Free speech and political legitimacy: a response to Ed Baker.

• Author: Weinstein, James
• Position: Article by C. Edwin Baker in this issue, p. 251 - Symposium: Individual Autonomy and Free Speech

Normative discussion too often suffers from lack of agreement on criteria by which to judge the merits of the various contending theories. Bereft of such common ground normative debate often has the deep subjectivity--and hence the productivity--of schoolyard boasts about whose dog is best. I was therefore delighted to discover that the normative essence of the autonomy-based theory of free speech that Ed Baker proposes in this Symposium is political legitimacy, (1) the same basic norm underlying the somewhat different visions of participatory democracy that Robert Post and I defend in a related symposium as the best explanation of the American free speech principle. (2) Having identified this common ground, I will in Part I of this response attempt to show that there is a firmer connection between legitimacy and participatory democracy than there is between legitimacy and the autonomy theory that Ed proposes. Part II responds to certain of Ed's claims about the fit between his theory and current free speech doctrine. Part III concludes this response with a short discussion of why overall doctrinal fit matters in determining the best theory of the First Amendment.

1. LEGITIMACY

   1. DEFINITION

      As Ed notes, political legitimacy is at least a partial solution to the age-old problem of justifying the "use of otherwise immoral force or coercion to enforce the law"; (3) or, relatedly, and adopting H.L.A. Hart's famous distinction, a partial answer to the question of what conditions are necessary to "obligate, not merely oblige people" to obey the law. (4) But though Ed, Robert, and I all ground our theories in political legitimacy, none of us so far in this discussion has explained precisely or in any detail what we mean by that term. So I will suggest that the term "legitimacy" in this context has both a descriptive and a normative sense: descriptively, a legal system is invested with legitimacy to the extent that citizens obey the laws not just out of fear of punishment but also out of a sense of duty (or "obligation," to use Hart's term); or if not out of something as strong as duty, at least because they think that obeying the law is generally the right thing to do. Normatively, a legal system is legitimate if it warrants, on moral grounds, the allegiance of its citizens. (5)

      Ed's use of the term in his article for this Symposium suggests that he is concerned predominately, if not exclusively, with the normative sense of the term, which may mean that our mutual reliance on legitimacy provides common ground only with respect to the normative but not the descriptive sense. (6) It seems to me, however, that these two senses of legitimacy converge at least at the following point: one reason that citizens might feel obligated rather than merely obliged to obey the laws, or at least might believe that obeying the laws is generally the right thing to do, is their warranted conviction that the legal system is, on the whole, moral. For this reason, I will consider both senses of the term in the discussion that follows. However, in an attempt to find common ground on which to engage Ed, I will emphasize the normative dimension.

   2. LEGITIMACY AND DEMOCRACY

      Although ultimately basing his theory in autonomy, it is significant that Ed recognizes that "[d]emocracy is one answer" to the question of what can make a legal order legitimate. Indeed, he even allows that because at least in a formal sense

      a democratic process ... 'equally' respects people as properly having a 'say' in the rules they live under.... [D]emocracy is arguably the best that can be done, given the impossibility (or, at least, lack of pragmatic appeal) of anarchic or completely voluntaristic social life, for justifying the legitimacy of the social order. (7) Given this paean to democracy's legitimating power, why then doesn't Ed agree with Robert and me that it is that speech by which people "hav[e] a 'say' in the rules they live under" that is the primary concern of the First Amendment? He offers three interrelated reasons for declining to do so: 1) the proper conception of democracy needs specification in terms of a moral rather than just a sociological or historical basis; 2) "[t]he obvious value premise that requires that democracy take a form that protects people's political speech is a principle that requires respect for citizen's autonomy within the law making process-that views them as agents with proper claims to self-determination as well as having their interest in self-realization;" and 3) there is "no obvious reason to limit this respect for self-government to collective self-governing--the political sphere-as opposed to self-governing also within private spheres." (8) I readily agree that the conception of democracy that connects free speech and legitimacy needs "specification" in moral terms. As I will explain in more detail below, the specific moral basis for the conception of democracy that I believe underlies the American free speech principle--popular sovereignty and the individual right of political participation--is a profound commitment to formal political equality. I also agree that this moral basis and the two precepts that it generates require respect for autonomy within the law making process. But here Ed and I finally arrive at a crucial point of disagreement: although it may not be "obvious," there is in my view a very good reason for confining the respect for autonomy demanded by political equality, and the specific conception of democracy that it generates, to collective self-governance.

      As I have suggested in the related symposium, (9) there are two separate presuppositions (and accompanying ascriptions) of autonomy. The first flows from the basic precept that in a democracy it is the people, both collectively and individually, not the government, who possess the ultimate sovereignty. This basic precept would be inverted if the government could restrict speech on the grounds that the ultimate governors, or some segment of them, were either too foolish or too dependent to be trusted to hear the expression of certain views or receive certain information on matters relevant to their governing authority. The second presupposition flows from the very reason we would care about legitimacy in the first place: that people are, as Ed notes, "agents with proper claims to self-determination... [and] interest[s] in self-realization." (10) It is this second, ubiquitous presupposition of autonomy that must be respected both within and outside of the political process. In contrast, since the first presupposition flows from a precept of popular sovereignty, it need be respected only when citizens are acting in their sovereign capacity.

      Crucially, these two presuppositions of autonomy differ not only in the contexts in which they arise but also with regard to the conditions that can legitimately justify their infringement. Reflecting the vital connection between popular sovereignty and political legitimacy, the autonomy presupposed of people engaged in democratic self-governance can properly, be infringed, if at all, only in extraordinary circumstances. (11) In contrast, as I shall discuss in detail below, in most cases no disrespect for the ubiquitous presupposition of autonomy arises if government has good reason for its infringement.

      Though he does not say why, Ed obviously does not agree with my view that the presupposition of autonomy relevant to collective self-governance differs from the more minimal presupposition of autonomy that must be ascribed to people in all other capacities. But having noted this crucial point of disagreement, I will now move on to what Ed calls his "more direct affirmative argument" for autonomy as the basis of a theory of free speech, (12) which, as we shall see, will ultimately bring us back to the crucial point of disagreement.

   3. IN SEARCH OF THE CONNECTION BETWEEN FORMAL AUTONOMY AND LEGITIMACY

      According to Ed, "[t]he legitimacy of the legal order depends, in part, on it respecting the autonomy that it must attribute to the people whom it asks to obey its laws." (13) The autonomy that Ed is concerned with is formal autonomy," a person's authority (or right) to make decisions about herself--her own meaningful actions and usually her use of her resources--as long as her actions do not block others' similar authority or rights." (14) Although such autonomy obviously includes a lot more than speech, this sense of autonomy does, as Ed asserts, readily "encompass self-expressive rights that include, for example, a right to seek to persuade or unite or associate with others--or to offend, expose, condemn, or disassociate with them," (15) Although the connection between formal autonomy and speech may be apparent, the connection between respect for such autonomy and legitimacy is not. Specifically, I do not believe that Ed persuasively explains how the "legitimacy of the legal order" depends on government respecting formal autonomy. More crucially, he does not explain why restrictions justified by good and substantial reasons fail to respect this autonomy.

      Ed attempts to tie his view of autonomy to legitimacy as follows: After rejecting Kantian notions of consent or self-authorship because they give those who dissent from a given law or an entire legal regime too much power over others, Ed concludes that:

      [T]he most that moral theory should expect of the majority, those prepared to back their law with force, is that they propose only laws or projects for which they can in good faith give reason to the dissenter for why she could and, the majority argues, should accept these laws. (16) This requirement "is an implicit premise of discourse, that is, of communicative action." (17)

      1. The Overlapping Consensus Between Formal Autonomy and Participatory Democracy

         To the extent that the focus of Ed's theory is with "discourse" or "communicative action" by which "the majority ... in good faith give[s] reasons to...