VALUE DEMOCRACY AS THE BASIS FOR VIEWPOINT NEUTRALITY: A THEORY OF FREE SPEECH AND ITS IMPLICATIONS FOR THE STATE SPEECH AND LIMITED PUBLIC FORUM DOCTRINES[dagger]

By Brettschneider, Corey | Northwestern University Law Review, April 1, 2013 | Go to article overview

VALUE DEMOCRACY AS THE BASIS FOR VIEWPOINT NEUTRALITY: A THEORY OF FREE SPEECH AND ITS IMPLICATIONS FOR THE STATE SPEECH AND LIMITED PUBLIC FORUM DOCTRINES[dagger]


Brettschneider, Corey, Northwestern University Law Review


ABSTRACT-The doctrine of viewpoint neutrality is central to First Amendment jurisprudence. It requires the state to not treat speech differently based on a speaker's political or philosophical opinions. The doctrine has recently come under attack, however, for protecting hate speech and other views inimical to liberal democracy. Critics note that most democracies outside of the United States have rejected the doctrine of viewpoint neutrality, while still endorsing a right to free speech. In stark contrast to these critics, Martin Redish has offered a clear and robust defense of this doctrine, which he grounds in an account of "epistemic humility."

In contrast to these positions, my theory of "value democracy" suggests a new approach to viewpoint neutrality. I suggest the doctrine rightly protects rights of people to make up their minds and speak while keeping them free from the threat of coercive punishment. I add, however, that the state has an obligation to use its expressive capacities to defend the values that underlie these rights and to criticize expressions of hate that oppose them.

Value democracy therefore highlights two aspects of free speech. First, it develops an account of how the values of free and equal citizenship-autonomy and equal respect-ground the doctrine of viewpoint neutrality. To respect the equal autonomy of citizens, the state should not coercively ban hate speech. Second, it articulates an expressive role for the state in defending the values of free and equal citizenship. The state should defend these values by criticizing hate speech and other viewpoints that seek to undermine the freedom and equality of citizens. Using its expressive capacity, the state can respect rights at the same time that it checks the spread of illiberal viewpoints, thus avoiding complicity with the hate speech it protects. I suggest, moreover, how value democracy can help us to rethink the First Amendment doctrines of the "limited public forum" and "state speech," as presented in Bob Jones University v. United States, Rust v. Sullivan, National Endowment for the Arts v. Finley, and Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez.

INTRODUCTION

The doctrine of viewpoint neutrality is central to First Amendment jurisprudence.1 It requires the state to not treat speech differently based on a speaker's political or philosophical opinions. The doctrine has recently come under attack, however, for protecting hate speech and other views inimical to liberal democracy. Critics point out that most democracies outside of the United States have rejected the doctrine of viewpoint neutrality while still endorsing a right to free speech. These democracies admit the importance of respecting diverse political and philosophical opinions, but they do not give wholesale protection to viewpoints that attack the freedom and equality of citizens. For example, Germany bans fascist speech, Holocaust denial, and the advocacy of racism under its principle of "militant democracy."2 Similarly, France prohibits speech that disparages racial, ethnic, or religious groups.3 Canada, in the R. v. Keegstra case, prosecuted a teacher for imparting racist views during a classroom lesson.4 In contrast, under the American doctrine of viewpoint neutrality, such government opposition to hate speech would not pass constitutional muster.

Following the example of other democracies, several legal scholars in the United States have urged the Court to reconsider viewpoint neutrality. Jeremy Waldron's recent book, The Harm in Hate Speech, rejects the doctrine for allowing minority groups to be exposed to discrimination and humiliation, undermining their equal inclusion in society.5 Other thinkers, like Catharine MacKinnon and Charles Lawrence, believe that viewpoint neutrality is inconsistent with the Constitution's commitment to the equal protection of the law.6

In stark contrast to these critics, Martin Redish has offered a clear and robust defense of the doctrine of viewpoint neutrality. …

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