Abstract
I attended the Prague conference from the early 2000s through 2012. As a professor of law at Cornell University, I primarily wrote about the relationship between First Amendment freedoms (including speech, press, association and religion) and political theory. My perspective, at least since the late 1980s, has been that it is unrealistic to hope or expect that a general theory of speech could lead us to practical outcomes in the myriad of complicated situations in which problems of speech and press arise. Speech, for example, comes into conflict with too many other important values (including privacy, fair trials, equality, the public health and democracy) to suppose that it should be privileged in these conflicts. To assume that conflicts such as these can fairly be adjudicated by reference to one value or a small set of values, or a veil of ignorance, or a notion that everyone is entitled to equal respect or concern, or by a model of undominated conversation strikes me as pure folly.
This does not mean that theory is unhelpful. Theory can rightly lead us to the conclusion that some solutions are out of bounds and, considering the totality of theories, can help us identify the factors we need to consider in resolving clashes between and among values. But we cannot deductively reason our way to conclusions in most interesting free speech and press disputes. I do not think this is a bad thing. It is part of the richness of human life.
Frank Michelman invited me to the Prague conference, I believe, because some voices were needed to raise questions about assumptions held by many participants who believed that the limits of theory were unfortunate and that they could and should be overcome. To put it another way, many system-builders with allegiances to Habermas (and to a lesser extent Rawls) spoke at the conference. One of the things that impressed me particularly among the German participants was how easily they moved between social theory, political theory and the great issues of contemporary politics. I learned a lot from these participants as well as others from Ireland, England, Italy and the United States. But my perspective about the limits of theory was not shaken.
Particularly important to me at the conference was my intellectual engagement with Ed Baker. Ed was a good friend and a great First Amendment scholar. He was certainly the most important legal scholar writing about freedom of the press, and he produced a liberty theory of the First Amendment that was the most interesting on offer. I had written a couple of books arguing that protecting dissent (that speech which criticizes existing customs, traditions, institutions and authorities) should be regarded as a central part of the First Amendment. Ed agreed, but disagreed about the methodology I used to arrive at the conclusion. I disagreed with the system-building aspects of Ed’s liberty theory and some of its substance.
Every year in Prague, Ed and I would go to dinner at least two nights and spend most of our time discussing our different positions. Ed was brilliant and a person of absolute integrity. I thought many times I had exposed a devastating problem with his approach, but after a long pause on his part, with his Kentucky drawl, he would emerge with a reasonable response. The one area he struggled with was campaign finance. But over the years in the conference, he moved towards Habermas and came up with a Habermasian approach to campaign finance (as well as the grounding of his liberty theory) that strengthened his theory overall.
One final memory I shall cherish from the conference. I spoke in a general session about Charles Taylor’s book, A Secular Age. Understand that the Prague Conference, to my knowledge, contains few churchgoers. Most believe that Reason is at odds with religion. Taylor is a Roman Catholic. As I read it, in A Secular Age, there are passages reminiscent of William James which defend the rationality of religiosity. Taylor argues that it was always wrong to think that religion would fade away in the wake of the Enlightenment in part because of the psychological advantages of religiosity. But Taylor also argues that there are psychological advantages to being an atheist as well. Atheists like to believe that they arrive at their conclusions from reason, that they are too smart to be superstitious, that they are courageous enough to stare death in the face and live with it rather than succumbing to the false comfort of an afterlife. Taylor’s contention is that both religiosity and the rejection of religiosity have psychological attractions that may do more to explain the positions held than anything a secularist, for example, might offer up as his or her ‘reasons’ for the position taken.
Perhaps I am impish, but I took a lot of pleasure in telling a group of secularists that their position might be motivated by a desire for a particular identity, rather than a commitment to reason. The defensiveness my talk attracted was something to behold.