Thank you very much for sharing this, I found it very interesting. I’m writing up an account of the distinction for my PhD thesis, and am (tentatively) defending an account of the distinction as only relevant in cases where ideal theories must be complemented by nonideal theories in order to form a complete theory of ethics. (That is, ideal theories can’t form complete theories of ethics on their own.) Mine is a modification of Zofia Stemplowska’s view (in ‘What’s Ideal About Ideal Theory?’ 2008), and I’m saying that ideal theories are those that do not depend for their validity on their ability to offer achievable and desirable aims. They might offer achievable and desirable aims, but aren’t rendered invalid if they do not. (I’m just saying for the moment ‘this is a useful definition’ not ‘mine is the one true account’…)

I was just writing to ask whether you have posted or published any thoughts on the issue since this? I’d be keen to read it if so. Also, I was wondering whether you could please point me in the direction of any summaries of Blake and Buchanan’s views? For example, any places where they mention their assumption that an ideal world wouldn’t have states?

Thank you very much,
Michael

Titles include: “Ode to Ostriches”, “Political Science’s 2nd Law?”,
“Roosting Justice, Roasting Conservatives”, and “A Republican Swipe at Blight.”

At your leisure, see: http://politicalpipeline.wordpress.com/2013/03/18/poetry-project-political-languages/

All the best,

http://www.gate.cnrs.fr/spip.php?article580

There have been some interesting experiments in social choice theory with the presidential election here. See:

http://www.votedevaleur.org/co/votedevaleur.html

http://voteaupluriel.org/

Unfortunately, I don’t know what has been done recently in English.

Regarding your first point, consider the following. In some countries, cigarette packs are required to have shocking images and slogans about the harms of smoking (see, especially, the policy that was recently enacted in Australia: http://www.bbc.co.uk/news/world-asia-20559585). This instance of state speech illustrates compelled exposure, or gets very close to it. Suppose that, in addition, you cannot buy cigarettes unless you read out loud to the vendor the following line: “I acknowledge that, according to the scientific evidence compiled by the government, smoking increases my chances of dying from cancer by X percent.” On my understanding, that would surely qualify as compelled exposure. Now, in my opinion, it would violate no rights whatsoever. We might quibble whether it would be a good or bad policy. But it would be a legitimate one. By contrast, forcing smokers to attend non-smoking persuasion sessions for 20 hours a week for as long as they smoke would be another thing altogether. In this case, unlike the former, people’s pursuit of their plans of life would be significantly affected. That was my point about compelled exposure to democratic persuasion. Contrary to Corey’s suggestion, it is not like compelled (adult) schooling. If there are decent reasons for compelled exposure (as I believe there are: namely, the very reasons that Corey articulates for democratic persuasion), and if the specific policy would trivially affect persons, no rights would be violated. Recall that Corey gives us a clear standard. The racists should be allowed to develop, affirm, and express their views. I simply cannot see how a measure of the sort I have suggested would fail to thus treat them as free and equal citizens.

As for your second comment, when it comes to all reasonable viewpoints, I fully endorse your Rawlsian claim about securing the fair value of freedom of speech. We should not merely guarantee the formal political freedom, but also ensure roughly equal opportunities to exercise it. However, it is not clear to me that we owe the same treatment to those who hold unreasonable viewpoints. You suggest that down the road I don’t really think that racists should have free speech rights. A better description of my view would be that our (everyone’s) opportunities for expressing hateful viewpoints should not be as extensive as our opportunities for expressing reasonable viewpoints. I am not denying the racists a fundamental aspect of the right to freedom of speech in the liberal tradition (arguably, the most fundamental aspect): namely, protection against persecution or punishment for expressing their views. This, of course, implies that racists should have adequate opportunities to make their views known. I have mentioned some venues that are by no means trivial (and you can ask anyone who has been censored about that). For instance: publish books, CD’s, pamphlets, magazines, newspapers, websites, and so on. My problem is with hate speech in certain public spaces, for the reasons that Waldron, among others, has offered. To insist on the comparison, I do not think that a ban on billboards showing explicit sex is a violation of the right to freedom of speech, whereas a ban on all publications with that content would surely violate freedom of speech. It seems to me that the case for having a similar policy regarding hate speech is even stronger.

I think the real issue here is how we justify rights, and if you’re a political liberal then your justification of a speech right is inevitably going to appeal to political values. I don’t think it’s an easy matter for a political liberal to simply agree or disagree “that the expression of such views per se do not constitute rights violations.” Even if there are hateful expressions that violate rights, it isn’t clear why criminalization is a straightforward response. And the worry isn’t merely cost-effectiveness: simply criminalizing each and every purported speech-related rights violation threatens the dystopia imagined by the neutralist camp, of a tinkering state meddling in our lives, deciding which speech act is or isn’t a violation of someone else’s rights (I suppose a cynic would say that sounds a bit like Canada’s Human Rights Commission). So that’s why, even if I deny a right to express certain hateful views in certain ways, I would still have a problem with the heavy hand of the state.

Also, I don’t know if we all agree that there can be a threat to democratic citizenship in unrestrained hateful speech. I do know that Corey wants to take that claim seriously, along with the corresponding neutralist impulse to reply that speech ought not to be restrained (excepting “clear and present danger” scenarios and “time and place” regulation).

I guess I’d also quibble with your reformulation. You say it’s clear that democratic citizenship can be threatened if people reject the values upon which liberal democracy rests, and that we then are faced with the question of how to stop the spread of those illiberal and antidemocratic ideas. It seems to me, however, that there’s another step. What you say here seems to me to be shorthand for something like ‘when people reject the core values of liberal democracy, then may then do things that threaten liberal democracy, such as undermining the standing of fellow citizens as free moral equals.’

So I don’t think it’s quite right to say that, even on your framing of the story,

“the threat to democratic citizenship is not the expression of the hateful views itself. It’s the fact that people have the hateful views, and may do other things that undermine the ability of the liberal democracy to function.”

True, people with hateful views may well do other things that threaten liberal democracy, but one of the things they can do is willfully propagate hateful speech. Here the real problem for liberal democracy is not what’s in their hearts and heads (their illiberal beliefs), but what they do based on those beliefs.

You suspected earlier that an approach like Corey’s would have to be at least partially non-consequentialist. I agree, but the flip side is being partially consequentialist, and here’s one aspect of that: who cares if people reject the core values of democracy in their hearts? (Corey, at least on Sarah’s reading, may well care, but I don’t think he needs to). I care if their rejection makes them do things that undermine liberal democracy, specifically the standing of fellow citizens as free moral equals. That’s the prohibitionist’s worry, after all: a hateful society full of vitriol and lies, sustaining legacies of racial marginalization and just waiting to inspire violence, but with everyone having the right of unrestrained speech.

Now, on this story, the threat to democratic citizenship is not the expression of the hateful views itself. It’s the fact that people have the hateful views, and may do other things that undermine the ability of the liberal democracy to function. But the expression of the views, all by themselves–just saying something disgustingly racist, misogynistic, etc.–is not directly the problem. At best, it’s indirectly a problem because its cumulative effects can be bad for democracy. That’s surely built into the structure of rights–if I give you a right to do certain acts, then the cumulative effects of lots of people using those rights in undesirable ways might be bad. But that doesn’t mean they weren’t legitimately exercising their rights along the way. It also doesn’t mean they violated anyone’s rights along the way. If they did, then we surely wouldn’t say they were exercising a right of their own at all. Surely it’s built into the structure of rights that you cannot violate someone else’s rights simply by making permissible use of your own.

It sounds like you disagree with the claim that the expression of such views per se do not constitute rights violations. Maybe Corey does as well–I’m not sure. But I think that if Corey does believe there is a rights violation that follows merely from certain speech, then I agree that he would have trouble resisting the conclusion that such speech may legitimately be criminalized. (He might still resist it on cost-effectiveness grounds, but we all agree that this is not the most important issue at stake here.) He’d also have to deny that people have a right to express hateful views. I think you make this denial as well–is that right? If so, then again I’m not sure why there’s any special problem for you about criminalizing it, apart from considerations of effectiveness.

When you attribute to Corey the view that mere expression does not violate the rights of other citizens, you seem to be pushing him toward the neutralist camp, which of course is a move he wants to resist.

So, when you ask if I disagree that “merely expressing hateful racist views” doesn’t violate rights? I think I probably would disagree with that as an unqualified assertion, yes, but that’s neither here nor there: I’m pretty sure Corey disagrees, or he wouldn’t be trying to argue this middle ground!

I mean, the whole motivation for his exercise is the thought that there can be a threat to democratic citizenship in unrestrained hateful speech, but that there is a parallel threat in simply silencing those speakers through state coercion.

My remarks re: evolution were intended in the spirit of your second interpretation–it’s an analogy for that attitude the state should take re: democratic values. One of the main problems I see for political liberals, as I indicated, is that it does not make plain why in the world anyone should endorse liberal values. “We’d all get along better if you did” is not a good answer, but at times it looks like it’s the only one on the table. Sure, if we all already accept the idea that all people are free and equal for political purposes, and that this idea should routinely override other values when there are conflicts, then there’s no problem to solve. But political liberals often fail to offer anything but this. I’m suggesting that if political liberals are going to tell a story about why the values of freedom and equality are supposed to form the basis for political organization, they need something analogous to my claim about evolution–it’s something like an incontrovertible fact, not rejectible by any reasonable person (where “reasonable” means something other than “accepts the freedom and equality of all,” a definition which would be perfectly circular).

Assuming that political liberalism has some such answer to the question “why freedom and equality,” then I think the rest of what I said follows. You should believe in freedom and equality because that’s the reasonable thing to believe. If your religion is compatible with that, then there’s no problem to solve. If it is not, then your religion tells you something unreasonable, and you should change that. Any belief system that tells you “don’t worry about reasonableness” (under a suitable definition) is, I believe, not worthy of further attention. I simply don’t care if unreasonable people have a harder time of it.

I don’t think that what I say here requires any specific form of comprehensive liberalism; all it requires is the minimum that any plausible form of political form of liberalism must assume to be minimally coherent and plausible. If political liberals don’t have a compelling answer to the question, “why be a political liberal?” then they really are the folks who cannot take their own side in an argument.

There is, I guess, always the possibility of arguing that democratic citizenship is sufficiently like a political office as to justify requiring people to prepare for that office. This might justify something like mandatory continuing democratic education for adults. But that would impose demands on people far beyond what most liberals would countenance, and even then, it could only justify general programs of democratic education, not programs specifically targeted at people who oppose democratic values.

Second, your example of the Westboro Church doesn’t strike me as taking the value of free speech seriously enough. Rent Madison Square Garden? Seriously? That sounds like something that opponents of campaign finance reform would say. Everybody’s got a right to found a newspaper or a television station, after all–me, you, the Koch brothers, Rupert Murdoch, homeless people, etc. But it’s rather obvious that for most people–i.e., everyone outside the top .1%–options for expressing opinions are limited. It woudn’t take many restrictions on opportunity to render the right of freedom of speech pretty useless for most people. I would also prefer that your daughter not see racist billboards, but that exact same argument would shut down most of the outlets a racist could possibly access (unless he’s incredibly rich). If you don’t think racists should have free speech rights–which is the direction this argument tends to follow–then your difference with Corey is more serious than you suggest.

Peter: “I would assume that Corey’s defense of free expression–and, indeed, any successful defense of it–would be at least partially nonconsequentialist. “

Sure, yes, that was my thought when I stressed that this way of thinking about the spectrum between coercive and non-coercive state persuasion would be sensitive to:

(i) the likelihood and egregiousness of the consequences of hateful speech;

(ii) the need for public justification of the state’s move along the spectrum from expressive to more directly coercive persuasion, with that justification referencing both (i) and

(iii) the degree to which the speaker has been unwilling to argue sincerely within public reason, and is instead wilfully and unreasonably hateful without even trying to justify their speech, even when (i) has been demonstrated to them and (ii) satisfied.

Now, if we simply say that they don’t need to justify their speech because it’s value just is that it is the free expression of a moral agent (i.e. “People should be able to express views on matters important to them” and “that is of value regardless of the value of the views or the expression offered”), then I think we get out of the realm of political liberalism, don’t we?

It seems to me that even if there were an indisputably clear and present danger of hateful speech violating other citizens’ standing as free moral equals (or much worse), and even if the hateful speakers wilfully disregarded evidence and argument expressed by the state’s persuasive efforts, (ii) is a demanding condition: more coercive state actions would have to meet the state’s own standards of respecting the free and equal status of the offending speakers.

So, flogging of Klansmen is clearly out (… literal flogging … intellectual flogging is richly deserved, but almost certainly falls on deaf ears). I’d say even jail sentences for unrepentant Nazi agitators is probably off the table too, within Corey’s framework, so long as they don’t commit assault, libel, slander, etc.

But what about legal penalties imposed on the offending speaker and their broadcaster, with collected fines directed to public education programmes and the like? Or what about compelling broadcasters, upon threat of severe financial penalties, to pair hateful messages with mandatory criticism and to support public awareness efforts against racism or the like? And what if hate groups and broadcasters refused to pay – would more traditional forms of state coercion then be justified?

There are obviously muscular forms of liberalism that have a problem with the state responding in the way I’ve just described. But if, like Corey, you want to stay within political liberalism, and you want to draw the line between expressive and coercive action by hitching democratic persuasion to the former but not the latter, then I think you run into this problem.

Again, if we confirm that illiberal speech meets the public relevance test, is motivated solely by hateful irrational animus, and that the speaker is wilfully indifferent to evidence and reasoned argument (specifically about such things as the public relevance of their actions, the duty citizens and the state have to affirm core values against denialists, and yes, the likelihood of harmful consequences attending their speech), then it’s hard to see why measured but more coercive forms of state expression would be unjustified, so long as they remain consistent with the limits Corey plausibly imposes on democratic persuasion.

I would assume that Corey’s defense of free expression–and, indeed, any successful defense of it–would be at least partially nonconsequentialist. People should be able to express views on matters important to them. That is of value regardless of the value of the views or the expression offered. If so, then there’s an obvious reason why the state can express its attitude to certain beliefs in politicians’ speeches but not in jail sentences for Nazis, even though both actions obviously do express an attitude towards democratic values. I’m not sure how your account of hate speech laws takes this into account.

Thanks for your comments and I’m sorry for my late reply. I’ve been distracted by other things the last few days.

I think it’s internal to the structure of political liberalism to engage in a certain amount of hand-wringing about religious views. The question is how much hand-wringing we need to do. Some religious views are unreasonable–for example, those that deny toleration or essential democratic rights–so it’s not necessary to engage in any hand-wringing about them. Yet because the very aim of political liberalism is to formulate terms of cooperation that people with a variety of reasonable comprehensive doctrines can accept, the political liberal does need to worry about whether the requirements she is proposing can be acceptable to people with reasonable religious views. This is not because political liberals are unduly deferential to religious belief systems. It’s because the philosophical aims of their own project will not be adequately realized unless their conception of justice is acceptable to a people who hold a variety of comprehensive doctrines, including some religious ones. So the need to think from religious people’s point of view is an internal requirement of political liberalism itself.

Moreover, nothing in political liberalism, as I understand it, requires thinking that religious belief systems themselves are owed respect. Instead, individual citizens are owed respect, but one of a citizen’s fundamental interests is in formulating and pursuing her own conception of the good, a conception that may (or may not) be religious in nature. We need to make sure that whatever terms of cooperation we impose, they allow sufficient space for the fulfillment of this fundamental interest.

Corey’s project wants to push beyond Rawls by suggesting that political liberalism can require citizens to revise not just their political beliefs, as they affect voting, others’ legal rights, the use of coercive state power etc., but also their private beliefs, as expressed in the family, civil society, and religious associations. My question is simply this: does this leave sufficient space for citizens’ fulfillment of a conception of the good that may be religious in nature?

I am open to the possibility that the answer may be: yes it does. If there are still some nonpublic contexts in which citizens can hold and act on views that are derived from religious authorities like their church or their sacred text, rather than on public values, then this may be sufficient accommodation for the interest in religious conceptions of the good. But if there are no contexts in which public values do not apply, then I worry about whether one of our fundamental interests as citizens has been adequately accounted for.

I want to make two other points in response to your comments. One is about the example of evolution. I doubt that a political liberal could endorse a requirement that democratic citizens believe in evolution, even if it is objectively true. I think that a political liberal *can* require that children be taught evolution in school, because it is a prerequisite of access to knowledge about modern science and to many careers. But if some people want to opt for a religious belief system that rejects evolution, that seems to me perfectly compatible with their fulfillment of the other requirements of democratic citizenship. I don’t see how rejecting evolution entails that one fails to regard one’s fellow-citizens as free and equal.

Perhaps you just mean to use the example of evolution as an analogy to how the state might require people to revise their beliefs to comport with democratic values, not to say that democratic citizens are morally required to believe in evolution. But if you actually think there is a requirement to believe in evolution, because it is an “incontrovertible fact,” then I think this approach is incompatible with political liberalism. The whole premise of political liberalism is that something’s being objectively true is not a sufficient reason to use the state’s political power on its behalf.

It may be, as you indicate toward the end of your comments, that you reject political liberalism altogether in favor of a comprehensive ethical liberalism. In that case, you wouldn’t face any worries about using state power to get people to believe incontrovertible facts, and you wouldn’t need to do any hand-wringing about religion. But this approach may face other objections, such as whether it can adequately account for the value of toleration. But since Corey explicitly adopts political liberalism, I take it that this response is not available to him. For him, I think that in order to show the internal aspirations of political liberalism are achieved, he needs to show that a citizen can be religious, and retain and act on some beliefs derived from religious authority, within his more expansive conception of the relevance of public values.

The decision in Lukumi rejects a particular set of acts — those that have the purpose of discriminating against religious practices — whatever the motivation for them. The state doesn’t have to say anything about the specific motivations. And even if it does reject intolerant religious views, I don’t see why it has to engage in theological reasoning to do that. It can say: whatever the theological truth, it is unreasonable to invoke such claims as the basis for oppressing others.

Your example serves equally well. The state prohibits murder, whether for religious reasons or otherwise. We don’t usually say that when a secular state prohibits murder, it is “doing theology” or engaging in religious reasoning. The prohibition can rest on shallower foundations than that. The sames goes for the requirement that the state not target religious practices for special burdens.

Of course, those who reject those prohibitions will infer from them a denial of their views. But that does not mean the state engaged in any theological reasoning to reach that denial. It may be a consequence of the state’s claim, but not necessarily a source of it.

To be sure, my claim is not that the state’s prohibition on burdening religious practices is neutral with respect to religious views that seek to impose such burdens. That obviously isn’t the case. But this non-neutrality does not mean that the state acted for religious reasons or arrived at its position only after engaging in theological reasoning. In Lukumi, the Court didn’t do anything of the kind.

I’m more into blends myself–with Christopher Hitchens, I would regard Johnny Walker Black Label as the breakfast of champions–but I am perfectly prepared to believe the world is a better place due to a plurality of opinions on the subject.

In his opinion for the Court, Justice Kennedy did discuss the religious views of some public officials, but that was in the context of an inquiry into direct and circumstantial evidence into the city’s discriminatory purpose (following the standard set in Arlington Heights). Kennedy cited various religious statements as evidence of discriminatory purpose, but any statements expressing animus toward the Santeria religion would have come within this inquiry. For the Court, what mattered wasn’t the religious source of the ban, but rather that the ban aimed at practices that were religiously motivated. After discussing direct and circumstantial evidence of animus, the Court concluded: “This history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation” (580 U.S. at 542).

My point here is continuous with what I wrote in my response to Kevin above. An implication of the Court’s decision is that citizens may not rely on their religious beliefs to prohibit religious practices they oppose. But the message of Lukumi is ultimately broader than this: citizens may not rely on any beliefs — religious or not — to pass laws that target religiously motivated practices for special burdens (or at least they can’t adopt such laws without satisfying strict scrutiny). I don’t see why the state has to “play theologian” to send that message.

On one reading, reflective revision is only a requirement for internal consistency. We might call this the “internal consistency model” of reflective revision: citizens should change their private beliefs and actions to be consistent with their own public commitments. The difficulty with the internal consistency model, as you and Peter rightly explain, is that it cannot appeal to citizens who reject democratic values both publicly and privately. These citizens are already internally consistent in holding values that oppose free and equal citizenship.

On another reading, reflective revision requires what I would call “external congruence.” According to this model, citizens should change both their public commitments and private beliefs to adopt democratic values. The advantage of the external congruence model is that it applies to citizens who consistently reject democratic values both publicly and privately. These citizens have a duty, not simply to be internally consistent, but to respect the values of free and equal citizenship.

I believe that Corey takes the external congruence model of reflective revision. But why does he focus on examples like the school board member, who is committed to freedom and equality publicly, while rejecting it privately in his own family? Why does he discuss at length cases of internal conflict?

I think it is because he has a particular aim in mind when offering the three arguments for reflective revision. It is to explain why it is not enough for citizens to respect free and equal citizenship only publicly, such as when they contribute to a town hall meeting, make a speech, or serve in public office. Corey wants to show that citizens should also respect democratic values in what are traditionally considered “private” spaces, such as the family and associations. That is why he focuses so much on cases of internal conflict. He is responding to the objection that citizens only need to respect democratic values publicly. At the same time, he is also arguing that citizens should reflectively revise their beliefs if they consistently reject democratic values. This is in line with the “external congruence model” of reflective revision.

Now it might be said that reflective revision would not be very effective in these cases. If people consistently reject the values of free and equal citizenship, how can there be any foothold for them to change their minds?

I think there are three possibilities here. First, democratic persuasion can make strong arguments based on the reasons for rights. These arguments can persuade citizens to change their minds. This might seem far-fetched. But consider the growing acceptance for interracial marriage. Democratic persuasion, pursued both by the state and its citizens, can convince people to become more tolerant. We’ve seen it work, imperfectly but powerfully, in our lifetimes.

Second, even if democratic persuasion does not at first directly convince the people who hold discriminatory viewpoints, it might persuade their friends, families, and neighbors. People who hold discriminatory viewpoints can be more open to being gradually persuaded by those they trust (as a large literature in social psychology shows). For instance, Ted Olsen, President Bush’s former solicitor general, changed his previous opposition to the right of gays to marry, and even became a leading legal advocate for the right of gay marriage. He attributed his revising his view to being convinced by friends who were gay, or who had gay family members.

Third, democratic persuasion can help to establish a general social expectation and norm of support for free and equal citizenship. What emerges is an increasing social and reputational cost to opposing interracial marriage or other rights. In these cases, it becomes more common for people to profess a commitment to a right in public, while rejecting it in their private beliefs or behavior. But once people make a public commitment, there is now a foothold for them to reflectively revise their private beliefs and actions to be congruent with democratic values.