Democratic Persuasion and Freedom of Speech: A Response to Four Critics and Two Allies
31 Pages Posted: 29 Oct 2015 Last revised: 1 Nov 2015
Date Written: October 27, 2014
This article is a response to six essays from a symposium about my book, "When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality." In the book I offer an account of liberal democracy that combines the "neutralist’s" protection of rights with the feminist's and "prohibitionist's" concern for the equal status of citizens. I call this third view of liberalism and free speech "value democracy." When the State Speaks offers an account of "democratic persuasion" that requires the state to protect all viewpoints from coercion or prohibition. But when it "speaks" in statements by public officials, when it educates, when it uses its spending power, and when it confers the tax privileges of nonprofit status, the state must affirmatively take the side of upholding free and equal citizenship. Democratic persuasion, I argue, is not just something that the state is permitted to do. It is a matter of political obligation. Our constitutional jurisprudence, including the doctrine of viewpoint neutrality, must be tailored to permit the state to pursue its duty of democratic persuasion. At the same time, democratic persuasion places limits on state speech. It prohibits the state from speaking in ways that undermine its commitment to the values of freedom and equality.
Several of the essays in this symposium attempt to push my view toward one of the opposing poles of neutralism or prohibitionism. On the more neutralist side, Steve Calabresi worries that I have abandoned traditional liberal commitments to respect the independence and autonomy of religious citizens. Although he endorses much of value democracy, he wants to see greater reticence in democratic persuasion to limit its application to religious organizations. While Calabresi accepts a central role in liberal democracy for a more reserved form of democratic persuasion, Andrew Koppelman denies that the state has a duty to pursue democratic persuasion. At most for him, it is a "second best" set of tools for the state to use in some circumstances, especially given his skepticism about whether it is necessary or effective.
Robin West and Sarah Song push in the opposite direction of prohibitionism. On their view, I am right to seek to persuade citizens to change hateful viewpoints. They share my commitment to a political theory that challenges discrimination and seeks to promote ideals of equality in the family and civil society. But they worry that I have not gone far enough in my account. West believes that democratic persuasion does not act strongly enough to protect equality. Song questions how I might respond to critics, like Susan Okin and other liberal feminists, who argue that the state should promote more extensive changes in civil society than is permissible in democratic persuasion.
In response to these critics, I suggest that value democracy and democratic persuasion offer a third way forward in thinking about the role of values in liberalism. I attempt to show that value democracy strikes what Calabresi aptly calls "the golden mean" between neutralism and prohibitionism. My defense and elaboration of value democracy and democratic persuasion are aided by essays from Frank Michelman and Josiah Ober. I begin by highlighting how Michelman’s essay underscores the strengths of my view that a legitimate state has an obligation to engage in democratic persuasion. His focus on legitimacy offers an important reply to theorists who want to see greater reticence in democratic persuasion, including Calabresi and Koppelman. Ober’s essay responds powerfully to concerns about the effectiveness of democratic persuasion and its respect for citizens. Finally, I address West’s and Song’s calls for a more radical form of democratic persuasion, suggesting that the cautionary arguments from Calabresi and Koppelman can be used to push back against West and Song.
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