Torts, Bans, and Democratic Persuasion: A Reply to West, Fleming, and McClain (with help from Norton)
posted by Corey Brettschneider
At the start of the symposium on When the State Speaks, Paul Horwitz praised much of the book’s argument and its conclusions, but he worried that public officials might push the state’s expressive powers in problematic directions. This sort of worry led him and Steve Calabresi to argue that the book is too strong in its conception of democratic persuasion. For example, they raise concerns about my argument that the tax privileges of 501(c)3 status should be extended only to groups that serve the public good.
I argue that the law already has a public good requirement for receiving tax privileges, but that the definition of “public good” is often vague and potentially arbitrary. The book defines the public good requirement in a more precise and consistent way that would be less open to abuse than the current standard. To serve the public good, groups should accept the ideal of freedom and equality for all citizens. A group that supports hatred of minorities and the curtailment of their rights should not receive public support in the form of tax privileges.
In this post I respond to scholars who are pushing me in the opposite direction from Paul and Steve. Robin West, James Fleming, and Linda McClain all agree with me that the state should promote an ideal of free and equal citizenship. Their arguments help to motivate a strong conception of democratic persuasion, in response to Paul’s and Steven’s concerns. However, West, Fleming, and McClain would allow types of democratic persuasion that are more activist than the book’s. Would their proposals risk violating free speech rights, and would they be consistent with my approach?
In her engaging post Robin West urges me to expand the various ways the state should speak in defense of its own values. She argues for expanding democratic persuasion to include tort law. Her proposal would allow private citizens to sue and inflict civil penalties on hate groups. Jeremy Waldron and Catherine MacKinnon have similarly suggested that people who are subject to hate speech could sue for damages. MacKinnon includes pornography as a type of hate speech that promotes misogyny. The difference between bans on hate speech and a tort-based approach has recently been taken up by Justice Alito. Dissenting in Snyder v. Phelps, Alito writes that the state cannot prohibit the Westboro Baptist Church’s hate speech, but he suggests that a private tort might be allowed against the church.
I recognize that these proposals also are ways of promoting values of free and equal citizenship and are attempts to criticize hate groups. But I am skeptical of using torts as a means of democratic persuasion for two reasons.
First, it is crucial to my proposal that individuals can effectively exercise a right to dissent from democratic persuasion and to resist it. I have argued that this right does not entitle the advocates of hateful or discriminatory viewpoints to public subsidies of their views, as Michael McConnell and some of the Court’s jurisprudence seem to suggest. However, torts would go much farther than non-subsidy. While non-subsidy refuses to support hateful viewpoints, torts risk taking all resources from citizens who engage in hate speech, perhaps to the point of bankruptcy. The aim and likely effect of torts is that the right to free speech would become a mere formality without the resources to exercise it. I would thus reject proposals that have the aim of prohibiting speech, such as a proposal to tax or sue hate speech out of existence. Such proposals would violate the right to free speech in a way that would deliberately exclude the real possibility that citizens could dissent. By contrast, non-subsidy allows citizens to continue to dissent. For example, although they had their tax subsidies discontinued, Bob Jones University and the Christian Legal Society continued to exist and exercise their right to dissent.
Second, I think that turning to private actions has the risk of losing the clear notion that the state that has an obligation to speak in democratic persuasion. Pursuing democratic persuasion through private torts might create the impression that hate speech is only an issue between individuals rather than an affront to the public, democratic values of free and equal citizenship. The state makes it clear that it is expressing public democratic values when it criticizes hate groups and refuses to subsidize them. In her insightful post Helen Norton explains that I am defending an obligation of the state to express the reasons for rights. She makes the important point in her post and her own work that it is imperative for the state to clarify that it is defending its own values when it speaks. I worry that the turn to private law moves in exactly the other direction, turning hate speech into a private matter rather than one of public relevance.
In their post Fleming and McClain are concerned that if I embrace democratic values, they argue, I should embrace the policies of Canada and other countries that directly ban certain kinds of hate speech. They worry that democratic persuasion might be viewed as a kind of disrespect for people who hold hateful views, triggering a backlash. In effect, they might be read to suggest that democratic persuasion is more intrusive and disrespectful than outright prohibitions on hate speech.
I think, however, that bans opposing hate speech disrespect citizens in a way that persuasion does not. To prohibit someone from holding a view is to deny them the autonomy to be free to make up their minds about whether to embrace or reject a viewpoint. Like free speech theorist Alexander Meiklejohn, I argue that a democratic society should trust adults to adopt, defend and listen to even the most misguided views. To threaten citizens into rejecting certain viewpoints would disrespect the status of citizens as the autonomous source of democratic authority. In contrast, persuasion and disagreement are ways of showing respect for citizens’ autonomy. It respects their capacity to listen to, criticize, and respond to arguments. At the same time, the state would be defending democratic values in pursuing democratic persuasion. Such behavior might wrongly be thought to be a “nanny state.” But state is instead doing what Helen Norton suggests, clarifying its support for public, democratic values. If the state can also simultaneously guarantee the right to dissent, this shows respect in a way that outright prohibition does not.
Using the coercive force of law to impose viewpoints would be a position at odds with the core meaning of liberalism, the tradition that Fleming and McLain identify themselves as supporting. This is why thinkers from Mill to Meiklejohn to Rawls embrace robust limits on using coercion to punish speech I believe, however, that these limits on coercion are compatible with democratic persuasion.
Of course, Canada and other countries that ban hate speech have not descended into the dystopia of the Invasive State. But the specific laws prohibiting hate speech fail to respect the autonomy of citizens and their rights to dissent. To uphold these rights, it would be better to use the alternative means of persuasion that I have outlined.