Free Speech as an Inverted Right and Democratic Persuasion
Corey L. Brettschneider · 2015
Abstract This chapter focuses on how state expression can at times seem to be ‘inverted’ when rights are used to protect speech that opposes the reasons for the right to free expression. For example, the state’s protection of free speech rights for hate groups might appear to suggest that there should be no judgment about the racist content of the protected expression. In this sense, there is a possible tension between the implicit message of speech protections and the reasons that are rightly understood to underlie those protections. Given the possible confusion that inverted rights present for the successful promulgation of the reasons for rights, any workable theory of free expression should explain how the state might overcome this challenge. Democratic persuasion solves the problem of inverted rights by pronouncing the state’s criticism of protected but hateful viewpoints. In this way, democratic persuasion serves as a necessary complement to the rights protected under the doctrine of viewpoint neutrality.