Value Democracy and Non-Profit Status (State Speaks Symposium): Response to Horwitz and Calabresi
The commentators for this symposium fall along two sides. One group, which is most sensitive to the risks of the “Invasive State,” argues that my account of value democracy offers too aggressive a role for the government in pursuing democratic persuasion. Horwitz and Calabresi argue that my account of state spending and nonprofit status, though I carefully limited it, might be abused by state officials. The other group represented by Fleming, McClain and West, take the opposite criticism. They claim that democratic persuasion is too weak to combat hate speech and the dangers of the “Hateful Society.” Helen Norton is the most sympathetic to my view as striking the right balance in the state’s pursuit of democratic persuasion. I will focus on the first side here and the second in a future post.
I appreciate Paul Horwitz’s careful post and his close reading of my analysis. On his view, I might be correct as a matter of principle to think that racist organizations or those groups that advocate discriminatory views do not deserve the official tax benefits of nonprofit status. But as Paul writes, policy is not just a matter of desert. The broader implications of government rules need to be taken into account. In particular, Paul worries that my proposal that to discontinue nonprofit status to groups such as Bob Jones will lead to abuses. I use the Bob Jones case to argue for the denial of nonprofit status to groups that oppose the ideal of public equality. According to this value, we are public equals regardless of race, gender or sexual orientation. While I argue for the compatibility of Catholic theology with the ideal of free and equal citizenship, I suggest that some of the Church’s charitable entities sometimes are not consistent with public equality. For instance, I defend the city of Boston’s decision to discontinue funding Catholic charities that refuse to provide services to gays who wish to adopt.
While agreeing with many of my specific examples and much of my framework, Paul worries that my proposal could be abused by others who seek a broader understanding of free and equal citizenship than I offer. Although I think a case can be made that the Catholic Church does not oppose the ideal of free and equal citizenship, policy-makers invoking my views might deny such status to groups with views that are theologically controversial, but do not reject free and equal citizenship. He also questions whether there is enough “upside” to the denials to justify this risk of government abuse.
Steve Calabresi has a similar worry. He also thinks I present good arguments at the level of what groups deserve tax privileges, but worries about the abuse of my principles. He asks: what is to prevent conservatives from using my arguments to go after Ivy League universities? He also suggests that Bob Jones might be a usual example of discrimination by what seems like a religion but is not. Like Paul, he thinks that the state does not need to engage in democratic persuasion, because citizens and our current culture might be enough to resist the spread of hateful or discriminatory viewpoints.
Paul acknowledges my response that all theories might be abused but this should not count against a theory. It should count against the abuse. But more can be said about the dangers Paul and Steve raise about the possibility that my proposal could be used to go after organizations that do not oppose the ideal of free and equal citizenship. On my view, there would be a way of codifying the non-profit proposal to provide the IRS with less discretion than they already have under 501c3. The 501 c 3 requirements currently include a need to show “charitable purpose” or, as the Court has understood it, promotion of the “public good.” I argue that the statute might be amended to clarify that opposition to ideals of equal citizenship constitute a failure to meet this public good requirement. Codifying the ideal in this way would take discretion away from the IRS and posit a clear standard that the courts could use to counter government abuse. My proposal would thus reduce the risks of government abuse compared to the current, vague standard of groups having to promote the “public good” to qualify for non-profit tax-exemptions.
This also might answer some of Steve Calabresi’s worry that conservatives might begin to use the statute to revoke the status of Ivy League universities that are perceived as too liberal. As Steve recognizes, this would be a blatant abuse of power. Clarifying the meaning of charitable purpose and public good would correct against that sort of abuse. Courts could be entrusted to push back on such abuse by relying on a clarified 501 c 3 statute.
Paul wonders what is the upside to the state pursuing democratic persuasion. As he sees it, discriminatory or hateful groups such as the KKK and American Nazis are already marginalized. He believes that the American experience of robust free speech is working and views of extremists are few and far between. Calabresi goes further than Paul in claiming that Bob Jones is really an anomalous case of discrimination.
I am less optimistic about civil society than Paul and Steve. Here I acknowledge my sympathy with the concerns that my colleagues West, Fleming and McClain raise about the dangers of hateful or discriminatory groups. As they point out, the rest of the world outside of the United States bans hate speech for a reason. We are not immune to the risks those laws aim to combat. If such views, such as anti-immigrant hostility, were to win out, this would harm liberal democracy. But they need not win at a national level; they might only win at a local level or in particular circumstances to bring about harm. Even if the risk is low, the potential harm is large. The collapse of Weimar, often thought to be a stable democracy, should serve as a warning to all democracies that they need the tools to fend off potential collapse or the rise of hate groups. I am disquieted by reports from the Southern Poverty Law Center and other researchers that hate groups are on the rise both in the U.S. and Europe. These views are always latent and we should be prepared to defend against their rise.
This brings me to address Paul’s concern that my view is not pluralistic enough. Indeed, he thinks I am a “monist” about values. However, I would characterize my view as pluralist. In my account, it is possible to endorse the ideal of free and equal citizenship from a variety of religious perspectives. Religion often does reinforce the ideal of public equality. But I also recognize that some religions fall outside of the overlapping consensus. The ideal of a liberal democracy should be a “reasonable pluralism” not any kind of pluralism. The ideal of religious freedom has itself been rejected by many religions at different points in history. I thus agree with West, Fleming and McClain who think we cannot merely ignore illiberal viewpoints, religious or otherwise. I think there are other ways to go about addressing these issues without resorting to criminal bans and coercion. At the same time, this reasonable pluralism must be cultivated and fostered. Even if the arch of the universe bends towards justice, we should not merely leave it to the universe to get actual societies there, or in a timely way that reflects what Martin Luther King called the “fierce urgency of now.”
Paul is also skeptical of the distinct need to counter the state’s possibility complicity with discriminatory or hateful expression. My view is that when the state employs its doctrine of viewpoint neutrality, its protection of hateful viewpoints risks being interpreted as complicity with or at least indifference to them. At a theoretical level, this has led to the widespread confusion that the liberal state is itself viewpoint neutral in endorsing no values at all. Thus there is a need for a theory that explains the structure of neutrality as grounded in the deeper political values of free and equal citizenship. The state should explain its commitment to these underlying values of freedom and equality for all citizens. I disagree with Paul that most people easily see that the state simultaneously protects and condemns hate speech. It is a complex idea, which can confuse even sophisticated thinkers. It needs a policy and law to make transparent this structure.
Indeed, the misinterpretation was recently prominent in news reports when riots erupted throughout the Muslim world because of the protection, consistent with the doctrine of viewpoint neutrality I defend, of a video that disparaged the prophet Muhammad and Islam. I have defended this protection, but I also think it is essential that the film and the homophobic and anti-Muslim sentiments behind it be condemned by the state. I thus have argued that the state department’s actions in publicly concatenating the video are a form of democratic persuasion in this piece for Foreign Policy: http://www.foreignpolicy.com/articles/2012/12/12/born_free_but_not_indifferent
In sum, issues of stability and complicity lead me to take seriously the concerns about hate speech expressed by the prohibitions and supporters of militant democracy. If these concerns are to be answered, while retaining the American commitment to viewpoint neutrality in protecting rights of free expression, we need to exercise the persuasive powers of the state, and not simply leave unfettered culture to work things out while the state remains silent.