Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines

44 Pages Posted: 5 Feb 2014  

Corey L. Brettschneider

Brown University - Department of Political Science; Fordham University School of Law

Date Written: June 1, 2013

Abstract

The doctrine of viewpoint neutrality is central to First Amendment jurisprudence. It requires the state to not treat speech differently based on a speaker’s political or philosophical opinions. The doctrine has recently come under attack, however, for protecting hate speech and other views inimical to liberal democracy. Critics note that most democracies outside of the United States have rejected the doctrine of viewpoint neutrality, while still endorsing a right to free speech. In stark contrast to these critics, Martin Redish has offered a clear and robust defense of this doctrine, which he grounds in an account of “epistemic humility.”

In contrast to these positions, my theory of “value democracy” suggests a new approach to viewpoint neutrality. I suggest the doctrine rightly protects rights of people to make up their minds and speak while keeping them free from the threat of coercive punishment. I add, however, that the state has an obligation to use its expressive capacities to defend the values that underlie these rights and to criticize expressions of hate that oppose them.

Value democracy therefore highlights two aspects of free speech. First, it develops an account of how the values of free and equal citizenship — autonomy and equal respect — ground the doctrine of viewpoint neutrality. To respect the equal autonomy of citizens, the state should not coercively ban hate speech. Second, it articulates an expressive role for the state in defending the values of free and equal citizenship. The state should defend these values by criticizing hate speech and other viewpoints that seek to undermine the freedom and equality of citizens. Using its expressive capacity, the state can respect rights at the same time that it checks the spread of illiberal viewpoints, thus avoiding complicity with the hates speech it protects. I suggest, moreover, how value democracy can help us to rethink the First Amendment doctrines of the “limited public forum” and “state speech,” as presented in Bob Jones University v. United States, Rust v. Sullivan, National Endowment for the Arts v. Finley, and Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez.

Suggested Citation

Brettschneider, Corey L., Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines (June 1, 2013). Northwestern University Law Review, Vol. 107, No. 2, 2013; Fordham Law Legal Studies Research Paper No. 2390299. Available at SSRN: https://ssrn.com/abstract=2390299

Corey Brettschneider (Contact Author)

Brown University - Department of Political Science ( email )

Box 1844
Providence, RI 02912
United States

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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