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.)

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 Richard Ekins (Oxford) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Some features of liberalism in a censorious age 

The nominal promise of liberalism is political fairness and, relatedly, social peace, in which persons with different religious, moral, political, and philosophical commitments will be free to live as they please. The promise is illusory insofar as one cannot coherently exclude questions about the good from public life, including from (deliberation about) the exercise of public power. And in fact, we do not live in a golden age of freedom of conscience or freedom of speech. On the contrary, we live in an increasingly censorious age, as Jonathan Sumption puts it,[1] in which uniformity of thought or opinion is sought by way of abuse of dissenters in the press or social media, or by direct public (legal) action. This short paper reflects on some developments within liberalism, understood loosely as a tradition of political thought and practice, which may help explain the censorious temper of our times and the way in which religion and hate speech are understood.

In one influential form, political liberalism aims to bracket questions about what is truly worth acting for – questions that involve controversial substantive commitments – and instead to ground law and government on thin propositions that are fair to all comers. For Ronald Dworkin, the fundamental principle of political morality is that government should show equal concern and respect to all persons. This requirement, he says, rules out public actions that entail or presuppose the judgement that some way of life is vicious or debased and/or that some moral choices are truly better than others. Public actions of this kind, Dworkin maintains, fail to show equal concern and respect.  

This line of argument forms a main element in the jurisprudence of contempt,[2] in which a court or jurist reasons that to act on moral grounds is to act unfairly, in a way that is incompatible with the respect for persons and the freedom that equality demands they enjoy. Judicial review of legislation is justified, on this view, in order to police majoritarian legislatures, who are otherwise tempted to act unfairly, double-counting the preferences of some citizens about how others are to live, and/or reducing others to the status of second-class citizens by rejecting their commitments. The argument is unpersuasive because one cannot avoid the need for moral judgement in lawmaking and governing and to act for what one sincerely takes to be the good, including the good of the person one limits or punishes, in no way involves contempt for those who think otherwise.[3] Further, the argument wrongly frames the reasons on which a legislature acts as preferences, which have a place in collective action only insofar as fairness permits. The aim is to disbar political unfairness; the effect, even if the proscription were applied evenly,[4] would be to prevent justice.  

What is important to note, I think, is (a) the reduction of reasons to preferences and (b) the claim that in acting on (controversial) moral reasons one displays contempt for others. The upshot is that political liberalism is primed to see moral action as an insult or an unfair abuse of process. It is no surprise then that the moral significance of intention is often lost from view, with actions sometimes branded discrimination or harassment regardless of the intentions on which the person acted, per the premise that our actions are often sub-rational with real motivations hidden from us. [5] It is thus easy to frame those with whom one disagrees, or fears, as irrational and in need of correction.