Freedom of Speech, Liberal Democracy, and Emerging Evidence on Civility and Effective Democratic Engagement

Abstract

On January 8, 2011, a mentally disturbed man opened fire on Congresswoman Gabrielle Giffords at her “Congress on Your Corner” event. Six people died and several others, including the Congresswoman, were seriously wounded. In the aftermath of the tragedy, a renewed call to more civil political discourse arose, followed immediately by strenuous objections to this call on constitutional, political, and practical grounds. In this Article, we address these objections and conclude that none is sufficiently compelling to derail a civil political-discourse project.

We argue that the more important issues are whether, and how, incivility in political discourse poses a problem for democracy. Facts matter in the debate about what consequences may flow from how we “talk politics.” This Article analyzes the emerging data about the nature, causes, and consequences of incivility in modern political discourse. As we explain, the currently available empirical evidence is inconclusive on many specific points. However, it does suggest that some types of incivility, in certain contexts, may cause harm to democratic engagement and governance. At the same time, empirical evidence gives the lie to claims that perceptions of incivility are either completely idiosyncratic or completely determined by political partisanship. Research suggests a fairly substantial consensus among citizens and between citizens and researchers about what “counts” as political incivility. We therefore suggest preliminary steps that might inform a civil political-discourse agenda that respects the enduring value of full-throated freedom of expression. We also identify empirical research questions that must be answered if we are to assess the accuracy of the explicit and implicit behavioral assumptions underlying current legal and political debates about civil discourse.

Keywords: freedom of speech, political campaigns, civil discourse, first amendment, liberal theory, political theory, cognitive theory, law and emotions, campaign finance, political discourse, election law and policy, law and society