TAKING LEGITIMACY SERIOUSLY: A RETURN TO DEONTOLOGY.

• Jurisdiction: United States
• Date: 22 September 2017
• Author: Heinze, Eric

Democracy is the ongoing product of public discussion. (1) With what legitimacy, then, can a democracy limit its citizens' participation in that discussion? The question has crystallised in recent years around problems of "extreme" expression, (2) with a particular focus on so-called "hate speech." (3)

Extreme expression plays a paradoxical role in a democracy. On the one hand, it involves a small fraction of all messages. Even democracies passionately combatting it tend to bring few prosecutions and to impose mild penalties. Stronger crackdowns generally target high-profile provocateurs like Jean-Marie LePen, (4) Geert Wilders, (5) or Dieudonne M'bala M'bala. (6) The prosecuting states aim more for symbolic condemnation (7) than for comprehensive enforcement, which tops few democracies' lists of priorities. On the other hand, for many writers, including Jeremy Waldron, extreme expression exemplifies a type of communication that can legitimately be excluded from public discourse, irrespective of its ranking within any broader scheme of human problems. Under well-drafted bans, Waldron maintains, speakers enjoy full freedom to state the substance of their views, but can rightly be asked to exercise care in the form of words they choose. (8)

As I shall argue in this article, that form-substance distinction is what derails Waldron's approach. Defenders of speech bans cannot coherently divide acts of human expression into two parts--on the one hand, the substance of a message, conveying its viewpoint, and, on the other hand, that message's particular form of words, which might somehow be regulated without affecting the viewpoint. Like other defenders of bans, Waldron fails to establish his essential thesis, namely, that bans on extreme expression can be reconciled with democratic legitimacy. In his present debate with James Weinstein, it is Weinstein who--although I do note one caveat to Weinstein's view, for which I shall propose an amendment--fundamentally succeeds in depicting speech bans as democratically illegitimate. Fully-fledged democracies may take a host of measures to eliminate discrimination, but cannot legitimately penalise citizens who enter the public sphere to oppose pluralist values, however provocatively or crudely they may do so.

1. THE DEMOCRATIC HURDLE

   Various elements can render speech "extreme." The blandest idea--a nursery rhyme or a toothpaste advertisement--can be broadcast at "extremely" high volume. Conversely, one can communicate "extremely" dangerous information in a whisper. From the outset, we must apply an age-old distinction in free speech jurisprudence between the extremity of a message and extremity in the manner of its expression. Today's fiercest debates about free speech emphasize the message. They focus not on extremities of "time, manner, or place," such as loud volumes late at night in residential areas. Jurists and scholars widely agree with at least minimal regulations for those elements. (9)

   Nor do current controversies focus on objectionable content per se. Experts readily agree that content such as commercial fraud or courtroom perjury can be subjected to legitimate regulation. Rather, our intractable disputes concern the regulation of extreme messages on grounds of their viewpoint. (10) In this article I shall use the phrase "bans on extreme expression per se" to denote laws imposing penalties on expression because of the viewpoint of the message, that is, because of its philosophy or worldview, and not because of excesses in the time, manner, or place of its communication.

   Controversies about extreme expression have raged because they raise questions about how various principles ought to govern individual liberty. One, for example, is a consequentialist principle. History reveals atrocious political consequences fuelled by extreme speech acts. (11) States, in the view of some observers, must regulate such acts in order to safeguard not only vulnerable citizens, (12) but the very survival of their democracies. (13) The problem with consequentialist arguments is that causal links from extreme expression to mass atrocities have been established only in societies that are either undemocratic or very weakly democratic. Throughout decades of publications, any statistically demonstrable pattern of such causal links within fully-fledged democracies. (14) despite such expression being constantly present, have repeatedly been asserted yet have in no empirically reliable way been documented. (15)

   Another principle is dignitarian: in the interest of ensuring basic civic equality for all citizens, government may legitimately penalise heinous expression found to be targeting the human dignity of others, particularly of members of socially vulnerable groups. On that view, tracing material causation from hateful expression to empirically demonstrable harms altogether misconstrues the types of harms such expression causes: the hateful expression is itself the harm. (16)

   There are other such principles, reflecting liberal, republican, critical, and radical approaches. (17) One in particular becomes decisive in the present debate between Weinstein and Waldron, namely, a democratic one. (18) For Weinstein, along with writers like Ronald Dworkin and Robert Post, free speech ensures such an exceptionally high political value that even extreme expression must be admitted (19) into public discourse. (20) Waldron agrees that democratic legislation, administration, and adjudication draw their legitimacy from the assumption of an open, public sphere in which all viewpoints may be aired. They disagree, however, about whether bans on extreme expression exclude speakers from that sphere in any way that diminishes a state's claim to democratic legitimacy.

   Suppose certain citizens are to be excluded from public discourse pro tanto--that is, to the extent of their proscribed expression. The question for Weinstein and Waldron becomes: can the legal system legitimately be enforced against those citizens, insofar as they end up excluded from democratically essential processes of opinion formation? That question is crucial for all writers who defend bans on extreme expression per se on dignitarian grounds. Few of us, after all, can have any objection to the state using democratic processes to promote the basic value of human dignity through, for example, prohibitions on extrajudicial killings, torture, arbitrary detentions, rigged trials, or forms of racial or other discrimination. The problem arises when that value is deployed in apparent conflict with certain necessary foundations of a democracy. Dignitarians cannot legitimately proceed to speech bans except via democracy, whose demands of admitting all viewpoints must first be answered. Waldron's answer is that such bans need not exclude anyone from full democratic participation (21): "it is misleading to say that hate speech restrictions prohibit the expression of certain views per se." (22) In the remainder of the present essay I shall examine why that view fails.

2. JUSTICE AND LEGITIMACY

   For Waldron, "the problem of legitimacy is to find a basis on which a law may permissibly be enforced even against people who disagree with its content." (23) He refers to that problem as "a function of its neglect in political theory." (24) Such a claim is puzzling, given that the pioneers of modern political theory seem concerned with little else.

   Whilst deriving from legitimatus, meaning "to make lawful," it comes into usage only around the late 16th century. Writing in a precariously divided Europe, the aim of theorists like Hobbes, Montesquieu, or Rousseau is to develop legal frameworks that command obedience to substantive norms, notwithstanding disputes about those norms' substantive justice. To be sure, we often use the term "legitimacy" in looser, colloquial senses, to mean "rightness," "reasonableness," "fairness," or indeed "justice." Weinstein and Waldron, however, use it to denote some ethical reason for citizens to submit to a democratic legal system ("I obey as a matter of principle, because obeying the law of my democracy is the right thing to do")--that is, some reason to obey law beyond its sheer coercive power ("I obey solely as a matter of self-interest, to avoid fines, arrests, prison sentences, or a bad reputation").

   Early modern theory is dominated by the contractarian model, a consensualist approach which revives in the 20th century under the liberal-democratic schema of John Rawls. A legal system, on the contractarian view, commands legitimacy when plausible grounds can be adduced to suggest that we implicitly consent in practice, or that we would explicitly consent in principle, to submit to that system. For example, we rarely give express consent to laws punishing homicides or larcenies; however, on a contractarian theory, our consent can reasonably be inferred inasmuch as (a) we ourselves desire those laws' protection; and (b) even if we do not desire such protection, or do not desire it in the particular form it takes within our legal system, democracy presupposes our freedom to voice any dissent from the prevailing law or to propose alternatives.

   Plato had long ago penned the classic exposition of "speak or obey"--we are bound to obey law insofar as we had an opportunity to speak out in order to change it--in his dialogue Crito. Yet that dialogue is, in two senses, an oddity. First, in ancient Greek thought, Crito is an uncharacteristic example of legitimacy distinguished from substantive justice, a step that neither Plato nor Aristotle otherwise take in their political writings. Second, contrary to common readings of the dialogue enjoining absolute obedience to law, Crito by no means claims universality across all political systems. Its "speak or obey" mantra (25) makes sense only for a regime, like that of ancient Athens, in which a prerogative of parrhesia, of frank, unhindered, even dissident speech, enjoys...