WHEN THE STATE SPEAKS, WHAT SHOULD IT SAY?: HOW DEMOCRACIES CAN PROTECT EXPRESSION AND PROMOTE EQUALITY

by Corey Brettschneider. Princeton, N.J.: Princeton University Press, 2012. 232pp. Hardcover $28.37. ISBN: 9780691147628

Reviewed by Jerome O’Callaghan, Associate Dean, Arts and Sciences, State University of New York at Cortland. Email: Jerome.Ocallaghan [at] cortland.edu.

pp.520-523

The heart of Corey Brettschneider’s thesis is simple: the state should use its expressive capacity to counteract the speech of those attacking democratic values. The core democratic values to which he turns throughout the book are freedom and equality of all citizens. The threat comes from hate groups, contaminating the public forum while pushing the state toward more and more stringent reactions. Per Brettschneider the state is best advised to rely on persuasion, not coercion, to counteract hateful viewpoints. In the context of modern disputes about hate speech (think Ku Klux Klan rallies or Nazi marches) government should, under the auspices of our constitutional commitment to free speech, engage in viewpoint neutrality. We should tolerate the presence of hate speech in the marketplace of ideas, but we should also counteract hateful ideas with the state's counterarguments. When he asks, “what should the state say?”, the answer is predictable: it should say those things that promote the “democratic values” of liberty and equality. In doing so it should explain the reasons why Americans have elevated those values to the pinnacle.

Brettschneider's analysis inevitably engages some of the better known cases on free speech, association, religion, and government spending. (e.g. R.A.V. v. St. Paul, Virginia v. Black, Bob Jones University v. United States). For students of the first amendment (and civil liberties in general) this is an interesting, albeit routine, discussion.

Brettschneider typically sides with the Supreme Court in cases where the viewpoint neutrality doctrine has been applied (e.g. RAV v. St. Paul, Virginia v. Black). His focus is on the state’s role in providing more speech, i.e., the act of “democratic persuasion.” Fleshing out the details of how democratic persuasion works in the context of various constitutional doctrines takes up the bulk of the book. Occasionally he slips and seems to desire not just state rebuttals to hate speech, but something more effective: “when beliefs, expression, and practices conflict with the ideal of free and equal citizenship, they should be changed to make them compatible with that ideal” (p.21). His standard line on this is less forceful; he is at pains to minimize a state's coercive role. He expects the state to speak in a variety of ways: the direct statements of leaders, the establishing of monuments, the designation of public holidays and the delivery of school curricula. He reminds us of the value of promoting the role of Martin Luther King in American history, likewise the value in revering Elizabeth Cady Stanton and Harvey Milk for their courage in promoting the values of equal treatment for all citizens. This is all [*521] well and good, and, at least in my reading, amounts to a solid endorsement of the status quo.

The key to counteracting hate speech in this volume is democratic persuasion, which is a burden that lies on “citizens, state officials and public agencies” (p.48). We are told that as individual citizens we should examine our beliefs to see how they fit with the values of free and equal citizens, and we should make corrections where needed. This is called "reflective revision"; think of it as a Socratic dialog for one, with a touch of the Catholic confessional about it.

At the societal level democratic persuasion is the job of the state. The tactics in this campaign (more speech, school curricula, etc.) extend to refusal to subsidize viewpoints that challenge free and equal citizenship; this is more controversial territory. In this scheme allowing the Ku Klux Klan to march downtown is consistent with equal first amendment rights, but tax exempt status for the KKK is inappropriate. The latter puts the state's stamp of approval on hateful speech, while the former shows the state’s support for key constitutional and democratic values.

On the topic of state subsidy the path for government becomes treacherous. Brettschneider's prescription is that we should avoid lending support to propaganda that is in conflict with core values. For example, the state should avoid funding a showing of Birth of a Nation, or Triumph of the Will, despite the artistic or historic merit involved in both films. Then we get to tax-exempt status where some very fine lines are drawn. In the case of the tax-exempt status of churches, Brettschneider worries about the Catholic Church's positions on gay members and female priests. However the Church, like certain Orthodox Jewish groups, gets the benefit of the doubt as it is not clear that church principles “are directly opposed to the values of free and equal citizenship" (p.135). If a church's central doctrine challenges free and equal citizenship it should be denied tax-exempt status (for example the notorious Westboro Baptist Church). Another organization that would not fare well in Brettschneider's scheme is the Boy Scouts of America. Challenging the Supreme Court decision in Boy Scouts v. Dale, he believes the Boy Scouts should lose tax exempt status; the organization engages in status discrimination against gays that is "relevant to public life more generally" (p.132).

A cautious reader may well feel that a state seeking to engage in "transformation of discriminatory religious belief" will do more harm than good. At a theoretical level "religious identity might be transformed by democratic persuasion" (p.160), yet the appeal of religious belief is at least in part tied to its commitment to immutable truths. These truths are not subject to tinkering to match the needs of liberal democracy. "Democratic persuasion be damned," you might say.

For all the complications involved in indirect state support of religion – an area in which the Supreme Court has muddied the waters at regular intervals – Brettschneider has provided careful and insightful analyses of two key cases: the Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, and Rosenberger v. University of Virginia. Yet the problem is a vexing one; anytime the state picks [*522] sides regarding religion the risk of civil strife is high.

Brettschneider has tried to chart a course for government between two extremes. On the one hand we have the hateful community where hate speech dominates and intimidates, while at the other end of the spectrum we have the invasive state where coercive government policies promote equality at the expense of liberty. Promoting liberty for all while challenging hate groups is a daunting task. Readers intrigued by the topic of how best to respond to hate speech should look to Jeremy Waldron's The Harm in Hate Speech for a provocative and clear sighted response to the issue (whether or not you agree with Waldron). Brettschneider's analysis is, in contrast, slow going and often repetitious.

I had two specific doubts about the Brettschneider approach as his analysis unfolded. First, his “state” is peculiarly disembodied. It does not appear to be staffed by humans – it is manifested in institutions. Politics plays no role in the who/what/when/where/why of the state choosing to speak. This worries me; as much as I can understand why government should engage in democratic persuasion, I can not help but surmise that particular politicians, with particular factional goals in mind, promote visions of democracy to suit a selfish political purpose. This affects both the content of the persuasion and the impact it has on the public mind. Effective responses to hate speech may come from leaders (local or national) but so much else comes from them too; the public has a right to be cynical about values campaigns that carry the label “democratic persuasion.”

Second is the problem that the state speaks to us in millions of ways every day. To be blunt, the state won’t shut up. Every mayor’s press bulletin, every park groundbreaking, every court opinion, every dollar bill, not to mention the State of the Union address, it all counts. Every STOP sign is government speech. In this cacophony of government expression, the possibility that democratic persuasion will even be noticed seems remote. Effective persuasion needs an attentive listener. While the ideal of promoting democracy is beyond quibbling, his faith in the ability of the state to persuade with speech looks suspiciously na├»ve.

Indeed, the conventional wisdom on inculcating values and changing viewpoints is that even a commitment as substantial as four years of college has little or no impact on students. When it comes to forming opinions and values that matter in a democracy, parents, families and grade school education are the variables that matter (Cohen, 2008). There is perhaps some truth to the old adage attributed to the Jesuit order, "'give me a child until the age of seven and I will give you the man". This only goes to underline the importance of the role of the state as educator, a point that Brettschneider engages too briefly.

REFERENCES:

Cohen, Patricia. "Professors’ Liberalism Contagious? Maybe Not," [*523]New York Times. Available online at: http://www.nytimes.com/2008/11/03/books/03infl.html.

Waldron, Jeremy. 2012. The Harm in Hate Speech. Cambridge: Harvard University Press.

CASE REFERENCES:

Bob Jones University v. United States, 461 U.S. 574 (1983).

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

R.A.V. v City of St. Paul, 505 U.S. 377 (1992).

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

Virginia v. Black, 538 U.S. 343 (2003).


© Copyright 2012 by the author, Jerome O’Callaghan.