Conclusion: Does All, None, or Only Part of Track Three Implicate Freedom of Expression?
A. Is Track Three A Sorites Problem?
In the previous discussion I attempted to show that principled line-drawing within Track Three looks impossible. The hypothetical laws in (1) look to be of a piece with those in (2) and so on all the way to the laws in (7).
Teaching evolutionary theory in the public schools is difficult to distinguish in any principled way from teaching the superiority of congressional candidate Jones. And both are difficult to distinguish in any principled way from government funding of only research within the orthodox evolutionary theory paradigm, or from government exempting only candidate Jones from the proscription of placing posters on utility poles.Of course, it is open to someone to respond that all I have shown is that Track Three laws present a classic Sorites problem. We cannot draw any principled line of demarcation between that number of hairs that makes one hirsute and that number that makes one bald, nor can we identify precisely that number of grains of sand that make a heap. Still, we know that a head with only a couple of hairs is bald, while one with 10,000 is not, and likewise with heaps of sand. And similarly, can we not be confident that government’s advertising the armed forces is not a free expression problem, whereas its supporting candidate Jones or the platform of the Democratic Party is?
Although I cannot fully defend the point here, I do not believe the cases on Track Three are like the classic Sorites cases. The latter involve linguistic or conceptual vagueness. Track Three line-drawing is a normative matter, however, and I doubt the applicability of Sorites analyses to the normative realm.[209] To argue that there is a line of great normative significance somewhere along a smooth continuum, but we just do not know where it lies, is to offer a promissory note without the collateral of a normative theory to secure it.
So in the absence of a theoretical defense of lines within Track Three - and a defense that is connected to freedom of expression as opposed to other concerns - I believe we can safely move on to consider the relation between Track Three as a whole and freedom of expression.B. All Track Three Laws Violate Freedom of Expression
One possibility is that all Track Three laws are impermissible. If we are certain that some Track Three laws violate freedom of expression, and if we can find no principled basis for distinguishing them from the remainder of Track Three laws, then it seems that we must conclude that all of Track Three is violative of freedom of expression.
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Track Three laws do violate the evaluative neutrality that must be at the core of freedom of expression. They do so when they endorse evolutionary theory as correct and a career in the armed forces as desirable every bit as much as when they endorse candidate Jones or the platform of the Democratic Party. They do so when they endorse modern art but not chocolate-coating performance art as worth taxpayer support.
Yet no commentator endorses overturning all Track Three laws. Although some would go as far as to urge the inconsistency of public education with freedom of expression,[210] no one wants the government to refrain from informing the public about why it has enacted the laws that it has, or why it believes a free trade treaty is advisable. Democracy requires some Track Three laws, or so it would appear.
C. No Track Three Laws Violate Freedom of Expression
This is the final possibility. If we cannot accept that government speech in support of its own policies or public education is per se violative of freedom of expression, and if we cannot distinguish those Track Three cases from others, then perhaps we should drop beliefs such as that government’s endorsement of partisan political positions is violative of freedom of expression. Perhaps such governmental nonneutrality is not morally problematic.
Or perhaps it is, but not for freedom of expression reasons. (Perhaps it is problematic because antidemocratic.) Although the intuitions of most commentators are to the contrary - they do believe that at least some Track Three cases violate freedom of expression - perhaps they are just mistaken.This view - that none of Track Three is of concern to freedom of expression - can be buttressed by the claim that cases on Track Three and cases on Track One, though both violate evaluative neutrality, are different from each other in a decisive way. In Track One cases, government violates evaluative neutrality in restricting liberty. In Track Three cases, no one’s liberty is restricted.
The problem with the argument is simply that it is false. Governmental speech and subsidies do in a real sense restrict liberty. Governmental speech and subsidies employ resources that come, of course, from private citizens and leave them with fewer resources to devote to propagating their own views. Now this may seem trivial in an advanced Western nation where the percentage of anyone’s tax bill traceable to governmental speech activities is tiny. Imagine, however, a very poor nation whose citizens have very little in the way of surplus monies available to publish and to broadcast, and assume that the government of that country, fearful of dissent, taxed those resources to support a massive governmental propaganda machine. Would we not in such a case believe that the citizens’ liberty was being restricted by the taxation, and being restricted to affect what messages were being received?
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All government speech, subsidies of speech, and regulatory exemptions for favored speakers leave private citizens, including those who oppose the government’s positions, with fewer resources. And if a small fine for expressing a disfavored view represents a loss of liberty, so too must a much greater resource loss that increases the salience of views one opposes while at the same time deprives one of the means to express one’s opposition.[211]
I shall not attempt to settle the relation between Track Three and freedom of expression. Government could not operate without some governmental speech, a point suggesting that not all of Track Three can be inconsistent with freedom of expression (unless the latter demands anarchy). On the other hand, because governmental speech does require the scarce resources of the citizenry, I think it implausible that no Track Three cases implicate freedom of expression.