19.

INCIVILITY AND ITS DISCONTENTS

If everyone possesses autonomy over their own lives, then the freedom of any one individual cannot cancel out the autonomy enjoyed by others.

THE DAMAGE TO dignity goes beyond the harm done to individuals. Incivility puts the lie to the pretense of an inclusive, democratic society. It makes equal protection a charade and calls into question the entire liberal ethos of our pluralistic culture. Assaults on dignity leave a stain on society itself. In explaining why he is in favor of some regulation on hate speech, Jeremy Waldron wrote in 2008 that, “[t]he restrictions on hate speech that I am interested in are not restrictions on thinking; they are restrictions on more tangible forms of message. The issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, perhaps the majority, members of another group are not worthy of equal citizenship.”¹⁷⁸

Hate speech devalues human worth, and therefore its cost is too high—not just in the infliction of immediate injury but also in the consequences of allowing humiliation to harden, fester, and reconfigure into something more lethal. Thomas Hobbes wrote in Levianthan in 1651 about how the degrading of a fellow human being deals a lethal attack against his or her dignity and standing in the community.¹⁷⁹ Does not the state have an obligation to provide “security against soul-shivering humiliation”?¹⁸⁰

Human dignity is not a secondary right, and it should not be treated as no right at all. Those who believe in absolutist notions of free speech often justify their position by arguing that the Framers were primarily interested in individual autonomy. The Declaration of Independence, with Jefferson’s signature phrase, “life, liberty and the pursuit of happiness,” modified from Locke’s more generic “life, liberty and property,” is a clarion call for personal autonomy and human perfectibility: freedom at all cost, with happiness as an attainable end. In many ways, it is as much a statement of narcissism as it is a quest for liberty. First Amendment absolutists believe that “life, liberty and the pursuit of happiness” is the guiding spirit behind free speech. The liberties enjoyed by others are not the concern of ordinary citizens engaged in their own autonomous pursuits. There is no rationing of liberty. Autonomy knows no limits with citizens each pursuing, often aggressively, lives of maximized liberty and happiness. It is the promise of autonomous freedom that turns ordinary, sensible speech into absolutist free speech that can terrify and torment vulnerable targets.

The Declaration of Independence, which preceded the Constitution by over eleven years, is merely a declaratory statement of aspirations. It is nothing but an unbinding wish. All that soaring Jeffersonian language has no actual legal effect. The Declaration of Independence is basically an ornament, a shiny precursor to the Bill of Rights. It should not be inciting Americans to run over each other with words. Moreover, autonomy does not have to be defined in such aggressively narcissistic ways. There is no evidence that America’s Founders believed individual autonomy to be a Darwinian rumble. Lackluster pursuers of happiness are not disqualified from democratic participation.

To do otherwise is a misreading of America’s political virtue. Autonomy has no democratic purpose if it is not shared equally throughout society. If everyone possesses autonomy over their own lives, then the freedom of any one individual cannot cancel out the autonomy enjoyed by others. “Burning a cross on a black family’s lawn raises autonomy issues other than just those about the free speech of the actor,” argued law professor Alexander Tsesis. “Hate speech engenders personal safety concerns in outgroup members, thereby inhibiting them from traveling in their own communities. Sometimes, fearing for their safety, minorities are forced to relocate. After a cross has been burned on their lawn, a black family is likely to be leery about approaching its own house. The spread of bigotry diminishes autonomy.”¹⁸¹

Democracy is best served as a forum for treating individuals as “free and equal persons” in a system of governance that protects private “autonomous wills.”¹⁸² Autonomy is being exploited to excuse hate speech. Law professor Steven Heyman correctly observed that “[d]emocratic self-government is impossible in the absence of a minimal degree of civility and mutual respect among citizens.”¹⁸³ Autonomy that approves of citizens perpetually at each other’s throats is the very opposite of what the founding generation had in mind—and undermines the use of those throats for actual speech. Freedom was intended for citizens to coalesce around the shared democratic experiment and to arouse a spirit of cooperation, bringing out the very best in human enrichment. In more modern times, international human rights, as a movement, has recognized the value of dignity and its relationship to freedom. Freedom had no lesser meaning in the eighteenth century. Autonomy was never meant to undercut the aspirations toward public good. Democracy is not enhanced by autonomous selves seething with selfishness and antagonism.