On Liberalism and Rights…Free Speech, for Example

Let me say at the start that I find much of Michael Sandel’s critique of Rawlsian liberalism quite convincing. I don’t think I agree with Sandel on everything, but this rather important structural critique is significant. While such a critique might sound like it supports a politically conservative perspective, I think it is also vital for a progressive one. It seems to me that traditionalists and progressives might share in this critique of Rawlsian liberalism.

The negotiation of rights without consideration of the good is thoroughly problematic. A good example of this can be seen in discussions about the right to free speech. I’m not casting into question the current legal rationale and precedent for preserving and protecting the 1st Amendment. I have often gotten responses to this view that explain current legal precedent and reasoning, which I understand well enough. I should probably be more clear: I’m not asking whether or why certain things are currently permitted by the US’s liberal rights framework but whether what is currently permissible should be. That is, whether our current reasoning is good. Also, I’m certainly not saying that freedom of speech isn’t critical for democracy. In fact, even in the example below I’m not advocating for free speech to be prohibited. I’m interested in criticizing the liberal reasoning behind the defense of it.

For me, a la Sandel, the problem with liberalism is rooted in a question about the priority of the right over the good. It’s a criticism of liberalism’s operative abstract posture (which no amount of detailed description of a case can overcome) – one of moral neutrality.

If a neo-Nazi group wanted to parade through a predominantly Jewish neighborhood (this is intentionally a thought exercise, not an attempt to discuss the actual Skokie case), dressed in full regalia and symbolism, would it have the right? In the US yes, most likely, unless the threat of violence was too great (or something like that). However my question is whether or not it should be able to do so, apart from the constraints of our current legal reasoning.

The liberal mindset, with its metaphysical individualism, claims the state ought to remain morally neutral about such issues. That is, the state will not decide such issues on moral grounds. Such cases are rather a matter of individual rights, backed the state, and these can only be curbed if and when they interfere with the individual rights of others. Here is a clear display of liberalism’s priority of the right over the good (and of the individual, for that matter).

I don’t think this is actually a morally neutral position, however, and the guise of such is somewhat disingenuous. Even though the liberal view claims neutrality it cannot maintain it: the state acts (or is at least willing to act) to secure and defend the Nazi group’s parade. In so far as it is stands ready to deploy the power of the state to protect such an event it isn’t quite accurate to say its position is morally neutral. The state has determined that having the parade is a right and preventing or interfering with it is a wrong.

I suppose a liberal could claim my use of the terms right and wrong here is improper, charging them with moral meaning they aren’t intended to carry. I disagree with this, though, because these words very basically designate what is permitted and what is not. The attempt to de-moralize them is a further attempt to remain morally neutral. I don’t think a morally neutral position ever exists. Every act, because it is made for reasons and has consequences, is therefore inescapably moral. Liberalism has attempted to avoid this by casting the morality on the private individual, but I don’t think it’s so simple.

I think Sandel is right to argue that this impasse – one side claims it is (and should be decided as) a moral issue while the other side claims moral neutrality – impoverishes public discourse and real substantive debate on the issue itself. The Rawlsian liberal desires a thin theory of the good and, along with it, the prevention of religious and moral reasoning to determine such cases.

What I see to be a more appropriate and perhaps more honest explanation of the liberal decision is that it has been determined that it is good – that the state is better – to allow for such a parade. Such a position could be supported by an argument that claims the allowance for free speech, including potentially offensive speech, makes for a better state because a diversity of expressed opinions is good. It could also be considered good that such an allowance is the best way to fend off totalitarian regimes. Either of these arguments is better than appealing to the negotiation of individual rights because it forces the state to determine why it is good to allow for such speech generally and then – this is critical – why and how this specific case is relevant to that general determination. That is, it isn’t enough to say, “free speech is a good to society, thus all free speech in every instance is good for the same reason.” Here at least a discussion can actually take place as to whether the neo-Nazi group should, on the grounds that it is good to allow for it, be permitted to parade in this neighborhood rather than merely resorting to the appeal to rights. I’m certainly not saying this makes decisions any easier or straight forward. In some ways it complicates them, but from my view it also improves them.

The claim that curbing the most offensive speech between citizens sets us on a slippery slope of overreaching government censure seems overly alarmist. We already do some of this in part with libel, ‘fighting words,’ etc. The fatalist (slippery slope) line of thinking that casts the decision as all or nothing – either we allow the Nazi parade or we usher in the end of free speech – is the liberal corner these decisions get backed into. It’s not the only way to decide them. It could be determined just as easily that, because of the nature of this particular vile and harmful display of free speech, such a display isn’t good for society. Even while the liberal line of thinking rejects such overt moralizing, I think it is inevitably guilty of a covert form of it anyway.

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