free and equal citizenship, and to prompt greater reflective revision among citizens. I argue for democratic persuasion at greater length in section V of this chapter.

In sum, by subjecting the family and civil society to normative scrutiny, the principle of public relevance provides a way of recognizing what is problematic about the Hateful Society. Although it might formally respect the rights of equal citizenship in its laws, the Hateful Society permits the unabated spread of racism and discrimination within the “private sphere” of the family and civil society. Discriminatory beliefs directly challenge the ideals that justify rights in the first place. Soon I will describe value democracy’s response to beliefs and practices that are protected by rights but that oppose the ideal of free and equal citizenship. Before doing so, it is necessary to clarify the meaning of the ideal of free and equal citizenship.

III. THE MEANING OF FREE AND EQUAL CITIZENSHIP

Defenders of a traditional division between public and private spaces might worry that the principle of public relevance is potentially limitless, opening every aspect of life to public scrutiny. A...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction Averting Two Dystopias
• Chapter One The Principle of Public Relevance and Democratic Persuasion
• Chapter Two Publicly Justifiable Privacy and Reflective Revision by Citizens
• Chapter Three When the State Speaks, What Should It Say?
• Chapter Four Democratic Persuasion and State Subsidy
• Chapter Five Religious Freedom and the Reasons for Rights
• Conclusion Value Democracy at Home and Abroad
• Notes
• Bibliography
• Index