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Category: Symposium (When the State Speaks)

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Torts, Bans, and Democratic Persuasion: A Reply to West, Fleming, and McClain (with help from Norton)

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? Read More

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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. Read More

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When the State Speaks: the Sentiment of the Golden Mean and Practical Disagreements

Corey’s book is a splendid effort to address an extremely difficult and important problem.  How should a liberal society approach the topic of hate speech.  Corey posits two dystopias that we need to avoid.  The first is the dystopia of the Invasive States which is so eager to militantly protect democracy that it regularly invades people’s rights.  The second is the dystopia of the Hateful Society which is so tolerant that it will not even intervene to defend its core norm of tolerance.   Both of these dystopias have existed in the last century:  The United States verged on being an Invasive State during the red scares and McCarthy period, while Weimar Germany became a Hateful Society.

The core instinct of Corey’s book is that we need to find a golden mean that lies somewhere between the two dystopias.  I agree with this sentiment entirely, and I also agree with Corey that we should not criminally punish hate speech and that we should not expect that when the government speaks that its speech must be viewpoint neutral.  We celebrate great men and women and events in our history for value laden reasons and that is precisely as it should be.   Public universities and schools could not even function if they did not chose to praise some viewpoints and criticize others.  That is basically what education is all about.  The Corporation for Public Broadcasting, PBS, and National Public Radio are examples of non-government neutrality as to viewpoints.  Obviously, these entities are all of value and should be retained.

I do disagree with Corey to some extent on the ease with which he would revoke 501(c)(3) status from groups that he thinks are engaged in hate speech.  My disagreement is more practical than normative.  I do not think hate speech groups deserve a 501(c)(3) subsidy, but I do fear that once government officials get in the business of evaluating which 501(c)(3)’s ought to have their tax exemption yanked a very rabid partisanship will set in which will be destructive of the goals of free and equal citizenship that Corey and I favor.  I think the federal government was within its rights under current law and that it acted correctly in yanking the tax exemption of Bob Jones University.  There has never been a religion in the United States under which interracial dating was forbidden as a matter of wide spread religious belief.  Bob Jones’ claim to a churches’ tax exempt statutes was correctly denied.  I would not conclude from this as Corey does that the Boy Scouts tax exemption should be withdrawn because of their refusal to recognize gay rights.  I think the Boy Scouts can be and should be publicly criticized for this but I would ostracize the Scouts rather than withdrawing their tax deduction.  Many political conservatives would leap at the chance  to eliminate 501(c)(3) status for liberal ivy league schools if they thought this behavior was tolerable.  We should NOT go down that road.  America’s huge not for profit corporate sector is one of the many things that makes us so much stronger than Europe and Japan.  501(c)(3)’s are what Edmund Burke called mediating institutions between the power of the state and the power of government.  They are an invaluable asset and should be left alone.

I agree with Corey that free and equal citizenship is the proper goal of the liberal state, but I would ban laws or executive actions that deprive people  of life, liberty, or property on the basis of religion as well as on the basis of race and gender.  Most people are born into their parents’ religion and this may be an immutable characteristic.  Secular and Christian people of Jewish dissent were stunned to find that Hitler thought them to be Jewish by blood and accordingly sent them to concentration camps.  Muslims today are born into their faith and may face charges of apostasy if they try to convert.

Finally, I would note that the concept of free and equal citizenship does not apply to longtime resident aliens whether legal or illegal.  This would seem to be a flaw.

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Public Values, Civic Virtues, and the Thinness of Democratic Persuasion: A Comment on Corey Brettschneider’s When the State Speaks, What Should It Say?

James E. Fleming & Linda C. McClain

We appreciate the opportunity to comment on Corey Brettschneider’s fine book, When the State Speaks, What Should It Say? (Princeton University Press, 2012). We benefitted from our prior exchange with him in the recent Concurring Opinions symposium concerning our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013). This comment is a continuation of that exchange. He and we there observed that our books are “kindred in spirit.” Our remarks here, like Robin West’s post, may confirm Paul Horwitz’s prediction that Brettschneider’s “real burden will be defending the book from its supporters.”

Both Brettschneider’s book and our book grow out of the tradition of John Rawls’s political liberalism. As such, both are committed to governmental promotion of the public values of free and equal citizenship. Both works emphasize the distinction between permitted governmental persuasion and prohibited governmental coercion. Both contemplate that government may engage in what he calls “democratic persuasion” not only by governmental speech but also by conditioning benefits or subsidies upon a group’s not discriminating on certain bases such as race, sex, or sexual orientation.

But the two books differ in significant ways, and the differences drive our reservations about his book. First, Brettschneider’s book focuses on the First Amendment and thus upon what government should say: how it can simultaneously protect expression and promote equality. That is the subject of only one chapter in our book. Our book is concerned more generally with government’s responsibility to engage in a “formative project” of cultivating civic virtues and capacities necessary for democratic and personal self-government. Read More

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The Downside of the State “Speaking” About Religion

As you may have gathered by now, Corey Brettschneider’s book When the State Speaks makes roughly the following argument: It is important for the state to uphold and defend the ideal of “free and equal citizenship,” which is “the most basic ideal of public equality that underlies liberal democracy.” In doing so, it should avoid coercive measures taken against groups or individuals that hold “hateful viewpoints,” but it should make full use of its “persuasive” powers, which include not only expression countering those views and publicizing “the justification for those rights protected by law,” but also the denial of tax-exempt status and state subsidies for “groups that oppose the core values of free and equal citizenship.” That’s a blunt (but fair, I hope) statement of Brettschneider’s views, although they are importantly nuanced and hedged with cautions and substantive limits.

In my previous post, I argued that Brettschneider’s views are likely to face more pressure and danger at the hands of those who support them than those who oppose them outright. Precisely because Brettschneider takes a middle-ground position between what he calls the dangers of the “Invasive Society,” which attempts to coerce citizens’ views, and the “Hateful Society,” which he claims is indifferent to hateful and discriminatory views, his argument is likely to be co-opted by those who would ignore his caveats and substantive limits and impose a much more coercive and/or unbounded version of his recommendations. In this post, I want to discuss his application of his general approach to religion, a subject he takes up in the fourth and fifth chapters of his book. Rather than offer a laundry list or go over the (several) objections I have to some of his characterizations of current law, I want to raise three or four basic points.

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Value Democracy and Government Speech

Corey Brettschneider’s theory of value democracy urges that “the state should simultaneously protect hateful viewpoints in its coercive capacity and criticize them in its expressive capacity.” Although he is primarily interested in political theory rather than constitutional law, Corey’s approach nonetheless invites engagement with the Supreme Court’s emerging government speech doctrine even while he builds on it. Under this doctrine, the Court treats government’s own speech as exempt from free speech clause scrutiny. This approach leaves the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf, with political accountability (rather than the free speech clause) as the recourse available to those unhappy with their government’s expressive choices. But Corey finds the government speech doctrine too “often couched in excessively value-neutral terms. A value-neutral approach would allow the state to promote whatever message it wishes, even if it expresses a message directly opposing the reasons for rights. In contrast to a value-neutral theory of state expression, democratic persuasion is distinctly non-neutral, and calls for the state to express a message that promotes the values of free and equal citizenship. This is an obligation, not distinct from rights, but that comes from the obligation to promote the reason for rights.” In other words, while the Court’s approach simply recognizes that government has the expressive power to speak, Corey insists that government has an affirmative duty to speak in a certain way (at least on certain matters).

Because I have written in the past about what government should not say (e.g., exploring whether and when we might understand government’s hateful speech to violate the equal protection clause), Corey’s theory is especially interesting to me because he focuses instead on what government should say. As a matter of political theory, he maintains that government has a duty to condemn hateful speech and to seek to persuade citizens to embrace equality values as their own. Even so, he urges that “the state should not seek to transform all inegalitarian beliefs, but only those that challenge the idea of free and equal citizenship.” This, of course, rests on the contestable premise that we can meaningfully parse speech that denies equal citizenship from that which does not. And although I understand why Corey is more interested in examining the state’s duty to speak than limits on that speech (to be sure, he notes establishment clause and perhaps other constraints on government expression), I still feel that the latter issue deserves greater attention in a discussion of this topic.

For example, a number of scholars have proposed various free speech clause limits to the government speech doctrine – especially in situations where the line between government persuasion and coercion is faintly drawn — but as yet the Court remains unmoved. I’m particularly troubled that the Court has failed to insist that the government affirmatively identify itself as the source of contested speech as a condition of asserting the government speech defense to free speech clause challenges. Indeed, it seems to me that government speech is most valuable and least dangerous when the public can identify the government as speaker, and thus is empowered to hold government politically accountable for its expressive choices.

To be sure, determining expression’s governmental source is generally not a problem with respect to the collective speech (such as a report, proclamation, or resolution) of a government agency or body. But some situations raise greater challenges, as is the case with the expression of individual government officials who also retain free speech rights of their own. For example, under what circumstances does the Constitution permit — or should value democracy allow — a government employer to punish its employee for speech inconsistent with the government’s own expressive choices? Corey maintains that public officials have an affirmative duty to promulgate the values of free and equal citizenship. More specifically, he emphasizes “the distinct importance of public officials’ following through on their public commitments and pronouncements,” and applies this principle to justify a public school’s firing of a teacher who publicly advocates the Klan’s views. I’ve suggested a similar conclusion in certain narrow circumstances from a value-neutral perspective, urging that the speech of public employees who serve as the voice and/or the face of the government potentially poses such grave threats to government expression to justify government’s control of their communications. Either approach, however, requires that we take on the hard job of determining which government jobs trigger such expectations and when such employees’ speech truly threatens the government’s expressive commitments. To this end, I would have liked to have seen Corey grapple with possibilities less extreme than the Klan in the public schools.

Despite the questions I’ve sketched out here, I remain largely sympathetic to Corey’s efforts to reconcile our often-competing commitments to free speech and equality. His is an ambitious project – and also an optimistic one. I’ll close by suggesting that Corey’s case might have been made even stronger with more evidence in support of such optimism – i.e., when and under what circumstances are government’s efforts at democratic persuasion most likely to be successful in persuading folks of the values of free and equal citizenship?

 

 

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Permissible, Obligatory, and Prohibited State Speech: A Response to Mark Graber

I want to begin by thanking Concurring Opinions for hosting this symposium on When the State Speaks. It is a terrific list of contributors, and I look forward to engaging with all of them. Most critics of State Speaks divide into one of two categories: those who think the theory might be too demanding in its account of what the state should say and those who think it might be too weak. Despite his sympathies with the project, Paul Horwitz seems to fall in the first camp, worrying that my account might be too permissive. On the other hand, Robin West thinks my account of state speech is potentially too weak, if it excludes using tort to further the values I want to defend. In a previous symposium (www.publicreason.net) critics were roughly even on whether they thought the account should be more or less robust in what the state should say.

I will respond to Paul and Robin in a future post but it is important to first clear up a potential misunderstanding. It would be a misreading of my view to think that the state must either speak in favor of a view or condemn it, as Mark Graber seems to assume. This overlooks the cases of permissible state speech where the state has no obligation either to promote or criticize a view. For instance, the state has no obligation to promote or argue against “rooting for the home team” in public schools.

To avoid this misunderstanding, it is essential to distinguish three categories of state speech: obligatory speech (what the state should say), prohibited speech (what it should not say), and permissible speech (what it is allowed or optional for the state to say). The part of my book on “democratic persuasion” focuses on what is required of the state as a matter of obligation. It ought to promote the ideals of free and equal citizenship while protecting the rights of citizens to dissent from these values. This leads me to argue that criticism of viewpoints that oppose these values, namely hateful viewpoints, is obligatory for the state. At the same time, state speech which itself opposes these values is prohibited, though citizens still have the right to express hateful viewpoints (see p.126). So, for instance, on my view it would count as prohibited state speech for government buildings to fly the flag of the slave-owning Confederacy. In general, the limits given by the Establishment Clause also concern prohibited state speech.

But it is important to recognize that there is some state speech that is neither required of the state nor prohibited. Such cases are instances of permissible state speech. I say, for example, on page 90 of the book that promoting awareness of basic health is in this category of permissible state speech. I write, “I hold open the possibility that other kinds of state speech might be neither obligatory nor prohibited. Pronouncements in favor of public health, such as warnings about smoking or trans fats, do not violate an ideal of equal citizenship . . . Such pronouncements might be permissible . . . .” The book argues that cases of permissible state speech might arise when a viewpoint passes the test of not opposing the liberal values of freedom and equality. The state is thus neither prohibited from expressing the viewpoint, nor obligated to criticize it. By overlooking the book’s inclusion of this category of permissible speech, Graber misleadingly assumes that I am committed to a state obligation to either promote or condemn instances of speech, such as school boosterism. On the contrary, this kind of state speech is permissible, not obligatory or prohibited.

Is teaching basic rationality by the state required state speech? In my discussion of Yoder, I take the line that Mark Graber suggests and argue that it is not just permissible but required. Indeed, this is why I think Yoder is wrongly decided. The ability to reason is a precondition of exercising ones’ rights as a free and equal citizenship.

But is “rooting for the home team” required state speech? This would be a strange view and I am unsure what defense there might be given for it. Rooting for the local town high school should not be a requirement of any government. It likely is permissible state speech if we mean by this that local schools might be permitted to encourage people to support the home team.

This brings us to Mark’s example of Victorian poetry. Mark writes that state speech might include the message that “[c]ultured persons recognize Victorian poetry is better than the American poetry of the time.” I do not think such a claim is required state speech but I would be interested to hear the possible argument for this position, if Mark holds it. Such speech might be permissible, but we can imagine versions of the example in which it is prohibited. I think schools should be prohibited from promoting (as opposed to historically teaching) Victorian views on matters of sexual morality that undermine women’s equality or that promote a particular religion. Depending on how schools praise the Victorians, this kind of speech could verge on the teaching of religious values of the kind that I think the establishment clause rightly prohibits.

I am not sure if this leaves any disagreement between Mark and me. I sense he thinks the state should say more than I am willing to require or permit. But we would have to hear more about what this speech is and whether he is arguing for permissible or obligatory state speech. Of course, if he wants a broader category of required state speech or rejects my claims about what speech is prohibited he risks endorsing the kind of view that Paul Horwitz warns about in his post.

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Rules for the State that Never Shuts Up

Every Friday in September and October, public schools officials across the United States attempt to persuade numerous impressionable minds of the following proposition: “You should come out for the big game and support our team.”  Shortly after that announcement is made on the PA system, students attend a math class in which another public school official attempts to persuade them that, to quote Wikipeida, “the area of the square whose side is the hypotenuse (the side opposite the right angle) is equal to the sum of the areas of the squares whose sides are the two legs (the two sides that meet at a right angle).”  Students then off to English class, where another public official attempts to persuade them that cultured citizens appreciated Victorian poetry.

On a superficial reading, Corey Brettschneider believes all these official efforts at persuasion violate fundamental liberal norms.  His When the State Speaks, What Should it Say vigorously argues that liberal states attempt to persuade citizens only of certain fundamental liberal truths.  On all other matters, Brettschneider maintains, democratic persuasion is inappropriate.  He writes, “The legitimate state should seek to change discriminatory views to the extent that they challenge the democratic value that all persons should be regarded as free and equal.  However, to avoid having the state impose a ‘comprehensive doctrine,’ I argue that persuasive attempts at transformation should only be aimed at those beliefs that are openly hostile to or implausibly consistent with the idea of public equality.”

This seems an implausible theory of government speech, particularly if you think public schools across theory do not routinely violate liberal norms every ten seconds or so.  Perhaps with some strain, we might decide that liberal theory is committed to all scientific truths, since liberalism may have commitments to basic rationality.  I am less convinced that liberalism requires public officials persuade people that they really ought to read Victorian poetry (as opposed to, say, histories of Sweden).  Nothing in liberal theory depends on whether the good and faithful students of Mepham High School are persuaded to support their team in the big game against Calhoun.

The reason I suspect When the State Speaks makes a broad claim that seems to have such obvious counterexamples is that Brettschneider confuses two distinct problems.  The book jacket asks, “How should a liberal democracy respond to hate groups that oppose the ideal of free and equal citizenship?  To this question, Brettschneider gives an interesting, important, largely correct, and, most important, very plausible, answer.  The state should grant all persons the right to advocate non-liberal beliefs about public equality, but liberal states should also engage in aggressive attempts to persuade citizens that liberal egalitarian values are sound.  There are, of course, always details that one might criticize as others in this symposium have done and will do, but I suspect few will dispute the basic principle that liberal states ought to use the bully pulpit and the state treasury to promote the cause of liberalism.  Brettschneider in the book, unfortunately, maintains that his providing standards that govern a far broader concern that how a liberal state should respond to hate groups and hate speech.  The introduction promises “a guide to identify when state speech is appropriate, to elaborate its content, and to define its proper limits.”  If we are talking about “state speech” in general, then we need to talk about state efforts to persuade people to support the home team, read Victorian poetry, and recognize the Pythagorean theorem.  States officials routinely attempt to persuade both students and adults on these matters, yet no one thinks this matters have anything to do with public equality or, for that matter, that there is anything wrong with state persuasion (within limits) on these matters. Read More

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Coercion and Persuasion and Speech: A Comment on Corey Brettschneider’s book, When the State Speaks, What Should it Say?

Corey Brettschneider’s book When the State Speaks confronts a core dilemma for liberalism and indeed for liberal states: how to respond to the existence of hateful speech, utterances, practices and the groups that sponsor them and promote them, in a way that checks the damage the hateful speech does to underlying liberal principles of free and equal citizenship, while at the same time respecting the rights as well as the free and equal citizenship of the speaker.  Corey rejects both of what he considers to be the two polar responses that pervade state responses, both here and elsewhere: the civil libertarian (or “neutralist”) claim that private speech is just that – private – and therefore of no concern or relevance to public values, public deliberation or public law, and that accordingly the state and larger community simply has no interest in it and should refrain from sanctioning or criminalizing it in any way, on one hand, and on the other, that of the “militant egalitarian” or some feminists, who argue that private hateful speech has very harmful and fully intended consequences and should be banned or censored in some meaningful way to stop its noxious spread.  Corey suggests that both these views veer toward one or the other of two dystopian visions of the relation of the state to its citizens: the “militant egalitarian’s” view, which urges greater criminalization of hate speech,  risks what he calls the “Invasive State,” meaning a state overly involved in our private lives, the traditional bogeyman of civil libertarians everywhere, while the liberal or neutralist view, according to which the state is and should be fundamentally unconcerned with the content of private speech, no matter how hateful or indeed how consequentially harmful, risks what he calls the “hateful Society,” a dystopia in which all rights and liberties are vigorously protected, but hate runs like an open sewer, undercutting the reasons we have rights in the first place, and with the consequence that some groups of citizens – women, racial minorities, gay and lesbian citizens – are frequently and even routinely subjected to hateful practices and utterances, including within the privatized nuclear family, and are left utterly unequipped for free and equal citizenship.   The question he raises and tries to answer in the book is how we can avoid both the Hateful Society, in which rights are protected but hate reigns supreme in the private sector, with inequality rampant and a lesser regard for the equality of us all as its clear result, and the Invasive State, in which hate is checked, but the state is a far too intrusive, and our private lives over-regulated?

Corey’s provocative and hopeful suggestion is to introduce a third possibility, fully captured by his provocative introduction of the “Persuasive State.”  The persuasive state refrains from coercion, and thus avoids the pitfall of the invasive state, but on the other hand does not deny the relevance to public values of privately held and promulgated hateful beliefs, including those promulgated within the family.  The State’s response to the holders of those beliefs, Corey believes, should be to seek to persuade those citizens to transform, modify or drop their hateful beliefs, to whatever extent those beliefs conflict with public democratic values, notably, values of free and equal citizenship.  The state should in effect counter hateful speech with argument – argument that those beliefs undercut the very values of free and equal citizenship that undergird the rights enjoyed by the holders of those beliefs themselves.  Perhaps those with hateful views will be persuaded, and will drop the views.  But even if not, other citizens will hear the dialogue, with the result being that the state will have been respectful of the equal rights of all, and will not have been complicit in the spread of beliefs that fundamentally undercut democracy.

I’m largely sympathetic to this project.  I think it is entirely right for us to recognize the relevance of private hateful beliefs to public values such as equality and freedom, equal respect and due regard, and that it is entirely right as well for us to shift our focus, somewhat, from our worries over the overuse of state’s coercive role to the possible good it can do when it acts in its persuasive capacity.  The state does after all speak constantly.  It is almost never quiet.  It speaks when it passes laws, it speaks when it justifies them in judicial decisions, it speaks when it promulgates administrative regulations and when it adjudicates those regulations, it speaks when it imposes sanctions in civil cases, and it speaks when it imprisons and fines and executes people.  It can use its rhetorical powers and force to promote liberal values of equality and freedom, and it can promote equal respect, due regard, and human dignity when it does so.  It already does this, obviously, but there’s no reason on earth that it shouldn’t be urged to do so more, and to do so more reflectively and effectively.  And, there’s no reason it shouldn’t do so in the specific context of hate speech and pornography. This is what I take Corey to be doing, and I support the effort.  I will raise just a few questions regarding the overall project which might suggest friendly amendments. Read More

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When the State Speaks: A Laundry List of Questions

I’m grateful for the chance to discuss Corey Brettschneider’s fine book, When the State Speaks, What Should it Say?: How Democracies Can Protect Expression and Promote Equality. Because these kinds of law review-esque symposia are generally too full of throat-clearing and the lavishing of mutual praise, I’ll just dispense with that part, other than to note that the book is worth reading for anyone working in the area it treats—political theory, with an emphasis on government speech, equality, and freedom of speech, religion, and association. I will also assume that readers already know the book, which is capably summarized here. I also encourage readers to go to Brettschneider’s web page and read the excellent dialogue between him and Jeff Spinner-Halev.

My first post will be more a laundry list of questions and reactions than a single coherent critique. (A second post, God willing, will deal specifically with the book’s treatment of religious liberty.) Most of the fault for that lies with me, although part of the cause may lie in the book itself, for two reasons that seem common in books of liberal political theory of this sort. The first is that some of the key terms employed throughout the book seem either contestable or underdefined, although not for lack of care and effort. The second is that the book is quite reasonable and nuanced. This is hardly a flaw, but it does mean, as is often the case with efforts to combine liberal theory with practical recommendations, that the devil is in the details, both of the theory and its application.

Although, therefore, much of what follows is a set of questions and reactions rather than a continuous critique, I think my general reaction could be summed up in a single prediction: To the extent that Brettschneider faces a burden in defending his book, it is less likely to come from thorough-going opponents of his argument. Rather, his real burden will be defending the book from its supporters. Brettschneider’s argument, which attempts to protect the right to hold and engage in even “hateful and discriminatory” beliefs and expression while asserting a role for the state in using “persuasive expression” to counter those views, attempts to hold a middle ground between the extremes of a highly partial and coercive state and a state that is utterly indifferent to what citizens say, in public and in private. I sympathize with anyone who attempts to argue for a middle-ground approach. As I wrote (about myself!) in one book, however, the middle of the road is the place where you can be struck from traffic coming from both directions. In Brettschneider’s case, I think the greater danger actually comes from his fellow travelers, who will be tempted to give little heed to his many cautions and caveats, and extend his general recommendations to a dangerous point. (This is even more true for law professors, who suffer from an unkillable reformist bent and overvalue novelty, and thus are rarely content to leave well enough alone.) The old line holds that you should keep your friends close but your enemies closer. I am more worried about Brettschneider’s friends, and I think he should be too.

On to my questions.

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