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Brettschneider on State Expression, Freedom of Speech, & the Obligation to Publicize the Basis for Rights

By Lawrence Solum

Corey L. Brettschneider (Brown University - Department of Political Science) has posted When the State Speaks, What Should it Say? Freedom of Expression and Democratic Persuasion (Perspectives on Politics, Vol. 8, No. 4, December 2010) on SSRN. Here is the abstract:

Hate groups are often thought to reveal a paradox in liberal thinking. On the one hand, such groups challenge the very foundations of liberal thought, including core values of equality and autonomy. On the other hand, these same values underlie the rights such as freedom of expression and association that protect hate groups. Thus a liberal democratic state that extends those protections to such groups in the name of value neutrality and freedom of expression may be thought to be undermining the values on which its legitimacy rests. In this paper, I suggest how this apparent paradox might be resolved. I argue that the state should protect the expression of illiberal beliefs, but that the state (along with its citizens) is also obligated to criticize publicly those beliefs. Distinguishing between two kinds of state action - coercive and expressive - I contend that such criticism should be pursued through the state's expressive capacities in its roles as speaker, educator, and spender. Here I extend the familiar idea that law, to be legitimate, must be widely publicized; I contend that a proper theory of the freedom of expression obligates the legitimate state to publicize the reasons that underlie rights, in particular reasons that appeal to the entitlement of each citizen subject to coercion to be treated as free and equal. My theory of freedom of expression is thus ?expressive? in two senses: it protects the entitlement of citizens to express any political viewpoint, and it emphasizes a role for the state in explaining these free-speech protections and persuading its citizens of the value of the entitlements that underlie them.

Full post as published by Legal Theory Blog on September 24, 2010 (boomark / email).