This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Jeffrey Pojanowski (Notre Dame) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:
Consider two very different works of art. The first is the 1943 Norman Rockwell painting, Freedom of Speech. There, a workman in a New England town hall stands resolute amid his nattier neighbors, preparing to say his piece. The painting’s model was the Arlington, Vermont farmer, Jim Edgerton, the sole dissenter to the town selectmen’s decision to build a new school. This painting, one in a series commemorating Roosevelt’s “Four Freedoms,” links freedom of speech with republican self-governance, deliberation about a shared good, and an idea of equality that elevates the dignity of the common man to the plane of his more aristocratic fellow citizens. Edgerton’s mien is reminiscent of Lincoln.
The second is a 2002 Joseph Frederick banner, 14-feet-long and emblazoned with the message “BONG HiTS 4 JESUS.” This banner, which the Juneau, Alaska high school senior created just before he displayed it at an Olympic torch parade, was, in the words of its creator, “just nonsense meant to attract television cameras.” The Supreme Court of the United States explained that this message, displayed at a school-sponsored event, could be reasonably understood as advocating illegal drug use, but it was “plainly not a case about political debate over the criminalization of drug use or possession.” Over a vigorous dissent, the Court held that the First Amendment did not prohibit Frederick’s school from disciplining Frederick. Frederick’s claim links free speech with a bare right of self-expression, even if the message that the autonomous self seeks to assert is admittedly “nonsense.” Frederick is reminiscent of Cartman.
Frederick could be forgiven for thinking he could prevail, which he did before the Court of Appeals. The Supreme Court has interpreted the First Amendment as protecting lying about military honors, virtual child pornography, and crush films (don’t google the term). Now, this protective agnosticism in the Court’s doctrine need not reflect a deep skepticism about truth or beauty; it could flow from a sincere interpretation of the Constitution’s positive-law strictures or reflect prudential worries about empowering government to limit speech. There are many threads in American free speech jurisprudence and culture. Even so, one of the more vibrant ones is the notion that expression is good for its own sake, is self-constituting, and that interferences with, or even judgments about, such autonomous expression in the name of standards outside the self are unjustified and tyrannical.
This thread in jurisprudence and culture has given rise to powerful post-liberal critiques of free speech. Neutrality, the argument goes, is impossible because it presupposes this postmodern celebration of standard-less self-assertion and substantively demands its enforcement through law and culture. Alternatively, even if it does not share such premises, it is no defense against that worldview’s imperialistic designs. To invoke Fr. Richard John Neuhaus’s “law”: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.” This debate about the compatibility of liberal legal forms like free speech protections and non-liberal culture is challenging, fascinating, and important, and I am hesitant to claim I have anything important to add, especially through short-form scholarship. Rather, I would like to suggest that even those who celebrate—or regard as irreversible—modernity’s departure from more fixed, prescriptive ways should pause before drawing a straight line from liberal individualism to free speech libertarianism. (A caveat: I am operating here primarily at the level of normative argument, not legal doctrine. I don’t claim, and am not qualified to claim, to offer an argument about the best reading of the First Amendment and/or its subsequent implementing doctrines.)
Before sketching this argument, let’s first excavate the assumptions of the modern worldview in which free speech is so naturally at home. Here I would like to draw on Charles Taylor’s Ethics of Authenticity. In this short series of lectures, he draws a contrast between the “knockers” of modernity and its “boosters”—both of whom presume the current dispensation is one of radical individualism that precludes shared reasoning about ends. One side despairs of this disenchantment and the other welcomes it as a form of liberation and radical self-creation. Against the knockers, with whose laments he sympathizes, Taylor believes there is no “going back” to pre-modern unity and wholeness—a position consistent with his argument in A Secular Age. More importantly for our purposes, however, is his critique of the boosters who would unmoor authenticity from anything besides the whims and desires of the unencumbered self.
In particular, Taylor identifies a tension within the modern understanding of the self and society. On the one hand, the contemporary culture of authenticity involves “creation and construction,” “originality,” “opposition to the rules of society,” and “even potentially to what we recognize as morality.” On the other hand, Taylor contends, authenticity demands more of the person. It requires “openness to horizons of significance” and “self-definition in dialogue” with others.
These latter two phrases require a bit of explanation. As to the “horizons of significance,” he contends that human action is meaningful and understandable only against a shared “background of intelligibility” we cannot ourselves create. “I cannot claim to be a self-chooser, and deploy a whole Nietzschean vocabulary of self-making, just because I choose steak and fries over poutine for lunch.” Authentic choices, as opposed to the trivial act of mere choosing, depend on a “background of things that matter” that I cannot choose. As to “self-definition in dialogue,” Taylor contends we can only develop and define ourselves, and find meaning in our lives, in relation with others. There is no such thing as a private language, even if there are distinctive, even extraordinary, speakers. The same, Taylor contends, holds for identity more generally. As he puts it, even the hermit seeks to relate with God and the solitary artist creates for a future audience.
A healthy understanding of authenticity, Taylor maintains, strives to manage these antinomies, rather than eliminate one. True authenticity is incompatible with relativism and the valorization of choice for its own sake. In accord with the “knockers” of modernity, however, Taylor worries contemporary culture has embraced a deviant understanding of authenticity that overemphasizes the first pole. This pathological strain of authenticity, which he calls “self-determining freedom,” manifests itself in high culture in Nietzsche’s “negation of all horizons of significance” and in poststructuralist ideals of “free play” or “aesthetics of the self” in a world “that imposes no standards.” In pop culture, it is the mawkish romanticism of Dead Poets Society and the commonplace phrase ‘you do you.’ It expresses itself in First Amendment doctrine in Justice Harlan’s nostrum that “one man’s vulgarity is another man’s lyric.”
A healthier understanding of autonomy, on Taylor’s terms, illuminates the difference between Freedom of Speech and BONG HiTS 4 JESUS. At the first pole, Jim Edgerton is in an important sense singular: he is dressed differently, is the only working-class person in the audience, and is the sole dissenter from a popular plan. At the second pole: he is speaking to, and trying to convince, his fellows on a matter of shared concern. Joseph Frederick interjects a nonsensical (most charitably, “playful”) message at a community event because he wants to be on television. We can draw similarly unflattering comparisons to lying about military commendations or disseminating virtual child pornography. A free speech culture that treats the two categories as indistinguishable appears to have veered away from the creative tension that Taylor sees as necessary for a healthy culture of authenticity.
This appreciation for the two poles of authenticity can also illuminate discussions of hate speech, one topic of this symposium. (Again, all this analysis is contingent on accepting the premises of the modern condition as Taylor has excavated them. I am doing so now merely for the analytical purposes of seeing where a plausible diagnosis of the current dispensation leads us.) To keep with the Taylorian theme, we can see tensions. On the one hand, to the extent a horizon of significance makes meaningful, authentic choice possible, punishing as “hate speech” discussion that touches on matters of ultimate concern is deeply troublesome. True authenticity is impossible if we are only free to speak of things that others approve of or view as indifferent; we’re left with the discursive equivalent of the freedom to choose between steak and fries or poutine.
On the other hand, the culture of authenticity may well be what has generated demands for penalizing hate speech in recent decades. Taylor argues, persuasively, that the politics of recognition and identity were irrelevant in a bygone time where persons’ social roles were fixed. For better or worse, we knew who we were and what was owed to us. When we are responsible for developing our unique selves, and when there is no pre-set understanding of social role, status, and purpose, the risk of loss of recognition becomes greater. Failure to respect, affirm, or approve is not a mere difference of opinion, but can be seen as a challenge to the validity or, at some metaphorical level, “existence” of the self-created self. If part of healthy authenticity is understanding and forming ourselves dialogically with others, speech becomes less than mere words. We are back to an honor culture where the wrong words are socially actionable, but without the fixed forms that help us navigate what we can safely say to whom.
Thus, the two major features of the healthy variant of authenticity cut both ways on hate speech. It’s possible that what Taylor views as the deviant, “self-determining freedom” variant is more forgiving of “hate speech” given its agnosticism about moral judgment. I am not sure we reconcile this tension in healthy authenticity between the freedom to engage matters of concern and the fraught politics of recognition. But perhaps, and most tentatively, a Taylor-inspired thinker might be able to manage it on the ground. Contrast here a Lutheran preacher who publishes a pamphlet defending traditional Christian teaching on sexuality, and church members that sensationally protest military funerals to proclaim the soldier’s death as God’s judgment of America’s toleration of homosexuality. (If you like, substitute the publication of a strident, mocking atheist tract compared to erecting a billboard with desecratory artwork across the street from a parochial school.) The more the speech on matters of significance engages the other in dialogue as a responsible person amenable to reason and choosing, as opposed to a useful and contemptible object to dunk on, the stronger the case for protection. More Edgerton, less Frederick.
What makes such a (fragile, perhaps unmanageable) distinction plausible? Perhaps it is the notion that the claims of identity and recognition reach their limit when the person demands respect simply for being who he is, without questions asked. After all, authentic self-definition is trivial if it is limited to the bare ability to choose because one has chosen it, as opposed to choosing for reasons beyond the self.