19. Free Speech as an Inverted Right and Democratic Persuasion 20. Free Speech and Democratic Persuasion A Response to Brettschneider推荐.pdf

19 Free Speech as an Inverted Right and Democratic Persuasion* Corey Brettschneider According to Elizabeth Anderson and Richard Pildes, rights should be understood, not as based on the interests of the individual, but rather as delineated by the expres- sive capacities of the state.1 The Establishment Clause of the First Amendment of the United States Constitution for example, which bars “endorsement” of religion by the state can be best understood in terms of what the state should or should not express. By this account, a cross in a public school classroom is problematic because it sug- gests that the state is endorsing Christianity. According to the “expressivist” view, it is a mistake to think that we should understand why the cross would be problematic by looking to the interests of the students. None of these students are coerced directly, nor are their interests obviously affected. They may, for instance, simply ignore the cross. Instead, displaying the cross in a public school classroom is problematic for the expressivists because it violates what Anderson and Pildes regard as the state’s fundamental identity; it implies that the state is Christian. Anderson and Pildes help- fully demonstrate that issues concerning religious establishment are linked to what the state should or should not say when it “speaks.” Inevitably, the state will express a message in many circumstances. It is unrealistic that classrooms, for instance, could entirely avoid conveying any state message. Rather the issue, as expressivists demon- strate, is what the state should say, given that it will unavoidably express itself. I do not wish to dispute Anderson’s and Pildes’ influential account of the Establishment Clause here. Instead I want to discuss a kind