Autonomy and democracy.

• Author: Lipson, Morris

Standard arguments about such fundamental matters as the nature of political obligation and the justifiability of civil disobedience, not to say revolution, revolve around conditions under which interference with autonomy is permissible. Indeed, it is a commonplace that the success of a political regime is to be measured, in significant part, by the extent to which it protects and furthers the autonomy of the individuals who constitute it.

Such arguments presuppose a relatively uncontroversial version of autonomy. But what is it to be autonomous?

A natural initial thought is that autonomy is nothing other than (negative) liberty. On this view, a person is autonomous with regard to his decisions if his decision-making procedure is unencumbered by constraints. He is autonomous with regard to his actions if, having decided to act in a certain way, he is at liberty so to act.

It is, however, unlikely that anyone seriously has espoused this view. For it is almost certainly a mistake to identify autonomy with negative liberty, if negative liberty itself is thought of as freedom from all constraints. The problem for autonomy, rather, arises when constraints are imposed on an agent's choices or actions by someone or something other than the agent. Thus, the more plausible view (to which I will refer as individualism) is that an autonomous agent is one who possesses negative liberty in the sense that he is free from any externally imposed constraints. As Robert Paul Wolff has put it, the autonomous person may be bound by a variety of constraints, as long as "he alone is the judge of those constraints."(1) That is, a person need not, at every turn, be "free" to choose or act precisely as he is inclined at that moment. A constrained choice or act can be an autonomous one, as long as, and insofar as, the source of the constraints is the person himself

Wolff thought that no citizen of a state can be fully autonomous. That is, only anarchism is fully compatible with genuine autonomy.(2) But even those who do not contest the prima facie legitimacy of political authority have employed a Wolffian conception of autonomy to constrain state authority. A prominent example is Robert Post, who has argued that the state can have no role in regulating speech under the First Amendment.(3) That discussion is the focus of this Note.

Post's target is the view, propounded by (among others) Alexander Meiklejohn(4) and Owen Fiss,(5) that the state has an affirmative obligation to regulate speech for the purpose of securing citizen autonomy. Specifically, this view ("collectivism') envisages the state stepping in when it determines that debate is not rich enough, in order to provide for its enrichment, even if doing so requires it to silence some speech in order to enable other speech. Post claims that this position threatens citizen autonomy, arguing that a fundamental concomitant of such autonomy is the citizens' power and right to decide what they will hear on public issues, and that this is precisely what collectivism seems to wrest from them. The argument for Post's position, as I will show, rests squarely on individualism.(6)

This charge against collectivism is serious. I attempt to answer it by arguing, first, that individualism generally is compatible with some external constraints on the choice set of autonomous decision makers. Second, I argue that it follows that, in the context of the autonomy of citizens in a democracy, a certain degree of state regulation of speech is permissible. In Part I, I expound, in general terms, the collectivist commitment to rich public debate. In Part II, I rehearse Post's arguments against collectivism. Parts III through V contain my defense of collectivism. In Part III, I argue against the coherence of (Wolffian) individualism. On the basis of that result, I argue that a particular kind of autonomy must be at the center of collectivism's concern. Finally, I spell out collectivism's principal commitments in terms of that conception. Part IV contains my direct response to Post, while Part V develops and answers an important objection to my response. Part VI contains some concluding remarks.

I.

The First Amendment, according to collectivism, requires public debate to be robust and wide-ranging enough to enable "true collective self-determination,"(7) and permits the state to regulate speech to that end, where necessary. Though the concept of true self-determination may not be perfectly perspicuous, we can imagine well enough scenarios in which we are intuitively confident that public decisions are not products of true self-determination.

Consider first a scenario in which citizens have been so inundated with messages from one side of a debate - say, as a result of an extremely effective advertising campaign - that they have, as a result, not only embraced the message conveyed, but have become unable, also as a result of the inundation, to attend to or to process messages from any other perspective. (Call this the saturation scenario.) By "as a result," I mean that it has been by the sheer power of the repetition that citizens have arrived at their present convictions, rather than by way of some deliberative acts (for example, by reflection on the messages in the light of presently held views, wishes, hopes, and the like). In a word, the repetition has caused the convictions.(8)

It is clear, I think, that if a public decision is the result of votes cast by persons on the basis of convictions like these, the decision is not an instance of true collective self-determination. For the decision of the collectivity, resulting from the votes of individual citizens, is an act of determination by the collectivity only if each citizen (or, perhaps, enough citizens) has determined for him- or herself what his or her vote shall be. To determine for oneself how one will vote, however, is to deliberate with respect to the matter to be voted on.(9) If, on the other hand, some external agent were to cause citizens to vote for a certain position,(10) although the result might be unanimous, the decision really would amount to the external agent's acting through the citizens. Perhaps the vote would be an act of self-determination by the external agent - but it is no such act (and perhaps, no act at all) of the citizens.

The saturation scenario makes plain the central role of individual deliberation in true collective self-determination, and that is why I have chosen to start with it. A slightly different scenario, however, will be more centrally involved in my argument with Post. I will refer to it as the deficiency scenario. In it, citizens' convictions are provisional; they are subject to revision upon the receipt of new information. Citizens do, in fact, sift information they receive, at least insofar as they think it bears on their convictions. That is, they deliberate before they vote, and how they vote is determined by their deliberations. In the deficiency scenario, however, there exists information that would bear on the votes of (at least some) citizens in the sense that, were they to receive the information, it would figure in their deliberations. Their convictions would not necessarily change - indeed, the information might only confirm the citizens' sense that these convictions are the ones they ought to have. Even so, the citizens would critically consider their convictions in light of the new information, if they received it.

The public decisions in this scenario are the results of deliberation., In a way then, they are acts of collective self-determination, for the collectivity determines itself by virtue of each citizen determining his or her vote for himor herself. But there was information available - in the sense that it would have been disseminated had its possessor been able to disseminate it. By hypothesis, its dissemination would have made a difference to the citizens' deliberations, and hence could have altered the public decision. In this case, then, it is not clear that the votes of the citizens represented their own best judgment. It is as though no citizen had fully expressed himself in his vote, because there was a part of him that had been inactive, but that would have been active had he received the information. But then, the public decision might not have been truly collectively self-determined, for it was not a judgment by which citizens truly represented themselves.

A simple example may help to cash out this metaphorical story about "parts" of a citizen. Suppose a citizen is to vote on a presidential candidate. No issue of marital fidelity has been raised in the campaign, and the citizen has not thought to raise the question himself regarding any of the candidates. He has strong views on the matter, however. He believes that a candidate who cheats on his or her spouse shows dishonesty and a failure of commitment, and thus is not qualified for substantial public leadership positions. Suppose now that one of the candidates has indeed been unfaithful to her spouse, and that some citizens would publicly announce this information, but are unable to do so. Suppose, further, that the citizen casts his vote for that candidate. His vote is inconsistent with one of his deep convictions. A part of him - a conviction that he believes constitutes part of the kind of person he is - is not represented in his vote even though it should be, since there is public information available (in the sense that some citizens possess the information and would willingly convey it) that implicates that conviction. In this case, the citizen's vote could have represented substantially more of him than it in fact did, and therefore the vote does not well represent him. If this is true of enough other citizens, the resulting public decision is not a true reflection of the citizens, as represented by their true commitments. It is not, therefore, an act, or at least not fully an act, of true collective...