Beyond Liberalism: The General Paradox of Evaluative Neutrality and Normative Theory
The paradoxical relation between the putative right of freedom of expression and the political philosophy of liberalism that is the natural home of such a right is not just a product of liberalism’s internally paradoxical stance with respect to illiberal religion, association, and expression.
Freedom of expression is paradoxical within any plausible normative theory. That is because the requirement of evaluative neutrality is the core of any right of freedom of expression, but evaluative neutrality cannot coexist with any normative theory. Any normative theory, liberal or not, will perforce take positions on what ought to be done given our best judgment of what the world is like. To the extent that expression through its message or through its Track Two effects threatens to produce states of affairs inconsistent with those the normative theory prescribes, to that extent the normative theory must, as a matter of logical consistency, rule the expression to be pernicious and of negative value. To paraphrase Locke regarding religion, every normative theory is orthodox unto itself.84 And no orthodoxy can treat heterodoxy as acceptable. The only expression that a normative theory can regard as valuable is expression that produces effects consistent with what the theory demands. And from no normative theory can one derive a right to engage in activities, expressive or otherwise, that will undermine the theory. Only a normative theory that ranked the right to freedom of expression as lexically superior to all the other rights and interests that expression might undermine is logically capable of underpinning a human right of freedom of expression. And even that theory would face a paradox in dealing with expression that threatened to undermine it.83
Steve Smith labels Justice Jackson’s endorsement in West Virginia State Board of Education v.
Barnette of the principle of evaluative neutrality “Barnette’s big blunder.”85 As he puts it, “[F]or all of its initial appeal, the ‘no orthodoxy’ position [evaluative neutrality] is self-contradictory, impossible to implement, and radically incongruent with the way governments in this and other countries have behaved or could behave.”86 The previous discussion has shown Smith to be correct, not only with respect to freedom of expression, but with respect to freedom of religion and association as well. And yet, evaluative84 See John Locke, “A LetterConcerning Toleration” (1689), reprinted in J. Horton and S. Mendus, eds., John Locke: A Letter Concerning Toleration 24 (1991): “For every church is orthodox to itself; to others, erroneous or heretical.”
85 Steven D. Smith, “Barnette's Big Blunder,” 78 Chicago-Kent L. Rev. 625 (2003).
86 Id. at 642. See also T. M. Scanlon, The Difficulty of Tolerance 162-3 (2003):
My theory not only proposed a set of constraints that prevented certain kinds of balancing in the application of the right of freedom of expression but also carried this hostility toward balancing into the theoretical justification for these constraints themselves. Accordingly, I claimed that the Millian Principle was a constraint on the justification of restrictions on expression that arose from the idea of autonomy itself and did not depend on judgments about the relative value of different forms of expression. This claim now seems to me to have been mistaken....
The lesson of all this is that we cannot understand or interpret the idea that content-based regulation is impermissible without ourselves drawing distinctions between different forms of expression on the basis of their content (or at least their subject matter) and making judgments about the relative value of these forms of expression. neutrality is central to our understanding of freedom of expression. To repeat, if a government states that it will permit only that expression that it believes promotes the values it endorses, it would not be viewed as respecting the right of freedom of expression.
It is for these reasons - the impossibility of evaluative neutrality, but its centrality to freedom of expression - that Stanley Fish maintains “there’s no such thing as free speech.”[352] As one of Fish’s interpreters puts it,
The keystone of Fish’s... argument is the claim that, as a matter of philosophical or conceptual analysis, freedom can only be important to people because it produces consequences they value. If freedom is important only because it produces such consequences, then, Fish argues, it follows logically that actions which undermine those consequences have no claim to be protected as free actions. Not only are they not entitled to protection, such actions must actively be constrained by those who are committed to freedom and the consequences it is valued for producing. Such constraint is an expression of the commitment to freedom, not a falling away from it.
The passages where Fish makes this counterintuitive point most forcefully occur in his analysis of freedom of speech. In liberal societies, free speech is important because it is believed to produce valuable consequences such as more truth, better democratic politics, and more individual self-development. But this means that any freedom of speech principle carries with it a commitment to constrain speech that destroys these things. Alternatively put, a commitment to free speech necessarily carries within it a commitment to censorship.[353]
If free speech is only important because of its consequences, those consequences that are valued and disvalued will necessarily reflect partisan positions, not evaluative neutrality.
Consider again the reasons liberals typically give for the importance of free speech, i.e. its positive consequences for truth, democratic functioning, and self-expression. These rest upon some fundamental liberal beliefs which are not accepted by everyone. Liberals believe that reasoned debate between competing viewpoints is the only sure way to achieve truth.
But this belief is not shared by those who believe in the compelling truth of a divine authority which does not await validation by mere human reason. Liberals believe that democracy is the only proper form of political order, but this will have no force for those who see democracy as producing disorder and a confused babble of ignorant voices. Finally, liberals believe that individuals are the fundamental unit of concern, but not everybody accepts that the self-development and self-actualization of individuals is more important than the coherence and survival of the family, tribe, or community of believers. Fish holds that because humans cannot transcend the state of being constituted by local commitments, any freedom of speech regime will be at bottom an attempt to advance some community’s particular and contestable partisan positions. It can never achieve a position above the fray, because it is always one of the contestants within the fray. Again we reach the conclusion that toleration of opposing partisan positions will be limited. In its expanded form, Fish’s argument is that if “free speech” means what the liberals say it means (i.e. the absence of constraints, neutrality as between partisan positions), the free speech does not exist because nothing could have those characteristics. Freedom of speech does exist, but only because it is essentially connected with the very qualities (constraint, partisan bias, non-neutrality) that are excluded from the liberal account. It is thus a “good thing” that freedom of speech isn’t what liberals say it is, and that we are constrained in ways that their account ignores, otherwise we wouldn’thave freedom of speech at all. Fish is therefore not arguing againstthe existence of free speech, as most of his critics suppose, but offering a different, non-liberal account of the nature of the free speech which does exist. His project is essentially descriptive, not destructive.[354]Fish maintains that when speech that is directed against the prevailing values is tolerated, it is either because government believes pragmatically that suppressing the speech will on balance be worse in terms of the prevailing values than tolerating it.[355] To urge toleration of speech that one truly believes will destroy what is valuable is an incoherent position.
Nor does taking into account fallibility about facts or values render it coherent. It does not advance the case for a human right of freedom of expression to point out that all human institutions, and surely governments, are fallible in assessing what the world is like and thus whether the effects of expression will be good or ill. Although governments are indeed fallible in this way and in others, any government must act on the view of the world it holds. There is a risk any time a message is suppressed. But as we saw in Chapter Two, no matter what the government does, messages are inevitably going to be suppressed to some extent. Moreover, just as there is a risk in suppressing messages, there are all sorts of risks in not suppressing them. Fallibility does not as a general matter make out a case for tolerance of either acts or ideas.
Fish does not believe that his antifoundationalist, postmodern critique of liberalism’s principle of evaluative neutrality regarding expression, religion, and association has any necessary implications for practice. His critique, he believes, leaves everything exactly where it was.[356] [357] And, of course, he is correct in the sense that what is true of liberalism is true of any of its opponents. They are as much ideological constructs as liberalism. In one sense, absolutely nothing follows from the postmodern critique. But, of course, that is not entirely accurate. Something does follow. The critique is deflationary. It takes the wind out of liberalism’s sails, even if it provides nary a breeze to liberalism’s competitors. It induces - not more toleration, as Fish fiercely and correctly denies - but a sort of normative torpor.92 If the critique were completely inconsequential, it would be hard to see why Fish would so often and fervently push it.[358] Finally, the paradox of evaluative neutrality that undermines a human right of freedom of expression cannot be parried by following Richard Posner and adopting, as one’s normative “theory,” a cost-benefit approach to freedom of expression.[359] First, as a normative theory, a cost-benefit approach is either empty and banal - “do not suppress speech unless the benefits of doing so, however characterized and determined, outweigh the costs of doing so, similarly characterized and determined” - or it takes a controversial position on what costs and benefits are and how they are weighed. Of course, even the most developed political philosophy will fail to answer some questions about the world - how safe are the 2004 Toyotas, how many genes are on the chimpanzee’s genome, who killed Jon Benet Ramsey, and so forth. And for these questions, it may indeed be the case that government regulation of messages will impede the search for answers. Uncensored exchange of research data, freedom to publish academic articles in peer-reviewed journals, and investigative reporting by the news media all probably usefully contribute to the production of specific, retail truths, at least relative to centralized control by government of all scientific research, academic publication, and investigation of wrongdoing. But these retail truths about the best procedures for answering certain kinds of questions cannot be generalized into anything recognizable as a universal human right to freedom of expression. They represent practices that have a rule-consequentialist structure of justification specific to particular 92 See George Sher, “But I Could Be Wrong,” 18 Soc. Phil. & Pol’y 64, 65: My awareness that I would now have different moral convictions if I had had a different upbringing or different experiences... makes it... harder for me to act on my moral convictions when these conflict with the moral convictions of others. kinds of questions and to particular cultures, eras, and technologies. Rather than representing a general human right that transcends political, cultural, and historical boundaries and preexists any particular institutional arrangements (such as adversarial trials, democratic voting, or university research), retail, rule-consequentialist justification for particular freedoms of expression have a “good for this time and destination only” quality.