Democratic legitimacy, political speech and viewpoint neutrality

Abstract

The purpose of this article is to consider the question of whether democratic legitimacy requires viewpoint neutrality with regard to political speech – including extremist political speech, such as hate speech. The starting point of my discussion is Jeremy Waldron’s negative answer to this question. He argues that it is permissible for liberal democracies to ban certain extremist viewpoints – such as vituperative hate speech – because such viewpoint-based restrictions protect the dignity of persons and a social and moral environment of mutual respect. According to Waldron, well-drafted narrow hate speech bans are not democratically illegitimate, and they do not undermine systemic democratic legitimacy – that is, the legitimacy of a democratic political system. In contrast to Waldron, I will argue that democratic legitimacy requires viewpoint neutrality to respect persons as thinking agents. I will defend a civil libertarian doctrine of viewpoint neutrality, and this doctrine requires that citizens in liberal democracies ought to have a legal free speech right to do moral wrong – that is, a legal right to express and defend any political viewpoint or idea, even if it is morally wrong to express, or expose others to, such views. It will be argued that any viewpoint-based restriction on public discourse (including narrow hate speech bans) is democratically illegitimate, and that such restrictions undermine systemic democratic legitimacy.

Toleration, Respect for Persons, and the Free Speech Right to Do Moral Wrong

“…If one accepts the doctrine of viewpoint neutrality, political toleration in a liberal democracy requires that citizens ought to have a legal free speech right to do moral wrong. This right to do moral wrong contains, at least, two important and related elements (Ekeli 2020). First, viewpoint neutrality requires that citizens should have a legally protected liberty to express and defend any political and religious viewpoint or idea within public discourse, even if it is morally wrong to express, or expose others to, such views.…”

“…On the one hand, one can, as Heyman and Quong do, argue that respect for persons requires viewpoint-based restrictions on recognition-denying speech. On the other hand, one can argue that respect for persons requires viewpoint neutrality and the associated legal free speech right to do moral wrong (Ekeli 2020).…”

“…This exception clause means that if a speech act silences or aims to silence others in a way that constitutes a violation of other persons' basic right to participate in public discourse, then such speech acts fall outside the scope of the free speech right to do moral wrong. One can argue that speech acts that fulfill one of the two following conditions can silence others in a way that amounts to a violation of the right to participate in public discourse (Ekeli 2020). It is important to point out that even though these conditions open the door to prohibit certain speech acts, these prohibitions are not viewpoint-based restrictions on public discourse.…”

“…Respect for persons is a Janus-faced requirement that can be cited on both sides in these debates about toleration and the scope of the right to participate in public discourse as speakers and listeners. On the one hand, one can argue that respect for persons requires that liberal democracies should tolerate the expression of any political or religious viewpoint within public discourse (see, e.g., Dworkin 1996Dworkin , 2009Brettschneider 2012;Ekeli 2020). On the other hand, one can argue that respect for persons or the dignity of persons requires certain viewpoint-based restrictions on extremist speech (see, e.g., Heyman 2008Heyman , 2009Quong 2004Quong , 2011Waldron 2012).…”

“…In contrast to Heyman and Quong, one can argue that a strong case can be made for viewpoint neutrality on the basis of what can be called a libertarian or Nozickean status-based theory of rights. According to this theory, toleration in a liberal democracy requires respect for the status of persons as thinking agents, and respect for thinking agents and their sovereignty over their own mind requires viewpoint neutralitythat is, a basic right to participate in public discourse as speakers and listeners free from state-imposed viewpoint-based restrictions (Ekeli 2020). All personsincluding radical extremistsshould have a basic right to express, hear, and consider any political or religious viewpoint within public discourse.…”