In my Opening Article I explored the potential of "upstream" speech restrictions to undermine the political legitimacy of "downstream" laws. (1) Using hate speech bans as an example, I argued that these restrictions had the potential to seriously compromise, and in some cases even annihilate, the legitimacy of antidiscrimination laws as applied to those whose ability to publicly object to these downstream laws had been impaired by the speech bans. Professor Jeremy Waldron, whose criticism of Professor Ronald Dworkin's and my previous and rather cursory presentations of this proposition inspired me to more fully explore and develop this position, wrote a response to my Opening Article. (2) A group of distinguished scholars from several nations and working in various disciplines then commented on this discussion. (3)
Admirably fulfilling his role as my principal interlocutor, Waldron filed a vigorous and comprehensive conceptual challenge to the position that upstream speech restrictions can deprive downstream laws of legitimacy. Although none of the commentators fully embraced Waldron's wholesale rejection of my position, several offered trenchant challenges to some specific aspects of my argument. But the brunt of the disagreement with my Opening Article was empirical and related specifically to hate speech. Several commentators thought that I exaggerated the extent of the restriction that hate speech bans had placed on the ability of people to oppose antidiscrimination measures. They also claimed that I underestimated the effect on legitimacy resulting from hate speech itself. There was also vigorous disagreement about the appropriate legal response in a state of uncertainty about the harmful effects of hate speech.
In this Reply I will address both the general criticism of my view that viewpoint-based restrictions on public discourse can deprive downstream laws of legitimacy, as well as the specific criticism of my claims about the detrimental effect on the legitimacy of antidiscrimination laws resulting from hate speech bans. But before doing so, I think it might be helpful to explain why I chose hate speech as the exemplar of speech restrictions with the potential to undermine the legitimacy of downstream laws. I will also address a concern raised by Professor Frederick Schauer about this choice.
To explore the idea that upstream speech restrictions can impair the legitimacy of downstream laws, I focused on hate speech bans for several reasons. First, I was aware of no other type of speech restriction commonly applied (or misapplied) in liberal democracies as likely to have this effect. In addition, as just mentioned, the first person to critically engage the proposition that a speech restriction could deprive a downstream law of legitimacy was Waldron, who did so in two works defending narrow restrictions on hate speech. (4) Finally, as Professor Vincent Blasi appreciates in his Commentary, I was concerned that hate speech bans enacted to protect members of vulnerable minorities may have the perverse effect of impairing the legitimacy of antidiscrimination measures enacted to protect these same individuals. (5)
In his Commentary, Professor Schauer expresses the concern that the focus on hate speech restrictions risks that "the analysis of interesting and important questions about the relationship between political legitimacy and freedom of speech will be both crowded out and distorted" by this contentious subject. (6) Schauer's fear has, at least to some extent, materialized: the discussion has morphed into one in which the propriety of hate speech bans in liberal democratic societies has assumed equal billing with the relationship between free speech and political legitimacy. This shift in emphasis has undoubtedly, as Schauer predicted, resulted in a somewhat less sharp focus on the relationship between free speech and legitimacy than I had hoped for. On the other hand, this development may at the same time have been beneficial if, as two commentators have claimed, examining hate speech regulation through the lens of political legitimacy has moved the stale and stalled discussion of propriety of hate speech in a novel and helpful direction. (7) In Part I of this Reply I will try to mitigate the problem that Schauer identified by addressing with as few references to hate speech as possible Waldron's largely conceptual objection to my argument. I will also reply to some more specific objections to the view that speech restrictions can rob downstream laws of legitimacy. I will then in Part II reply to various criticisms of my argument that hate speech restrictions as they actually operate in many democratic societies have undermined the legitimacy of antidiscrimination measures.
CHALLENGES TO THE CLAIM THAT UPSTREAM SPEECH RESTRICTIONS CAN DEPRIVE DOWNSTREAM LEGISLATION OF LEGITIMACY
WALDRON'S CRITIQUE OF THE CLAIM THAT UPSTREAM SPEECH RESTRICTIONS CAN RENDER IMMORAL ENFORCEMENT OF DOWNSTREAM LEGISLATION
As already noted, Waldron is the only participant in this Symposium to file a wholesale challenge to the position that speech restrictions can impair, and in some instances even destroy, (8) the legitimacy of a downstream legislation as applied to citizens whose ability to speak out against the legislation was impaired by the speech restriction. It should be noted, however, that Waldron challenges only the normative aspect of my claim. He does not take issue with the contention that upstream speech restriction can have a detrimental effect on the descriptive legitimacy of downstream legislation.
The idea that I developed and defended in my Opening Article concerning the downstream effect of upstream speech restrictions was a novel one, apparently more so than I appreciated, (9) and as such, required rigorous testing. I am therefore most grateful to Waldron for providing a thoughtful, comprehensive, and vigorous critique of this position. As a preliminary matter, though, it is worth noting that Waldron may characterize my position somewhat more strongly than I meant to express it.
Waldron writes that I contend that an upstream speech restriction, [L.sub.u]. can so severely impair a particular person's, P's, ability to speak out against a proposed downstream law, [L.sub.d], that P has "a right that it not be enforced against him." (10) But this paraphrase is not quite accurate, for I said nothing about the P having a "right" not to have [L.sub.d] enforcement against him; rather, I claimed only that such enforcement was immoral. I do not believe it to be the case that people necessarily have even a moral right not to have immoral laws enforced against them. (11) Still, given the nature of the deprivation described in my Evangelical Photographer Scenario, (12) it is a fair inference from what I wrote that Elaine does have a moral right not to have the antidiscrimination law enforced against her for refusing to photograph a same-sex marriage. (13) Where Waldron may overstate my position is if he reads me as contending that this moral right necessarily implies that there should be a corresponding positive law right against enforcement. While I think there should be a presumption in any legal system against the enforcement of laws that violate moral rights, I do not believe that in every such instance people should necessarily have a positive law right against such enforcement. This is because in my view doctrinal "fit" as well as morality should play a role in determining whether a right should be recognized. (14)
In addition, and more significantly, Waldron's imputation of a rights generating effect of my position talks past an important aspect of the claim. Although I believe that under certain circumstances a viewpoint-discriminatory speech restriction can indeed render immoral enforcement of a downstream law, much more commonly such restrictions will diminish but not utterly destroy the legitimacy of the [L.sub.d]'s enforcement. So to the extent that Waldron's criticism of my position derives from what he sees as its improbable "deontic" consequences, (15) it fails to engage my claim that upstream speech restrictions can impair normative legitimacy short of destroying it. For such non-lethal damage to legitimacy, while something to "regret," (16) has no particular implication for generations of rights, moral or positive. (17)
With these clarifications of my position, we are now in a position to evaluate Waldron's critique of it.
There are several crucial flaws in Waldron's analysis that undercut his conclusion that upstream speech restrictions cannot render immoral the enforcement of downstream legislation against particular individuals. Waldron begins his critique by asserting that "debates and decisions in a representative legislature are usually seen as legitimizing the enforcement as law of the bills that survive this process." (18) For a moment, then, it seems as if Waldron is going to assert that the legislative process is alone sufficient to legitimize any law resulting from this process, even one with which people can reasonably disagree. And perhaps Waldron in fact holds this view. (19) He decides, however, not to rest his entire case on such a parsimonious and highly contestable view of the relationship between free speech and political legitimacy. (20) Rather, Waldron allows that the "best case" for my argument "looks at the informal public debate that is involved in the election and electoral accountability of legislators and in the debates in the community that complement legislative debates in the parliament." (21)
But even on the assumption that public discourse is "an indispensable part of the political process," the restriction of which might perhaps have some impact on downstream legislation, it is "quite another thing" in Waldron's view to assert that legal restrictions on this "chaotic and unformed" public debate can have the direct consequences for...