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Freedom of Speech and Religion

Abstract and Keywords

Freedom of speech and religion are among the central values of modern constitutional democracies. Efforts to understand what these freedoms mean and why they are important, and to translate them into enduring institutional arrangements, constitute a major part of the history of such democracies. As the twenty-first century begins, the political and theoretical debates over these values are not the same as they were in the past. Although centuries of philosophical controversy and institutional experimentation have settled some issues, others have been raised, with some surprising twists. Constitutional democracies rest on the principle that all citizens are to be treated as free and equal persons under the law. The principle is the settled starting point for all reasonable debate about freedom of speech and religion, and it entails that the law must secure for each citizen an equal and extensive scheme of basic liberties, including the liberties of speech and religion.

Keywords: freedom of speech, freedom of religion, constitutional democracies, institutional experimentation, theoretical debates, liberties

1. Introduction

Freedom of speech and religion are among the central values of modern constitutional democracies. Efforts to understand what these freedoms mean and why they are important, and to translate them into enduring institutional arrangements, constitute a major part of the history of such democracies. As the twenty-first century begins, the political and theoretical debates over these values are not the same as they were in the past. Although centuries of philosophical controversy and institutional experimentation have settled some issues, others have been raised, with some surprising twists. Constitutional democracies rest on the principle that all citizens are to be treated as free and equal persons under the law. The principle is the settled starting point for all reasonable debate about freedom of speech and religion, and it entails that the law must secure for each citizen an equal and extensive scheme of basic liberties, including the liberties of speech and religion.

Since the birth of liberal democratic ideals in the seventeenth century, there has been a dramatic expansion in the range of expressive activities generally regarded as instances of the exercise of free speech. Until the twentieth century, it would have been unthinkable even to strong proponents of free speech that advocating the forcible overthrow of the government was properly considered an exercise of such freedom. Today, the prevailing view is that subversive advocacy is an exercise of free speech and should be legally protected.

(p. 359)

Similarly, freedom of religion has expanded substantially over time. Until the twentieth century, Jews were routinely denied equal political and civil rights, even in the USA. They could not hold office in North Carolina or vote in New Hampshire until after the Civil War. Today such religious discrimination is unthinkable.

2. The Status of Basic Liberties

To describe the freedoms of speech and religion as basic liberties is to accord them a special status among the various forms of human activity. Basic liberties are understood to be those whose infringement by government or official action requires an especially strong justification (Scanlon 1972; Cohen 1996).

Many philosophers construe this requirement to mean that such infringements cannot be justified simply on grounds of social utility. Restrictions on basic liberties are not simply another cost to be weighed in the overall utility calculus. This idea fits comfortably with theories that posit, at the level of fundamental principle, rights-based constraints on the pursuit of social utility. Nagel explains that violating liberty of expression and conscience ‘is not a function of the balance of costs and benefits… while in some cases a right may be justifiably overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case’ (1995: 84–5).

However, utilitarians need not abandon the idea of basic liberties. They will reject any theory in which the idea of rights plays a role at the level of fundamental principle but can accept the notion that there are certain types of liberty that government must have unusually strong reasons for restricting. Utilitarians might argue, for example, that some liberties are unusually productive of social utility. Or it might be claimed that government cannot be fully trusted in its utility judgements when it comes to certain liberties, so that there should be especially strong reasons before government is permitted to restrict such liberties. Mill's arguments (1859/1978) can be construed as providing utilitarian reasons for demarcating basic liberties such as freedom of speech and conscience from those he regards as non-basic, such as freedom of trade.

3. Free Speech: Theoretical Issues

3.1 Levels of Protection

The term ‘speech’ has come to stand for all forms of symbolic expression. For example, burning a national flag in protest over a government policy or wearing a Nazi uni- form to display support for that ideology are regarded as speech. Several current (p. 360) debates focus on whether certain forms of symbolic expression, such as pornography and hate speech, should receive less than full protection or even no protection at all.

Schauer (1982) usefully distinguished questions of whether a form of expression is covered by the free speech principle from questions of the degree of protection a form of speech is to receive. It is widely agreed, for example, that commercial speech is covered, but many scholars argue that it should not receive the same level of protection as the advocacy of political doctrines or as artistic expression.

Schauer's distinction can be elaborated in numerous ways. For example, Sunstein has argued for a two-tier approach in which the upper tier consists of expression that is ‘both intended and received as a contribution to public deliberation about some issue’ (1993:134). Such expression is to receive the strongest protection and is subject to regulation ‘only on the gravest showing of harm’ (1993:123–4). Lower-tier speech involves forms of expression that are not part of the process of public deliberation, such as advertising or pornography that involves children or violence against women, and its regulation would be subject to a less rigorous standard.

Sunstein's theory is a version of an approach developed in the mid-twentieth century by Meiklejohn, who argued that ‘the principle of the freedom of speech springs from the necessities of the program of self-government’ (1948: 26). Meiklejohn claimed that legal doctrine in the USA at the time was inadequately protective of speech. But critics of Sunstein's approach doubt that it is sufficiently protective of non-political forms of speech, such as works of art that are not politically intended and interpreted (Weinstein 1999: 178).

Nonetheless, Sunstein is probably right that some way of distinguishing among forms of expression and levels of protection is needed if we are to give a cogent account of why it is legitimate for government to regulate speech reasonably regarded as calling for restriction, such as child pornography and false advertising. To extend the most stringent protection to every form of expression that counted as speech would be to tip the balance too far in favour of free speech and against the efforts of government to carry out its legitimate functions.

3.2 Speech and Conduct

The distinction between speech and conduct has also been prominent in efforts to specify a reasonable balance between the expressive liberty of the individual and the authority of government. In the past, for example, it was sometimes argued that workers who walked on picket lines or civil-rights protestors who marched in the streets were engaged in conduct and not speech. In 1971, several justices on the US Supreme Court opined that wearing in public a jacket bearing the words ‘Fuck the Draft’ amounted mainly to conduct rather than speech (Cohen v. California, 1971).

Those justices’ views are not tenable, but it has proved notoriously difficult to specify the distinction between speech and conduct. Some scholars have given up (p. 361) on the distinction entirely. Fish claims that ‘there is no class of utterances separable from the world of conduct’ (1994:114). Others have argued that the distinction does not track any ordinary understanding of what ‘speech’ is and that it must be construed in terms of the normative theory that best explains why communicative expression should receive special protection in the first place (Greenawalt: 1995a). Still others have argued that a theory of communicative expression can draw the distinction without invoking normative claims about why such expression should be regarded as a basic liberty: what should count as speech is a task for linguistic theory rather than political philosophy (Tiersma 1993).

If it makes sense to regard freedom of speech as a basic liberty, then there must be some justifiable speech/non-speech distinction. Without a non-arbitrary distinction, it would be impossible adequately to defend why the liberty one calls ‘free speech’ should count as basic. The logical consequence would be, as Fish (1994) puts it, that ‘there's no such thing asfreespeech'—that is, no domain of expressive activity that can be impartially demarcated and that merits heightened protection.

3.3 Free Speech Scepticism

Even granting a speech/non-speech distinction, Fish is sceptical of regarding free speech as a basic liberty. He contends that the term ‘free speech’ is ‘just the name we give to verbal behavior that serves the substantive agendas we wish to advance…. Free speech … is not an independent value but a political prize’ (1994:102). Because the rhetoric of liberal democracy accords high status to expression that gets to wear the label of'free speech', the label is an object of political struggle. Accordingly, Fish counsels that, if'so-called free-speech principles have been fashioned by your enemy… contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance’ (1994:114).

Fish's deflationary account of free speech erases the distinction between the values ('agendas') we happen to hold and the values we ought to hold. Once that distinction is erased, all discussion and dialogue become a matter of strategic action: what counts is successfully outmanoeuvering the opponent ('your enemy') to achieve a fixed goal, not discovering which answers can be supported by the strongest reasons. But Fish does not consistently adhere to this view. He criticizes the idea that free speech is an absolute right, arguing that it blocks dialogue about issues such as hate-speech regulation, and he suggests ways in which dialogue can proceed once the blockage is removed. Fish recommends that we consider ‘each situation as it emerges’ and regard any question about speech regulation as a ‘local one’ about the risks and gains of a particular proposal (1994:111).

Such suggestions may be plausible, but they presuppose that his situational approach would yield those answers to speech issues that could be supported with the strongest reasons. Moreover, Fish begs the question of whether speech should be (p. 362) regarded as a basic liberty. A case-by-case approach rejects any special status for free speech, but the issue is whether there are good reasons for according speech that status. And a long line of thinkers have argued plausibly that a case-by-case method is inadequately protective of speech (Meiklejohn 1948; Frantz 1962; Ely 1980). Thus, Ely notes in connection with the suppression of Communism during the 1950s that majority opinion and official judgement tend to exaggerate the potential dangers posed by incidents of unpopular speech: ‘The First Amendment simply cannot stand on the shifting foundation of ad hoc evaluations of specific threat’ (Ely 1980: 107). Ely may be wrong, but Fish fails to engage the issue with him.

Alexander and Horton express another form of scepticism, which questions the coherence of efforts to justify the status of speech as a basic liberty. They point out that such justifications necessarily appeal to general principles that (a) apply to activities that go beyond speech and (b) do not apply to some forms of speech. For example, they claim that Mill's argument that free speech facilitates the discovery of truth is vulnerable because some speech ‘contributes little toward answering … questions [and] some activities other than speech contribute a great deal’ (Alexander and Horton 1983: 1350). More generally, the justifications for free speech do not fit the idea that speech is special and distinctive from other activities.

Alexander and Horton are right that justifications for expressive liberty will bottom out on normative principles that do not refer specifically to speech but instead involve values that are more general in scope. Yet, expression may be on some short- list of activities that such principles entail should generally be treated as basic. Thus, expression may be special, even if fundamental principles do not explicitly single it out for special treatment.

An older form of scepticism, associated with Marcuse (1969), claims that class divisions and corporate domination under capitalism make the marketplace of ideas a tool through which the powerful dominate expression and perpetuate their economic and social power. A system of expressive liberty that is ‘neutral’ among competing views is in fact repressive because background inequalities stifle the voices and manipulate the thinking of the oppressed. Marcuse argued that the existing political and economic structure ‘rigs the rules of the game’ and places at a disadvantage ‘those who stand against the established system’ (1969: 92). He favoured a structure that deliberately promoted the interests of the oppressed, even to the point of censoring views antagonistic to those interests. Only after the subversion of class society by a mass egalitarian movement would a truly neutral system of free expression be possible.

Elements of Marcuse's scepticism live on today in the work of critical race theorists and radical feminists, which will be examined below. His scepticism is also reflected in the current claim that corporate power poses a threat to expressive liberty that is as serious, if not more so, than the traditional threat of government. Some argue that the means of mass communication are so concentrated in the hands of a few corporate entities that free speech for the average person is virtually non- existent. (Kairys 1998). Herman and Chomsky have argued that ‘money and power (p. 363) are able to filter the news fit to print, marginalize dissent, and allow government and dominant private interests to get their message across to the public’ (1988: 2).

Scholarly attention to the issue of corporate domination of the means of communication is likely to increase in the coming years, as globalization and the Internet alter the ways in which people communicate. Debates will focus on whether the new technologies decentralize the power of communication or further concentrate it in the hands of transnational corporations. And those who see the latter tendency at work will argue for institutional mechanisms to confine it and to build a freer marketplace of ideas.

3.4 Arguments for Free Speech as a Basic Liberty

Among the arguments for according special status to expressive freedom is that speech is less harmful than other forms of behaviour. Speech can ‘hurt’ but not really ‘harm’. But Schauer casts doubt on the ‘lesser harm hypothesis’ (1993: 640). The subjective distress caused by speech can be as intense and long-lasting as that caused by many types of conduct. And the classification of speech-induced distress as mere ‘hurt’ involves dubious and question-begging normative judgements about the disvalue of such distress. Cohen seems right to argue, ‘Denying the cost of speech is simply insulting to those who pay it’ (1996:181).

Another line of argument revolves around the claim that government is properly subjected to great suspicion whenever it seeks to restrict expression. In this view, government has strong, self-serving motives to limit expression, especially the speech of dissenters and those with unpopular views and attitudes. In particular, government will tend to exaggerate whatever harms the expression of critics or dissenters may risk causing. Treating expressive liberty as basic acts as a prophylactic to help ensure that when government restricts expression it is not simply furthering its own interests but acting for good and legitimate reasons.

This argument from distrust contains some element of truth and plays a role in current debates over pornography, hate speech, and campaign finance reform. But standing alone the argument is incomplete. Government always has a tendency to act from self-serving motives. We need some account of what makes expression, in contrast to action in general, entitled to the status of a basic liberty. Such an account would need to explain why freedom of speech is especially valuable. One way to complete the argument is to connect expressive liberty to the discovery of truth.

Prominent among the traditional arguments for the special value of free expression is the idea that the ‘free marketplace of ideas’ facilitates the discovery and understanding of truth, especially new truths that run against the prevailing wisdom of the day (Mill: 1859/1978).

Some contemporary thinkers argue that existing democracies do not have a truly free marketplace of ideas, because of oppression based on gender, race, and class (p. 364) (Matsuda 1993). But others respond that expressive liberty has historically proved crucial for emancipatory movements and that a system of free expression is vital for exposing and eliminating the oppression that remains (Richards 1999).

This debate is sometimes cast as one between advocates of wholly different political systems, but few thinkers defend censorship. The disputes are more like debates about whether the economic market for certain goods is malfunctioning and needs specific corrections than like debates about whether to eliminate the market system and replace it with state socialism. All sides can agree with Mill's claim that a system of free expression facilitates the discovery of truth, while disagreeing over whether the current system needs a ‘market correction’ when it comes to racist or pornographic speech. Still, one must wonder about the consistency of a view that claims systemic oppression, on the one hand, and then argues for reformist market corrections, on the other. Some may suggest that the only consistent radical position is one that, like Marcuse's, advocates a form of censorship.

In the current literature, perhaps the most common argument for free speech emphasizes its connection to individual autonomy. The right of free expression derives conceptually from the ‘moral sovereignty’ of the individual (Richards 1999: 50). That sovereignty requires society to respect the conscientiously expressed views of its citizens. Dworkin (1996) takes a similar approach in arguing that freedom of speech is valuable because it is a necessary element of any society that treats its citizens as responsible moral agents who have the capacity to make up their own minds about what is good or bad, true or false.

But the autonomy arguments also threaten to undo the distinction between basic and non-basic liberties. To the extent that any activity may be an exercise of autonomy, no particular form of liberty can be accorded special status strictly on the basis of autonomy. Accordingly, the idea of autonomy must be appropriately limited or the autonomy-based arguments must be modified, if the basic/non-basic distinction is to be maintained.

Rawls argues for the special status of freedom of expression, as well as freedom of conscience and other basic liberties, by linking them to what he describes as a ‘liberal’ conception of the person. On his conception, persons have two fundamental moral powers that constitute them as free and equal: the capacity for a sense of justice and the capacity to formulate, pursue, and revise a conception of the good. For Rawls, special protections for the basic liberties ‘are essential social conditions for the adequate development and exercise of the two powers of moral personality over a complete life’ (1993: 293). It is not liberty as such but only certain forms of liberty that have the appropriate connection to the two moral powers. Accordingly, his view can be seen as a modified version of the autonomy-based approach. It is examined in greater detail in the sections below on religion.

Raz emphasizes an important autonomy-interest served by free expression for individuals with unconventional lifestyles, such as homosexuals and bisexuals. ‘The public portrayal and expression of forms of life validate the styles of life portrayed (p. 365) and … censoring expression normally expresses authoritative condemnation’ (Raz 1994: 10). Thus expressive liberty helps promote the public recognition and acceptance of modes of life that lie outside the mainstream.

Another argument for free expression emphasizes its connection to democracy (Ely 1980). It holds that the special status offreespeech derives principally from the fact that it is indispensable for the kind of collective deliberation and decision making that is central to democratic self-government. Fiss presents an aggressive version of this approach in his interpretation of the US Constitution: ‘The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is a means to further the democratic values underlying the Bill of Rights’ (Fiss 1996: 83). Thus, for Fiss, expressive liberty is essential for the full and robust public debate that is called for by the ideal of collective self-government by the people. In other forms of the democracy-based argument, the role of free expression in curtailing government corruption and abuse is prominent.

Sunstein develops a nuanced version of the democracy-based approach, agreeing that individual autonomy is an important intrinsic value served by free expression but arguing that the dominant justification for treating free speech as a basic liberty stems from its role in the collective deliberations of democratic self- government. He writes that ‘the free speech principle should be seen through the lens of democracy’ (Sunstein 1993: 252).

A pluralist approach would argue that many of the preceding arguments play some role in justifying the special status of free speech. Any one argument, in isolation, may be vulnerable to criticism, but in combination they provide strong reasons for treating speech as a basic liberty. Moreover, some of the values invoked by the arguments can be mutually reinforcing. Thus, Post has pointed out that democracy requires ‘a public discourse… keptfreefor the autonomous participation of individual citizens’ (1995: 7).

Still, the internal conflicts found in a pluralist approach should not be discounted. Post emphasizes the ‘serious internal tension’ between individual autonomy and collective self-government (1995: 7). Monistic theories can avoid such tensions, but, in doing so, they may simply be ignoring the untidy reality of moral life.

4. Free Speech: Applications

4.1 Pornography, Morality, and Harm

One of the central issues of recent years has been whether the legal regulation of adult pornography is justifiable. Some thinkers advocate regulation on the basis of the moral principles of natural law. Thus, George contends that pornography tends (p. 366) 'to corrupt and deprave’ by harming ‘people's capacity properly to channel sexual desire’ (1999: 189). George's conception of natural law reflects that developed by Finnis (1997), according to which sexual acts are morally wrong if they fail to con- tribute to the inherent good of heterosexual, monogamous marriage. But many thinkers reject the view of sexuality that informs the natural law position, and the argument that pornography should be regulated because it promotes immorality is not central to the current debate.

Instead, the debate has revolved around the issue whether pornography subverts gender equality. The arguments have been shaped by the feminist insight that much pornography is not simply about sexual pleasure but also about the subordination of women as a vehicle for that pleasure.

Advocates of the legal regulation of pornography typically argue that it causally contributes to sexual assaults against women and makes men indifferent to the sexual aggressions other men may commit. Such harm, they contend, is more than sufficient to justify the regulation of pornographic expression. But there is deep division among scholars on whether, and to what degree, the causal claims connecting pornography to sexual aggression are warranted by the empirical evidence, and there is little prospect of any consensus on the matter. Indeed, there is a notable lack of agreement over what degree and type of evidence would be sufficient to sustain—or rebut—the claims. Opponents of regulation will typically insist on controlled studies using the quantitative techniques of mainstream social science. Accordingly, a leading critic of regulation, Dworkin, contends that ‘no significant scientific study has concluded that pornography is a significant cause of crime’ (1996: 230).

On the other side, advocates of regulation often charge that a much broader array of evidence should be considered than is typically examined by mainstream social science. Delgado and Stefancic claim that ‘researchers fail to take account of certain types of evidence that, if counted, would tend to corroborate feminist claims’. They would include in the evidence correlations between pornography consumption and conduct considered socially ‘normal’, such as ‘aggressive flirting’ and ‘conspicuous leering’ (Delgado and Stefancic 1997: 34). Others would expand the evidence to include the personal accounts of sexually violent men who consume pornography and women who are their victims.

Insistence on controlled studies sets the bar unreasonably high, but sole reliance on personal accounts seems insufficient. Rapists may claim that they were provoked to act by their consumption of pornography, but they have self-interested reasons for making such claims. Moreover, the psychological causes of a person's sexual impulses are hardly transparent, even—perhaps especially—to the individual himself. And Delgado and Stefancic are simply speculating when they suggest the existence of significant correlations between pornography consumption and such behaviours as ‘aggressive flirting’ and between those behaviours and sexual assaults. Moreover, even if there were agreement that pornography did causally contribute to sexual (p. 367) aggression against women, there would be debate over the extent and normative implications of the marginal increase in sexual assaults caused by pornography.

4.2 Pornography and Equality

Aside from their complicated empirical aspects, disputes over the regulation of pornography involve competing conceptions of gender equality. MacKinnon argues that protecting pornography under the umbrella of free speech amounts to a failure to take gender equality seriously. The serious harm done to women by degrading sexual images is discounted by arguments that pornography merits the same protection as political or artistic expression.

Dworkin (1996: 237–8) argues that MacKinnon has misconstrued the idea of equality.

Because the moral environment in which we all live is in good part created by others … the question of who shall have the power to help shape that environment, and how, is of fundamental importance Only one answer is consistent with the ideals of political equality: that no one may be preventedfrominfluencing the shared moral environment through his own private choices, tastes, opinions, and example, just because these tastes or opinions dis- gust those who have the power to shut him up or lock him up.

Dworkin's argument would be more convincing if we lived in a world in which there were no systemic oppression or exclusion on the basis of such factors as gender or race. But in a non-ideal world, where the combined effect of the ‘private choices, tastes, opinions, and examples’ of many people is to put others at a severe, systemic and unjust disadvantage, it is hardly clear that equality prohibits some measure of official regulation in how those tastes and opinions are expressed. Such regulation is defended not ‘just because’ the tastes or opinions are disgusting. It is defended on the claim that the tastes and opinions contribute to systemic inequality.

Dworkin counters that such an approach would justify the regulation of television commercials, movies, and the popular media generally, which contribute to women's subordinate status. In fact, he may well be right that popular media contribute much more to that status than does pornography. His views reflect Feinberg's claim (1985) that pornography is primarily a symptom, not a cause, of violence and discrimination against women: the cause is a deeply entrenched system of'macho’ cultural values. And policing the popular media in order to eliminate gender inequality would mean a gender-totalitarian state. But it does not follow that it is wrong to regulate any form of expression that contributes to women's sub- ordination. Relatively narrow regulations that do no significant damage to the free communication of ideas and attitudes should not be ruled out of court on a priori grounds. Sunstein (1993) and Cohen (1996), for example, reasonably argue that the regulation of violent pornography should be considered permissible because it is ‘low-value’ expression that may cause gender-based injury.

(p. 368) 4.3 Pornography as Subordination

Recently, some feminist advocates of the regulation of pornography have developed a new line of argument, contending that the production and consumption of pornography are forms of discriminatory conduct that subordinate and silence women and, as conduct, should not receive free speech protection. MacKinnon (i993) pioneered this line of argument, but Langton (1993) has developed it using the ideas of speech-act theory.

To regard pornographic depictions as acts of subordination may appear to conflate a depiction with the object it depicts. Moreover, some philosophers contend that the idea that pornography silences women is a strained metaphor for a con- testable causal claim about the social effects of pornography on women's willingness to voice their views. But Langton seeks to vindicate the plausibility of MacKinnnon's claims about subordination and silencing. Langton concedes that depictions as such cannot subordinate, but she contends that they can be used to rank certain people as inferior and legitimize discriminatory treatment against them. Such uses amount to the ‘illocutionary force’ of pornography, as Langton sees it, borrowing a concept from Austin (1962). And she suggests that there is evidence that pornographic depictions are used in our society authoritatively to rank women as subordinates and rationalize the treatment accordingly. Moreover, Langton argues that it is plausible to think that pornography is used to disable women from successfully performing certain speech-acts. For example, a woman's refusal to have sex does not count as a refusal. Her utterance of'No’ is not taken to mean ‘No’: there is no ‘uptake’, and so she is effectively silenced, even if nothing is preventing her from vocalizing certain words. The woman cannot do with those words what she is intending to do—namely, to refuse sex.

Jacobson criticizes Langton by arguing that, if women were disabled from per- forming the illocutionary act of refusing sex, then we could not describe as ‘rape’ the act of a man who ignores a women's ‘No’ and proceeds to have sex with her. Jacobson also argues that whether a woman performs the speech-act of refusal does not depend on the idiosyncratic understanding of any particular man but rather on how a ‘competent auditor’—woman or man—would understand her utterance (1995: 78). Pornography does not silence women in the way Langton suggests, Jacobson argues, because competent auditors understand that women can and do use their words to refuse sex.

Moreover, it is questionable whether consumers regard pornographic depictions as authoritative pronouncements declaring that women ought to be sexual subordinates. Sadurski argues, ‘Recognition of the pornographer's special “authority” … does not seem to be a plausible description of the attitude held by pornography's consumers toward its producers’ (1999:132). Pornography is consumed for purposes of sexual arousal, not for receiving authoritative verdicts on the proper sexual role of women.

(p. 369) 4.4 Hate Speech in the USA

During the 1980s, a vigorous debate began over the legitimacy of regulating speech that degrades or demeans persons on the basis of such features as race, gender, and sexual orientation. In the USA, hundreds of colleges enacted speech codes that sought to restrict such speech. Many of the codes were challenged in court as inconsistent with the free speech guarantees of the Constitution and criticized by many scholars (Shiell 1998). But the codes were supported by other scholars, including those associated with Critical Race Theory, a movement that highlights the continued existence of racial oppression and the need for more aggressive legal and political strategies in combating it. (Lawrence 1993). Campus speech codes were also defended by some liberal scholars, who argued that narrowly drawn codes directed at face-to-face racist vilification were consistent with free speech principles (Grey 1991; Sunstein 1993; Greenawalt 1995a).

Some scholars went beyond the endorsement of campus speech codes. Delgado argued for extending tort law to cover the wrong of racial insult. And Shiffrin (1999: 161) contends that certain forms of racist speech should be punishable by law.

There are many parallels between the arguments for regulating hate speech and those for regulating pornography. Both sets of arguments stress the continued existence of subordination. Both point to the importance of symbolic expression in creating and perpetuating subordination. Both contend that our culture generally discounts and dismisses the harms suffered by subordinate classes. And both make their case for regulation on the basis of a principle of equal citizenship.

Yet, courts have struck down as violating free speech rights every campus speech code that has been subject to legal challenge. The decisions came from state and lower federal courts. The US Supreme Court has not ruled directly on the constitutional validity of campus codes, but in RAV v. StPaul (1992) the court did set out legal principles that would appear to condemn virtually all the codes that schools have adopted.

RAV invalidated a city ordinance that prohibited the public display of any symbol or sign ‘that arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender’ (RAV v. StPaul 1992: 379) The ordinance was interpreted as applying only to ‘fighting words', a form of expression unprotected under US law. Such words are traditionally defined as utterances that by themselves inflict injury or tend to incite immediate violence, although courts tend to read such a definition in a very narrow way.

In RAV the defendant was convicted under the ordinance after burning a cross on the lawn of a black family living in a white neighbourhood. The court threw out the conviction, without rejecting traditional fighting words doctrine. It held that the ordinance impermissibly selected certain categories of fighting words. Such selection reflected a particular viewpoint—namely, that certain kinds of fighting words are worse than others. The court ruled that such an approach amounts to impermissible viewpoint bias. Writing for the court, Justice Scalia argued that, (p. 370) when expression is regulated on the basis of viewpoint, it raises ‘the specter that the Government may effectively drive certain ideas or viewpoints from the market- place’ (RAV v. St Paul 1992: 387).

Shiffrin points out that one of the implications of the ruling in RAV is that it licenses a more sweeping regulation of expression than the ordinance that was struck down. The implication is that the city could enact a ‘pure’ fighting words ban that did not specify any particular category of such words. Such a ban would still cover the racist and sexist fighting words that the ordinance sought to prohibit and so ‘would drive the very same ideas and viewpoints (along with others) from the marketplace’ (Shiffrin 1999: 63).

But Shiffrin misses the central point in Scalia's analysis: the ordinance was an effort by the city to place an official stigma on certain viewpoints and attitudes. Selecting out certain classes of fighting words for prohibition was essential to the stigmatizing purpose of the law. A ‘pure’ fighting words ban would have under- mined that purpose. And, for Scalia, the use of criminal law to stigmatize certain viewpoints violates expressive liberty.

4.5 Hate Speech in Canada

Constitutional law in the USA is unique among contemporary democracies in the degree of protection that it provides hate speech. In Canada there is a statute making it a crime to communicate in public a statement that wilfully promotes the hatred of some racial, religious, or ethnic group, and virtually every other constitutional democracy apart from the USA has similar statutes. Such laws would be invalidated as viewpoint based by courts in the USA.

In R. v Keegstra (1990) the Canadian Supreme Court accepted the claim that the nation's racial hatred statute infringed on freedom of expression, a right protected under the Canadian Charter. But it held that expressive liberty must be balanced against racial equality and that the statute represented a reasonable balancing of those two values.

Sumner defends the court's view, arguing that tolerating expression that aims at fomenting racial hatred ‘would inevitably be to confer upon it a certain degree of legitimacy. This is something that no society can afford to do, if it wishes to safe- guard the status of minorities as equal citizens’ (1994:172–3). But in a regime of free expression it is essential to distinguish between tolerating a message and conferring legitimacy upon it. Official toleration is a stance in which society extends neither its authoritative approval nor its disapproval of a message. The Canadian hate-speech ban might be justified, but not because the failure to ban hate speech legitimizes racism. Rather, the ban would be justified only because it plays an important role in securing equal citizenship for all.

(p. 371) 4.6 Enforcing Speech Restrictions

Some critics of hate-speech laws point to the fact that they are rarely enforced and that, when they are, racial minorities are often the ones prosecuted (Magnet 1994: 238–9). Moreover, the anonymous and borderless nature of Internet communication will make the enforcement of rules against hate speech (and pornography) increasingly difficult. The difficulties are highlighted by a case in which a French judge ordered Yahoo's auction site to prevent web-users in France from gaining access to Nazi artefacts (Kaplan 2000). He ruled that French law prohibited dis- playing Nazi souvenirs for sale. But many critics doubted the feasibility of implementing the ruling.

It may be that, in the age of Internet communication, many laws against hate speech and pornography will turn out to be largely symbolic expressions of a nation's commitment to racial and gender equality. Enforcement maybe uneven and difficult. Yet, the simple fact that the law has authoritatively stigmatized certain views may well have a formative influence on social attitudes. As Kahan argues, laws help to ‘furnish cues about how individuals should conduct themselves to gain approval and to avoid the stigma of deviance’ (1999:487). Hate-speech laws may send a strong signal to society affirming equality and stigmatizing bigotry. The possibility of such a signal should give pause to those who see the underenforcement of hate-speech laws as sufficient grounds for rejecting them. But the same possibility also raises concerns over whether the laws are an unjustifiable departure from viewpoint neutrality. Again, free speech principles and egalitarian ones appear in some measure to conflict.

4.7 Campaign Finance Regulation

To protect against the corruption of the political process, a number of constitutional democracies have imposed legal limits on the expenditures of candidates and/or parties. Such countries include Britain, India, Israel, and Japan. In Britain, for example, expenditure limits on candidates have been in force since 1883 and operate in conjunction with a law prohibiting anyone from spending on a candidate's behalf without his specific authorization (Law Library 1991: 6, 72).

In the USA, though, the Supreme Court ruled in Buckley v. Valeo (1976) that expenditure restrictions violate free speech. When candidates and parties spend money on a campaign, they are expressing their political views. When government restricts the amount of money that can be spent on a campaign, it limits political speech, the kind that merits the fullest protection. And the court said that it was not a legitimate exercise of government power to restrict the speech of some in order to equalize the amount of speech across society. At the same time, the court ruled that contributions to campaigns may be legally restricted in order to prevent corruption and the appearance of corruption.

(p. 372)

Most commentators argue that the court's distinction between contributions and expenditures is not viable. If spending money to run a campaign is a way of expressing political views, so is contributing money to a campaign. Money is contributed so that it will be spent. Greenawalt—an advocate of expenditure limits—expresses the consensus: ‘The right to spend money to disseminate ideas is a significant aspect of freedom’ (1995a: 141).

Two of the central arguments in favour of expenditure limits invoke the idea of equality. The first holds that every citizen has an equal right to participate in the political process on a fair basis. Such participation includes voting, publicly expressing one's opinions, and running for public office. The one-person/one-vote rule is generally accepted—certain exceptions aside—and scholars such as Sunstein argue that ‘limits on campaign expenditures are continuous with that rule’ (1994:1392). Unlimited campaign expenditures in combination with the high cost of running a campaign mean that a candidate needs either to be independently wealthy or to rely heavily on wealthy individuals or organizations to mount a viable run for office. Such a situation violates the equal right of political participation.

The second argument contends that democracy should provide for the equal representation of the interests of all citizens. Some interests will lose in the democratic process, for example, because they are not sufficiently compelling or are outvoted by the majority. But in the democratic process all interests should matter and be weighed, in accordance with some reasonable measure of urgency or importance. The problem with unlimited expenditures is that they result in a system that skews the weighing process in favour of the interests of the wealthy. Christiano contends that campaign financing in the USA has created a society ‘in which the wealthy and powerful private economic institutions … dominate the process of discussion’. Such a society'simply cannot live up to the egalitarian ideals of democracy’ (1996: 286–7).

A third argument for expenditure limits connects them to democracy in another way. It holds that unlimited money in politics undermines the cognitive conditions necessary for a democratic public to make well-considered political judgements. Fiss makes this argument when he refers to ‘the distorting effect that unlimited political expenditures have on politics’ and asserts that ‘what democracy exalts is not simply public choice but rather public choice made with full information and under suitable conditions of reflection’ (1996: 25, 23).

Critics of expenditure limits claim that such limits face a series of dilemmas. If the limits apply only to the expenditures of candidates, then money will flow into political parties, which will use it to influence elections. If the limits are extended to par- ties, then money will flow to independent organizations such as environmental, pro-choice, and anti-abortion groups, who will use it to influence elections. Even if limits on candidates and parties were acceptable, critics argue, limits on independent groups would clearly violate free speech. In short, limits that are consistent with free speech would be ineffective at stemming the influence of money on politics, and limits that might have some effectiveness would violate free speech rights.

(p. 373)

Sullivan argues that the dilemma is only intensified because ‘campaign finance reform will do nothing to cure… the disproportionate influence on elections… of the owners and management of the institutional press'. More generally, because of large economic inequalities in society, ‘background wealth distortions cannot be prevented without trenching much further upon widely held First Amendment values than most reformers … are willing to go’ (1998:1086).

Sullivan does not deny that money can harm the political process. But she argues that under a system of unlimited contributions and expenditures, combined with mandatory and immediate disclosure of donors and amounts, there would be ‘reasons for modest optimism that the harm the reformers fear from unlimited political money would in fact be limited’ (1997: 689).

However, once it is assumed that the cost of campaigns creates conditions in which candidates are forced to rely unduly on the wealthy, it is difficult to see how disclosure requirements by themselves are going to limit the harm. The problem is not that we do not know exactly who is giving large sums to candidates and parties. The problem is that any viable candidate for public office will need to rely on such individuals or be independently wealthy himself. Disclosure requirements would not provide what is needed: alternative candidates free of the undue influence of large wealth.

Kaminer contends that the dilemmas generated by expenditure limits argue for public subsidies to ‘candidates who do not have personal fortunes or major party support’. The system would create a ‘financial floor, but not a ceiling, for candidates’ (Kaminer 2000: 38). Critics will respond that it should be up to each individual to decide whether and how much to support a candidate. Public subsidies force all tax- payers to support candidates, even those against whom they may want to vote. This argument has been successful in stopping Britain from adopting a system of subsidies (Law Library 2000: 73). However, the argument fails to consider that in a democracy political activity such as running for office is a public good: the activity helps to sustain a system whose benefits extend to all and cannot be limited to those who ‘pay’ for them through their political engagement. In such a system, the relatively minor incursion on the liberty of taxpayers is more than offset by the good of maintaining a working democracy.

But the subsidy option, regarded as an alternative to expenditure limits on candidates, supporters, and parties, does face some practical difficulties. The value of any given amount of money in a campaign is relative to the amount spent by one's opponent and her supporters. In the absence of expenditure limits, it is difficult to see how any realistic version of a subsidy programme would, by itself, significantly restrain the influence of money. Presidential elections illustrate the point: despite the fact that the law provides presidential candidates with generous subsidies, expenditures by national parties have had an enormous influence on presidential politics.

In 1843, Marx wrote that there was a fundamental conflict in capitalist societies between the political principle of equal citizenship and the economic principle that (p. 374) individuals have a right to the unlimited accumulation of wealth. And Marx was right that economic inequality could subvert political equality. But the conflict can be mitigated, short of instituting socialism. Expenditure limits and public subsidies are among the devices that can be used in combination to promote political equality.

5. Religious Liberty: Theoretical Issues

5.1 What is Religion?

Scholars of religion are sometimes sceptical of efforts to define ‘religion’. But even some sceptics could agree that the term can be reasonably understood as essentially referring to rituals, beliefs, and ways of life oriented towards a realm of existence or experience regarded as radically different from the realm of ordinary life and as carrying ultimate normative authority (King 1987: 283). This type of radical otherness is sometimes described as the sacred, and contrasted with the secular or profane.

While religions cannot be reduced to propositional attitudes, they often incorporate what Rawls (1993) calls ‘comprehensive doctrines’—that is, normative and metaphysical ideas about the meaning and value of human life. These doctrines are the grounds on which people orient their conduct, containing conceptions and principles that are taken to have normative authority over the full scope of human life. When the conceptions involve a sacred/secular contrast and vest supreme authority in the sacred, the doctrines are religious. When comprehensive doctrines vest supreme normative authority in a realm that is not conceived as sacred, they are secular.

Greenawalt objects to essentialist definitions of'religion’ on the grounds that they are too restrictive and vulnerable to a bias that favours familiar religions over unfamiliar ones. He contends that we should fix the reference of the term by beginning with the features of paradigmatic religions and then seeing ‘how closely disputed beliefs and practices resemble clear instances’. He insists that ‘no single feature is indispensable for religion’ (Greenawalt 2000: 219).

Greenawalt (2000: 207) is right to warn that defining ‘religion’ carries the danger that the familiar will be favoured over the unfamiliar, and his analogical approach seeks to accommodate the many different forms that religion can assume. But the requirement of an orientation towards the sacred leaves room for an abundance of varieties of religion. Moreover, Greenawalt's analogical approach carries the very danger he seeks to avoid: if we begin with paradigm cases and then look for other instances that are close enough to those cases, the extension we ultimately attribute to ‘religion’ may well be skewed by the fact that our starting point consists of those (p. 375) religions that are familiar to us. This skewing is especially likely when there are no articulated standards specifying the respects in which disputed cases must be judged similar to the paradigmatic ones.

Such bias may well be reflected in the statement of a German official that Scientology was ‘a multinational combine rather than a religion’ (US State Department 2000). For that official, the extensive business operations of Scientology may have made it too different from his paradigmatic religions. In contrast, ‘orientationto-the-sacred’ clearly counts Scientology as a religion, notwithstanding its business ventures.

If religion is to be understood in terms of paradigm cases plus whatever is sufficiently similar to those cases, then it would be better to enumerate the respects in terms of which similarity is to be judged. Thus, Alston takes the paradigm approach but also lists nine characteristic features of religion, such as belief in supernatural beings, the sacred/profane distinction, prayer and other rituals, and a life-organizing world view (1964: 88). To be a religion requires possessing some unspecified number of such features.

Greenawalt would probably be sympathetic to Alston's approach, as it is consis- tent with an important practical concern of his. Greenawalt thinks that the law should not define religion in terms of an orientation towards the sacred because it would omit groups such as Ethical Culture societies, which are organized around secular comprehensive doctrines. In his view, Ethical Culture merits equal legal protection with doctrines that invoke the sacred. But the US Constitution explicitly protects religious liberty, not freedom of conscience more broadly. So constitutional protection for Ethical Culture seems to require that it be a religion.

But, instead of stretching the idea of religion in order to gain protection for secular comprehensive doctrines, one could argue that the normative principles justifying protection for religion also justify protection for freedom of conscience more broadly. And one could contend that a constitution should be construed in terms of its underlying normative principles. Such an argument could gain protection for secular doctrines, but it would also cast doubt on the idea that there is, as a matter of fundamental political principle, something special about religion. That doubt is explored in the next section.

5.2 Arguments for Religious Liberty as Basic

Let us suppose that religion involves an inner orientation towards the sacred and its outward expression in speech, rituals, and forms of life. And let us grant that the freedoms of conscience, speech, and association are basic. Because such freedoms do not distinguish the religious from the secular, we can then ask, ‘Is religious liberty no more than a particular instance of the general freedoms of conscience, speech, and association?’ Or is religious liberty an independent basic liberty?

(p. 376)

The traditional arguments for religious freedom lend credibility to the idea that it is not an independent basic liberty. One prominent argument is that we should be especially distrustful of government when it comes to regulations that infringe on religious activity. Government has a tendency to attribute without good grounds malignant secular effects to the practices of unpopular and minority religions, or to exaggerate relatively trivial effects. Protecting religious liberty as basic guards against such ungrounded and biased judgements.

Such an argument parallels the one for regarding free speech as basic but does not establish any difference in principle between religious and non-religious expression. Government tends to attribute malignant effects to any system or association that it regards as a threat to its power or its view of the social good, regardless of religious or secular character of the threat. Whether religious ‘threats’ are perceived as more dangerous is an empirical question to be answered with respect to a particular social-historical context. And in modern times unpopular secular doctrines have also been subject to unwarranted claims of dangerousness.

Another traditional argument for treating religious liberty as basic asserts that leaving government free to restrict religion tends to foment civil strife. Failure to protect religious liberty raises the stakes in politics, and the struggle among the different sects will intensify as they vie for state power. This argument traces back to Locke: ‘it is not the diversity of opinions, (which cannot be avoided) but the refusal of toleration to those that are of different opinion… that has produced all the bustles and wars’ (1689/1983: 55).

Nonetheless, the argument does not establish any basis for religious liberty that is independent of arguments for secular freedom of expression and association. Secular strife is also a danger when government can suppress secular views and organizations. Moreover, the question whether religion is the most important threat to civil peace is empirical, to be addressed by each society and its particular circumstances (Smith 1991; Schwarzchild 1993).

Yet another argument stresses the importance of religion in promoting the civic virtues essential to a liberal democratic order (Galston 1991). But this argument elides the fact that religions take myriad forms, only some of which promote democratic virtue. Resting arguments for religious liberty on empirical claims that cannot be generalized to all religions is an unpromising strategy for establishing that religion merits greater protection than non-religion, as a matter of fundamental principle.

In the current literature, perhaps the central argument for religious liberty links it to individual autonomy. This should not be surprising, since the main argument for free speech is also autonomy based. Richards emphasizes the common root of expressive and religious liberty in the ‘inalienable right to conscience, i.e., sincere convictions about matters of fact and value’ (1999: 23). But this argument clearly erases the distinction between religious and secular conduct. Sincere convictions that form the basis of action can be about the sacred or about the secular.

Nevertheless, it remains possible that religious motivations have normatively important features that they share with some, but not all, secular motivations. (p. 377) Rawls's work suggests that actions motivated by a person's comprehensive doctrine—religious or secular—merit heightened protection because of the connection the actions have to the full development and exercise of the two moral powers of personhood: the capacity for a sense of justice and the ability to formulate, pursue, and revise a conception of the good (1993). Those powers are exercised, not whenever one acts on any given belief he happens to hold, but only when the belief is an element of the individual's ultimate normative orientation towards life. The term ‘liberty of conscience’ is appropriate in this regard, as a person's conscience is reasonably conceived as her most central normative conceptions.

Sandel criticizes the Rawlsian conception of personhood on the ground that it ‘depreciates the claims of those for whom religion is not an expression of autonomy but a matter of conviction unrelated to choice'. For many religious believers, their faith is not a matter of autonomous choice but rather reflects a categorical duty that they see as ‘indispensable to their identity’ (Sandel 1996: 67). But Sandel misses the mark. The claims of those who understand their faith as essential to their identity are given no less weight than the claims of those who see their faith as the object of an autonomous choice. The Rawlsian conception is that, however an individual understands her faith, her right to express that faith is a basic liberty. It is up to the individual to say what is, or is not, essential to her identity. That liberal right is no less important when the individual declares, ‘Here I stand. I can do no other.’

Freedom of religion is rightly considered to be a basic liberty, but there is nothing special about religion at the level of fundamental political principle. Rather, religious liberty is basic because religion instantiates more general aspects of human life and activity that merit such protection: speech, association, and conscience.

6. Religious Liberty: Applications

6.1 The Accommodation Debates

In 1972 the US Supreme Court held that Amish parents had afree-exerciseright to withdraw their children from public school before the statutory minimum age of 16 (Wisconsin v. Yoder, 1972). Yet today there is much disagreement whether the exemption is illegitimate because it denies Amish females the opportunity to gain the knowledge needed to make an informed choice about remaining part of a patriarchal culture. In 1989, after considerable controversy, the French government exempted Muslim girls from the school dress code to allow them to wear their religion's traditional headscarf, the chador. Yet, disagreement over the wearing of the headscarf in school continues today in much of Western Europe (Seiple 2000: 10). In 1990, the US Supreme Court ﹛Employment Division v. Smith, 1990) rejected the claim of members of the Native American church that they had a constitutional (p. 378) right to engage in their religion's ritual smoking of peyote. In response, Congress enacted a new law better to protect religious groups, and the Supreme Court in turn invalidated that law (Boerne v. Flores, 1997).

These cases all involve debates over ‘religious accommodation'—that is, claims to an exemption, based on one's religion, from an otherwise valid, general law. Many scholars contend that, in a broad range of circumstances, religious liberty requires government to provide accommodations when some general law or policy comes into conflict with a religiously motivated activity.

Advocates of extensive religious accommodations often look for reasons to show why religion is especially important and should be accorded privileged status. One prominent line of argument contends that religions provide grounds for resisting unjust and tyrannical states by recognizing a normative authority superior to secular authority (Carter 1993: 134; McConnell 2000: 1250). However, as with other arguments we have canvassed, this one fails to distinguish religious from secular comprehensive doctrines.

A distinct line of argument for accommodation rests not on the contention that religion is special but rather on the idea that accommodation is necessary to secure equal citizenship for religious persons (McConnell 1992). Thus, Galeotti argues that equal respect requires French officials to accommodate the Muslim schoolgirls. She contends that the case involved ‘the quest for public recognition’ by a religious minority and that such recognition is a ‘fundamental demand of equality’ (Galeotti 1993: 597)- This interest in public recognition is similar to the one Raz emphasized in arguing that free speech is important to those with unconventional lifestyles.

On the anti-accommodationist side, Marshall argues that religion-based exemptions give religious individuals special treatment and so violate equal citizenship. Thus, he objects to the disparity of exempting the Amish from compulsory school attendance laws on account of their beliefs but denying a similar exemption to ‘a group of Thoreauians whose objection would be based on social or political grounds’ (Marshall 1991: 316). And if religious liberty is taken as derivative of more general basic liberties, Marshall's Thoreauians should be treated in the same manner as the Amish: either both groups or neither should be given exemptions.

Nonetheless, there appears to be a serious dilemma with the idea that religious and secular doctrines should be treated identically when it comes to accommodation. Prohibiting all accommodation would seem to violate equal citizenship. Equality is not the same as uniformity and cannot be guaranteed by uniformity of treatment (Audi 2000: 40). Sometimes a person's deepest normative convictions make his situation relevantly different, as with the Native American peyote smokers or those whose Sabbath observance prevents them from taking a job that unemployment or welfare laws would otherwise require them to take. But, if religious and secular doctrines are treated on a par, then it seems that the result would ‘make a mockery of the rule of law’ (Nussbaum 1999: 111). Too many claims of accommodation might need to be granted, as both religious and secular groups press for (p. 379) exemptions. Thus, Nussbaum contends that, as a practical matter, we must choose between providing exemptions only to religiously motivated conduct or having no exemptions at all. And she argues for the former on the basis of the traditional vulnerability of minority religions.

But Nussbaum is not entirely convincing. Religious minorities have been historically vulnerable, even in constitutional democracies, but so have secular minorities, such as Communists. Moreover, constitutionally required religious accommodations have not been extensive, restricted mainly to matters of schooling and unemployment compensation. Extending equal protection to secular doctrines would threaten the rule of law only if much more extensive religious accommodations were recognized.

Moreover, legal rulings have counted certain secular doctrines—such as Ethical Culture and secular forms of pacifism—as equivalent to religion, as Greenawalt endorses (2000:208–9). Although this judicial stretching of'religion’ involves a legal fiction, legal thinkers could still reasonably contend that heightened protection for religious and secular comprehensive doctrines is important for promoting the moral powers of personhood.

Today, many constitutions differ from the US Constitution in explicitly protecting freedom of conscience and not simply religious liberty. Indeed, Article 4 of the German Constitution exempts from armed war service all conscientious objectors, drawing no distinction between secular and religious objections. And it is reasonable to think that a feasible arrangement exists that treats religious and secular doctrines equally, while providing both kinds of doctrine with heightened protection and avoiding harm to the rule of law.

6.2 Religion and Politics

Related to the accommodation debates is the question whether theological claims can play a legitimate role in public political discussion and decision making. Several key thinkers argue that theological claims are, in certain respects, inappropriate for public debate and decision. These thinkers do not contend that individuals should be legally barred from making religious contributions to public debate. But they argue that persons should exercise self-restraint when it comes to such contributions so as to respect the equal standing of their fellow citizens. Thus, Audi argues that citizens should not support any coercive law unless they are motivated by ‘adequate secular reasons’, such as public health and safety (2000: 86–96).

Rawls (1993) contends that norms of equal citizenship require each person to bracket her belief in the truth of her own comprehensive doctrine when discussing and deciding constitutional questions and issues of basic justice. Equal citizens address such matters on grounds of public reason—that is, grounds that they can reasonably expect all their fellow citizens reasonably to endorse in principle. Rawls (p. 380) treats religious and secular comprehensive doctrines on a par and provides for an important exception to the bracketing requirement: comprehensive doctrines may be introduced when they help to bring about or secure free and equal citizenship for all and the arguments based on those doctrines are supplemented ‘in due course’ by ones that are not particular to any sectarian world view (1999:152–5).

Greenawalt argues that ‘comprehensive views… can appropriately figure in resolution of the broad range of political issues that ordinary citizens face’, with the proviso that when citizens argue in the public forum for a political position they should emphasize reasons that their fellow citizens can share. Legislators may give some weight to positions of their constituents that are based on comprehensive views. But, because legislators should represent all their constituents with equal respect, they ‘should probably afford more weight to a citizen position that is grounded in public reason’ (Greenawalt 1995b: 160–1). Judges should exercise the greatest restraint and generally decide cases based on reasons that are ‘shared in our political culture’ (Greenawalt 1995b: 146).

Perry (1997) rejects restrictions on religious arguments in public discussion and argues that the idea of the sacred value of life is an admissible ground of official decision making apart from any secular rationale. However, he otherwise deems it inappropriate for officials to make decisions about human well-being on religious grounds when there is no plausible secular basis for the decision.

Wolterstorff contends that liberal views such as those of Audi, Rawls, and Greenawalt have led to an unfortunate ‘silencing of religion in the public square’ and fail to treat religious citizens as equals (1997:177). Quinn adds that the public airing of religious considerations has the virtue of encouraging a public dialogue in which unexpected agreement emerges and people develop their own views more adequately as a result of ‘contact and confrontation with an alien religion or meta- physics’ (1997: 158). Likewise, Carter contends that public dialogue in which religious argument is welcomed could help persons to learn from others with different epistemological suppositions (1993: 232).

In assessing this complex debate, it is crucial to understand the liberal conception of equal citizenship and to ask whether the anti-liberals provide a viable alternative. When citizens call on government to deploy its coercive powers, the liberal norm of equal citizenship places on them an obligation to provide a justification resting on grounds that their fellow citizens can in principle accept. For example, reasons of public health are ones that all citizens can accept, notwithstanding the diversity of religious and secular comprehensive doctrines. Moreover, citizens generally accept the methods of empirical inquiry that are capable of providing reliable evidence about claims concerning public health. Thus, disagreement over whether a particular law is needed adequately to protect public health is one that proceeds from a broad area of common ground, and thereby conforms to the norms of liberal equality.

In contrast, reasons of personal salvation are not ones that all citizens can accept, in part because the faith of many believers holds that salvation is not among the (p. 381) matters that government can competently or legitimately address. And citizens of faith will disagree sharply over the appropriate methods of determining the right road to salvation. Reasons involving secular ideals of personal moral perfection— for example, the Stoic ideal of an individual indifferent to his fortune or misfortune— will also fail the test of liberal equality. Many citizens will be unable to accept them because they hold conflicting ideals of moral perfection.

Liberal equality does not obligate anyone to refrain from giving voice to their comprehensive views in political discussion. Nor does liberal equality obligate anyone to refrain from supporting a coercive law if they have sufficient sectarian reasons. But, if they do have such reasons, liberal equality obligates them to refrain from supporting the law for those reasons: they should not support the law unless they also have reasons that their fellow citizens can share.

The liberal conception of equal citizenship is an ideal. Reasons and methods of enquiry that can be shared by literally every single citizen will be impossible to find. But, for the liberal, that is a matter of a regrettable gap between the ideal and the real. If anti-liberals do not regard it as such, they need to develop a viable alternative to the liberal conception of equality. And, if they do regard it as such, they need to explain why they do not turn out to be liberals after all.

7. Speech, Religion, And Equality

Discussions of freedom of speech and religion often assume the existence of a democratic order devoid of explosive ethnic tensions and oppressive social hierarchies. That assumption is challenged in part by critical race theorists and radical feminists, who assert that Western democracies are riddled with racial and gender oppression. But, regardless of the truth of that assertion, it is undeniable that there are democracies riddled by oppressive hierarchies and violent ethnic conflicts. And it is important to examine how the principles of expressive and religious liberty should be applied under conditions that fall egregiously short of the ideal of free and equal citizenship.

In his examination of India, Jacobsohn argues that caste inequality and religious violence make it reasonable to restrict religious association and speech there in ways that would be unacceptable in other constitutional democracies. Indian electoral law prohibits candidates from promoting ‘feelings of enmity or hatred between classes of citizens… on grounds of religion, race, caste, community or language’ (Jacobsohn 2000: 297). The Indian Constitution protects free speech and religion, but the Supreme Court has held that a leader of an extremist Hindu party could be barred from standing for election because of campaign rhetoric directed against Muslims. The court invoked a constitutional provision providing a ‘public order’ exception to free speech protections.

(p. 382)

Jacobsohn endorses the court's view but goes further to contend that it has not been vigorous enough in enforcing another provision of Indian electoral law that prohibits any candidate from appealing for votes on the basis of his race, religion, or caste. Indian constitutionalism, argues Jacobsohn, is committed to the elimination of the culture's traditional structural inequalities, and the electoral provision has a logic that can be defended on grounds of its consistency with such constitutionalism. More broadly, his point is that the principles essential to constitutional democracy—such as freedom of speech and religion—should be interpreted and applied in a manner that is sensitive to the social and historical context of each country.

Tamir (2000) takes a similar tack in discussing Israel, where the law prohibits a party for standing for election if it intentionally incites racism. She defends a ruling of the Israeli High Court barring the virulently anti-Islamic Kach Party, even though the speech in question involved readings from biblical passages. On her view, religious hate speech in the Israeli context amounts to fighting words that ought to be banned on account of the potential to ignite violence.

The realities of caste in India and Jewish/Palestinian conflict in Israel make issues of expressive and religious liberty harder cases than they typically are in democracies where the gap between the real and the ideal is not nearly as wide. Interpreting such liberties in ways that would entrench caste inequality or generate widespread religious violence would be a mistake on practical and moral grounds. Religious and expressive liberty are elements of the ideal of free and equal citizenship, and social progress towards that ideal, where the reality falls egregiously short, should not be undercut by the context-blind insistence that rights are trumps over collective goals.

Nonetheless, the incursion on basic liberties found in Israeli and Indian electoral law are substantial, because the laws deny to certain groups the right of political association based on their religious speech. This incursion is far greater than that of the hate-speech laws found in Canada and most other democracies. Thus, laws that ban extremist religious parties should face a high burden of justification, requiring clear and convincing evidence that the laws are needed to make progress in mitigating caste-like inequality or to forestall widespread violence. Neither Jacobsohn nor Tamir makes the case that such evidence is available.

8. Conclusion

For much of the twentieth century, thinkers developed and invoked the ideals of freedom and equality to combat social disadvantage linked to race, gender, and class. But the meaning and implications of the ideals are not transparent, and debates have emerged as to whether they require society to tolerate forms of expression that demean and degrade on the basis of race, religion, and gender. Moreover, (p. 383) theorists have recently taken up issues concerning the equal treatment of persons whose religious convictions have political implications.

The task of future work lies in three main areas. First, in the area of ideal theory, there is need to clarify the scope and nature of expressive and religious liberty through further examination of the ideal of free and equal citizenship. Second, in the area of non-ideal theory, there is need for sociologically informed work that examines how the political ideals of freedom and equality should guide law and policy under the real conditions of social life. Third, there is need for comparative analyses, exploring the various forms that constitutional democracy takes in different coun- tries and how that variety illuminates questions of ideal and non-ideal theory.

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                                                                                                                                                    Cases Cited

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                                                                                                                                                      Buckley v. Valeo, 424 US 1 (1976).Find this resource:

                                                                                                                                                        Cohen v. California, 403 US 15 (1971).Find this resource:

                                                                                                                                                          Employment Division v. Smith, 494 US 872 (1990).Find this resource:

                                                                                                                                                            R. v. Keegstra, 3 SCR 647 (1990).Find this resource:

                                                                                                                                                              RAV v. StPaul, 505 US 377 (1992).Find this resource:

                                                                                                                                                                Wisconsin v. Yoder, 406 US 205 (1972).Find this resource: