Democratic legitimacy, political speech and viewpoint neutrality

The purpose of this article is to consider the question of whether democratic legitimacy requires viewpoint neutrality with regard to political speech – including extremist political speech, such as hate speech. The starting point of my discussion is Jeremy Waldron’s negative answer to this question. He argues that it is permissible for liberal democracies to ban certain extremist viewpoints – such as vituperative hate speech – because such viewpoint-based restrictions protect the dignity of persons and a social and moral environment of mutual respect. According to Waldron, well-drafted narrow hate speech bans are not democratically illegitimate, and they do not undermine systemic democratic legitimacy – that is, the legitimacy of a democratic political system. In contrast to Waldron, I will argue that democratic legitimacy requires viewpoint neutrality to respect persons as thinking agents. I will defend a civil libertarian doctrine of viewpoint neutrality, and this doctrine requires that citizens in liberal democracies ought to have a legal free speech right to do moral wrong – that is, a legal right to express and defend any political viewpoint or idea, even if it is morally wrong to express, or expose others to, such views. It will be argued that any viewpoint-based restriction on public discourse (including narrow hate speech bans) is democratically illegitimate, and that such restrictions undermine systemic democratic legitimacy.

In Search of Religious Liberty

This chapter discusses the origins of the Zobrests’ lawsuit against their public school district in Tucson, which refused on constitutional grounds to pay for Jim’s sign language interpreter in a Catholic school. For the Zobrests, federal disability laws and the First Amendment’s Free Exercise Clause entitled Jim to have this essential service. What follows is an analysis of the zigzag line of thinking employed by the U.S. Supreme Court as it grappled with church-state issues in the twentieth century prior to its consideration of the Zobrest case. For years, two titans of constitutional law—Catholic neoconservative William Bentley Ball and civil libertarian Leo Pfeffer—battled over what was legally permissible with regard to freedom of religion. Ultimately, the court enunciated a controversial Lemon Test to address this thorny area of its jurisprudence.

Signing, Sectarian Schools, and the Law

This chapter examines and analyzes the five-year journey of Zobrest v. Catalina Foothills School District (1993) from the federal district court in Tucson to the U.S. Court of Appeals for the Ninth Circuit to the U.S. Supreme Court. William Bentley Ball, the Zobrests’ attorney, and John Richardson, the school district’s attorney, clashed over whether the Establishment Clause permitted any government aid to a Catholic school. Many religious and civil libertarian groups—but just one national deaf association—filed arguments to sway the court. Chief Justice William Rehnquist, who wrote the majority decision favoring the Zobrests, misunderstood the complicated function of a sign language interpreter to permit what he regarded as incidental parochial school aid. Rehnquist maintained the aid was permissible because the plaintiffs and their deaf son were its main beneficiaries.

Two North Carolinians, Same Goal, Different Approaches

The volume’s final substantive essay compares and contrasts the public careers of two of the most important members of that generation of North Carolina politicians who rose to prominence after the founding era. Archibald D. Murphey was an Orange County judge and state senator who became known as a champion of constitutional reform and state support for education and internal improvements. Nathaniel Macon served 24 years in the U.S. House of Representatives and 13 years in the Senate and acquired a reputation as an archconsevative. This essay suggests traditional accounts may exaggerate their differences. Macon’s opposition to the Sedition Bill of 1798 showed a civil libertarian streak. Both men owned slaves and neither supported any significant steps to end slavery. Both men supported the University of North Carolina. Their differences stemmed in part from the different realms in which they operated. As a member of Congress, Macon felt compelled to address the constitutional limits of federal power, issues which Murphey, as a state politician, did not have to confront.

Deinstitutionalization and the rise of violence

The deinstitutionalization of individuals with serious mental illness was driven by 4 factors: public revelations regarding the state of public mental hospitals, the introduction of antipsychotic medications, the introduction of federal programs to fund patients who had been discharged, and civil libertarian lawyers. The result is approximately 3.2 million individuals with untreated serious mental illness living in the community. Beginning in the 1970s in the United States, there began to be reported increasing incidents of violent behavior, including homicides, committed by these untreated individuals. Such incidents became more numerous in the 1980s and 1990s, and have further increased since the turn of the century. Existing studies suggest that individuals with untreated severe mental illness are responsible for at least 10% of all homicides and approximately half of all mass killings. Studies have also shown that when these individuals are treated, the incidence of violent behavior decreases significantly. Examples of treatment mechanisms that have proven effective include assisted outpatient treatment (AOT), conditional release, and mental health courts.

When protective powers become threatening

<p>Indefinite and preventive detention: two archetypal danger-areas for the civil-libertarian mind. Both are permitted by criminal and mental health law, subject to the safeguards provided by common law and the European Convention on Human Rights (ECHR). Watchful eyes need to remain focused on the interpretation of such powers of detention.</p><p><br />That any coercive power that can be abused by authority will be so abused seems a reasonable rule of thumb. Certainly it is the assumption on which responsible legislators ought to work; even if they are willing to trust their own imperturbability in the face of events they have no right to do so, or so to trust their successors. Stop-and-search has been heavily abused, while the limits on control orders are under<br />judicial scrutiny domestically and at Strasbourg.</p><p><br />Terrorism trials and those involving notoriously violent criminals catch headlines, especially where mental disorder is involved. My concern here is the looseness of provisions which, operating out of the public eye, can indefinitely detain people on preventive grounds.</p>