Miller - Blog Post 8

    In Chapter 1 of “When the State Speaks, What Should it Say?” Brettschneider emphasizes the value of free and equal citizenship. He explains that in accordance with value democracy, “citizens must be treated as having equal status in that the rights of all citizens must be equally respected” and, fundamentally, “all citizens have equal status under law” (31). He places particular emphasis on the idea of what citizenship entails in a legitimate state: the state has a role in ensuring that citizens are free, equal, and never second-class. In addition, in accordance with the principle of public relevance brought up by Brettschneider, citizens must themselves “adopt the ideal of free and equal citizenship and change their discriminatory beliefs and practices which conflict with democratic values” (37). 

    While Brettschneider does not believe that the state can censor hate speech that espouses ideas that are in conflict with free and equal citizenship, he does believe that it must criticize and potentially condemn such speech in accordance with the notion of democratic persuasion. He introduces the Supreme Court’s animus doctrine, writing that “even if a wide variety of viewpoints are protected by rights, the animus doctrine implies that viewpoints should be criticized if they oppose the basis for rights and disrespect the fundamental equal status of all citizens” (34). 

    While I think this doctrine is meritorious, I do question whether it goes far enough in terms of protecting those who are not legally citizens, such as undocumented persons. The basis for Brettschneider’s argument seems to rely on the idea that in a legitimate state, citizens are treated as both free and equal. Failure to do so would undermine the very tenants of a democratic state. For example, if one uses their right to free speech to espouse beliefs that other citizens do not deserve the right to vote, then they are being hypocritical in using their rights as a citizen to diminish the citizenship of others; in this case, the state could certainly criticize such speech. But what about the case where a citizen espouses hate speech aimed at a group that does not have the rights of legal citizens, such as undocumented persons? Is that, too, a place where the state must step in to criticize speech?

    It seems as though Brettschneider may indirectly address this question when he states, “the ‘equal’ in free and equal citizenship suggests that a respect for a capacity for the sense of justice must be extended to all citizens in a democracy, because all persons who are subject to coercive laws must have the ability to endorse them” (34-35). Here, it seems as though he may be equating “citizens” with all “all persons who are subject to coercive laws.” Yet earlier, he states that “all citizens have equal status under law.” Undocumented persons do not “have equal status under law”; for example, they cannot vote for president. In this light, it is interesting to consider how the case of undocumented persons fits into the scheme of Brettschneider’s arguments on the value of free and equal citizenship, and to question how Brettschneider would address the state’s obligation to criticize the increasingly prevalent hate speech aimed at undocumented persons.