He applied the “Page 99 Test” to his new book, When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality, and reported the following:
Debates over hate speech are often polarized on two dimensions. On the one hand, “prohibitionists” advocate the criminalization of some viewpoints, including those that are racist, sexist, or homophobic. In contrast, neutralists argue that the state should protect all viewpoints, no matter how heinous, because it is not the role of the state to take sides on matters of opinion.Learn more about When the State Speaks, What Should It Say? at the Princeton University Press website.
In my book, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality, I propose and defend a third view. I suggest that when it comes to matters of coercion, and especially criminalization, the state should be absolute in its free speech commitments by protecting all viewpoints. However, I argue that when the liberal democratic state acts in its expressive capacities, when it “speaks,” it should engage in what I call “democratic persuasion” in order to promote an ideal of equality under law. The state should also employ democratic persuasion to criticize those same racist, homophobic, and sexist viewpoints that it protects from punishment. The state engages in democratic persuasion implicitly when we build monuments to civil rights heroes like Martin Luther King and not for segregationists like Bull Conner.
More controversially, I argue that the state should engage in democratic persuasion by revoking funding and non-profit status for groups that advocate discrimination against women, minorities, or gays. Groups like the Westboro Baptist Church and the Boy Scouts of America might have a right to discriminate free from punishment, but they should not receive state subsidies in the form of direct funds or through tax deductions granted to their donors.
When it comes to children’s education, my argument regarding democratic persuasion takes a slightly different turn. On page 99 I focus on why children present a special case when it comes to democratic persuasion. Although no adult should forcibly be exposed to democratic persuasion, students are coerced as a matter of law into attending school. Moreover, I argue that students should be exposed to democratic persuasion as a matter of their schooling. The state should not be neutral regarding the battle between civil rights defenders and segregationists, for instance, nor should it be neutral about the reality of the Holocaust.
In defending my contention that children but not adults may be forcibly exposed to democratic persuasion, I consider the challenge that parents will be exposed to the same forceful persuasion through their children. On page 99 I write, “Consider, for instance, the case of a Holocaust-denying parent. The parent might protest that she would be exposed to democratic persuasion regarding the reality and evil of the Holocaust through her child. Teaching children democratic values might result in the parents hearing about these values as well.”
I respond by suggesting that the aim of education should be to persuade children of the importance of basic liberal values, not to use education as a means to persuade students’ parents of the importance of the values of liberal democracy. This kind of civic education might very well might bring children into conflict with their parents, but it does not violate parental rights. I argue there is no parental right to pass on racist, homophobic, or sexist views unchallenged. As I write earlier on page 99, “the right of parents to control their children’s education is far from absolute. It does not include the right to keep them from being exposed to democratic persuasion.”
I think that the p. 99 test works quite well for When the State Speaks. It brings us away from earlier intuitive examples about the state defending democratic values and into heavy and controversial terrain. It also shows the difficulties in attempts to carve out a role for the state to promote equality and to protect the rights of its citizens, including parents.