: Nancy J. Hirschmann presents a feminist, social constructionist account of women's freedom. Friedman's discussion of Hirschmann's account deals with (1) some conceptual problems facing a thoroughgoing social constructionism; (2) three ways to modify social constructionism to avoid those problems; and (3) an assessment of Hirschmann's version of social constructionism in light of the previous discussion.

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts (...) of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)

The attraction between religion and politics is perennial. Sometimes, in its long and checkered history, it has led to an adulterous affair. I want to ask what lies at the heart of this attraction, and whether that can shed any light on the current religious/political scene. But the romance metaphor is at bottom not a good one. I shall argue that, in their originary condition, religion and politics are "closer," both ontologically and in their motivation, than woman and man, closer (...) than siblings. Perhaps the image of siamese identical twins would serve best as a figure for the union which binds together these domains, in spite of the peculiar political history which has, in the West and especially in this country, attempted to sunder them. Let me emphasize right here that my project is a descriptive one: I am seeking a deeper understanding of the phenomena, not attempting to develop a prescriptive or normative position concerning what is to be done. Indeed, I shall only be able to sketch the outlines of the descriptive position I shall propose. (shrink)

The last chapter of Spinoza's Theological-Political Treatise (TTP) is a brief for freedom of religion. In our enthusiasm for Spinoza's conclusion it is easy to overlook the blatant contradiction between this thesis and the central claim of the immediately preceding chapter that "right over matters of religion is vested entirely in the sovereign." There Spinoza emphasizes the necessity that there be but one sovereign in the state and the threat that autonomous religious authorities would pose to the authority of this (...) sovereign. This last claim is, in turn, bolstered by his analysis of the deficiencies of the Hebrew state in the chapter before, chapter 18, according to which it was the usurpation of political authority by priests that ultimately undermined the state. In other words, in chapters 18 and 19, Spinoza makes the case for the strict political control of religion only to conclude his treatise by arguing, in chapter 20, that the purpose of the state is, in reality, freedom and that that freedom manifests itself, in part, in freedom of religion. How could this latter not pose exactly the sort of threat to the sovereign and the state that leads Spinoza to insist on the sovereign's absolute control of religion? How can Spinoza insist that religion be both free and controlled by the state? This paper aims to answer this question and, in the process, explains a number of troubling features of the Theological-Political Treatise. (shrink)

In a number of recent federal court cases parents have sought to have their children exempted from certain school activities on the grounds that the children's participation in those activities violates their (the parents') right to freedom of religion. In Mozert v. Hawkin's County Public Schools (827 F. 2nd 1058) fundamentalist parents of several Tennessee public school children brought civil action against the school board for violating their constitutional right of freedom of religion. These parents sought to prevent their children (...) from exposure to beliefs or practices opposed to their (the parents') religious convictions. They claim that elementary school readers introduce ideas repugnant to their and their children's deeply held religious tenets. (shrink)

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

Susan Hurley has argued against a well known argument for freedom of speech, the argument from autonomy, on the basis of two hypotheses about violence in the media and aggressive behaviour. The first hypothesis says that exposure to media violence causes aggressive behaviour; the second, that humans have an innate tendency to copy behaviour in ways that bypass conscious deliberation. I argue, first, that Hurley is not successful in setting aside the argument from autonomy. Second, I show that the empirical (...) data are irrelevant to statutory regulation of media violence. They do not yield a sufficiently strong correlation between exposure to media violence and non-autonomously copied criminal violence, and they do not yield a way ex ante to individuate the viewers who will be affected by media violence. (shrink)

I argue for the recognition of a particular kind of interest that one has in freedom of expression: an interest served by expressive activity in forming and discovering one’s own beliefs, desires, and commitments. In articulating that interest, I aim to contribute to a family of theories of freedom of expression that find its justification in the interests that speakers have in their own speech or thought, to be distinguished from whatever interests they may also have as audiences or third (...) parties for speech. Although there are many differences among such speaker-centered theories, a core commitment that most share is that expressive liberty plays a fundamental role in securing or constituting some form of individual self-realization. My account is a defense and elaboration of what I take to be one specific (but not exclusive) way in which the nature of such self-realization should be understood. In my proposal, self-realization is sometimes internally related to the very activity of expression, viz, expressing ourselves is one way in which we come to form and know our own minds. (shrink)

"Freedom of expression" is a complex notion that reflects various considerations and raises many questions related to their content and interaction. This paper is an abstract of a book that considers general aspects regarding the justification and the limits of freedom of expression and analyzes exiting law in light of this normative discussion. Particularly, it considers the way to determine the proper scope of freedom of expression; first-order and second-order considerations in favor and against freedom of expression, both in general (...) and regarding central specific kinds of expressions; and possible ways to normatively regulate the field of expressions - in particular to restrict expressions, primarily by law - and specifically the common view that subsequent punishment for an expression is generally preferable to prior restraint of an expression. (shrink)

The subject of this study is the justification for limiting negative expression directed at the government: its institutions and public officials, in order to preserve public faith in government. This paper is an abstract of a book that considers this question. The conclusion is that since the value of speech concerned with the performance of government is very high and the interest in protecting the status of government is limited and typically not substantial, there is generally no justification for legal (...) restrictions of this kind. (shrink)

This chapter introduces debates about freedom of speech and argues that very few if any individuals support no restrictions whatsoever on freedom of speech. The question is therefore not should we restrict freedom of speech but rather what sorts of speech and how?

The ‘marketplace of ideas’ is an influential metaphor with widespread currency in debates about freedom of speech. We explore a number of ways competition between ideas might be described as occurring in a marketplace and find that none support the use of the metaphor. We suggest that an alternative metaphor, that of the ‘garden of ideas’, may offer more productive insights into issues surrounding the regulation of speech.

Are government restrictions on hate speech consistent with the priority of liberty? This relatively narrow policy question will serve as the starting point for a wider discussion of the use and abuse of nonideal theory in contemporary political philosophy, especially as practiced on the academic left. I begin by showing that hate speech (understood as group libel) can undermine fair equality of opportunity for historically-oppressed groups but that the priority of liberty seems to forbid its restriction. This tension between free (...) speech and equal opportunity creates a dilemma for liberal egalitarians. Nonideal theory apparently offers an escape from this dilemma, but after examining three versions of such an escape strategy, I conclude that none is possible: liberal egalitarians are indeed forced to choose between liberty and equality in this case and others. I finish the paper by examining its implications for other policy arenas, including markets in transplantable human organs and women’s reproductive services. (shrink)

This question lies at the heart of a debate that raises fundamental issues about just when, and on what grounds, the state is justified in using its coercive powers to limit the freedom of individuals.

It is widely held that free speech is a distinctive and privileged social kind. But what is free speech? In particular, is there any unified phenomenon that is both free speech and which is worthy of the special value traditionally attached to free speech? We argue that a descendent of the classic Millian justification of free speech is in fact a justification of a more general social condition; and, via an argument that 'free speech' names whatever natural social kind is (...) justified by the best arguments, that free speech is therefore this more general condition. This condition involves not merely the orthodox freedom (in some sense) of speakers to distribute words, but also two less frequently acknowledged dimensions of free speech: audience understanding and consideration. We conclude with some discussion of the policy implications of this conception of free speech. (shrink)

Free speech law often protects emotional expression. However, we lack an understanding of the scope and limits of protection for emotional expression. This Essay seeks to make progress toward such an understanding because a better understanding and grasp of the nature of emotion itself is crucial to achieving this goal. If we can arrive at an improved understanding of emotions and how they can be expressed, we will be better able to explain when we do and do not constitutionally protect (...) the expression of emotion. (shrink)

Consideration of the German philosophy and political history of the past century might well give the impression, and often does give foreign observers the impression, that liberalism, including in particular commitment to the ideal of free thought and expression, is only skin-deep in Germany. Were not Heidegger's disgust at Gerede (which of course really meant the free speech of the Weimar Republic) and Gadamer's defense of "prejudice" and "tradition" more reflective of the true instincts of German philosophy than, say, the (...) Frankfurt School's heavily Anglophone-influenced championing of free thought and expression? Were not the Kaiser and Nazism more telling of Germany's real political nature than the liberalism of the Weimar Republic (a desperate, ephemeral experiment undertaken in reaction to Germany's disastrous defeat in World War I) or the liberalism of (West) Germany since 1945 (in effect forced on the country by the victorious Allies after World War II)? (shrink)

Should the recreational use of drugs such as marijuana, cocaine, heroin, and LSD, be prohibited by law? Prohibitionists answer yes. They usually argue that drug use is extremely harmful both to drug users and to society in general, and possibly even immoral, and they believe that these facts provide sufficient reasons for prohibition. Legalizers answer no. They usually give one or more of three arguments: First, some argue that drug use is not as harmful as prohibitionists believe, and even that (...) it is sometimes beneficial. Second, some argue that drug prohibition “does not work”, i.e., is not very successful in preventing drug use and/or has a number of very bad consequences. Lastly, some argue that drug prohibition is unjust or violates rights. I won’t attempt to discuss all these arguments here. Instead, I will focus on what seem to me the three most prominent arguments in the drug legalization debate: first, the argument that drugs should be outlawed because of the harm they cause to drug users; second, the argument that they should be outlawed because they harm people other than the user; and third, the argument that drugs should be legalized because drug prohibition violates rights. I shall focus on the moral/philosophical issues that these [134] arguments raise, rather than medical or sociological issues. I shall show that the two arguments for prohibition fail, while the third argument, for legalization, succeeds. (shrink)

Rae Langton and Jennifer Hornsby argue that there may be a free-speech argument against pornography, if pornographic speech has the power to illocutionarily silence women: women's locution ‘No!’ that aims to refuse unwanted sex may misfire because pornography creates communicative conditions where the locution does not count as a refusal. Central to this is the view that women's speech lacks uptake, which is necessary for illocutionary acts like that of refusal. Alexander Bird has critiqued this view by arguing that uptake (...) is not necessary for the illocutionary act of refusal. The Hornsby-Langton view, then, is philosophically indefensible. Here I defend the philosophical cogency of the Hornsby-Langton approach. (shrink)