Democratic self‐defense and public sphere institutions

Contemporary concerns with democratic backsliding and contestation of democratic institutions, even in consolidated democracies, have reignited longstanding debates on how democratic societies should respond to perceived anti-democratic threats and what a principled “democratic self-defense” should look like (Kirshner, 2014; Müller, 2016; Malkopoulou & Norman, 2018; cf. Loewenstein, 1937). The core dilemma in these debates concerns the extent to which restrictions on anti-democratic speech, actors, and their associations can be justified in the interest of protecting the integrity of democratic institutions and strengthening democracy's guardrails. Variations of this dilemma, traditionally concerned with the protection of democratic institutions, have increasingly come to the fore in other arenas of democratic societies. Public sphere institutions such as schools, universities, and public broadcasting organizations, as well as social media platforms have become deeply entangled in discussions on the limits of speech and political action. These institutions are expected, either by convention or legislation, to uphold and reproduce core liberal democratic values while also remaining open to a plurality of views, allowing for the free formation and expression of political ideas. Yet, the existing literature has had less to say about what values should guide decisions to restrict or call out speech deemed to challenge liberal democratic norms in the context of these public sphere institutions. Our concern in this article is to clearly flesh out what core dilemmas of democratic self-defense in the public sphere consist of and theorize the democratic values at stake in this context. Seeing human dignity as a fundamental value for liberal democracy, we argue, helps us to more precisely identify the character of democratic threats in the public sphere, the various ways in which democratic values may be undermined, and in light of that, how public sphere institutions may respond to these challenges. Crucially, the assumption that human dignity is a basic democratic value allows us to identify how legally protected speech can still be highly problematic from a democratic perspective. This is important, we argue, as many of the challenges to liberal democracy involve individual-level harms, instances where the human dignity of individual people is undermined. Key to this argument is theorizing the link between attacks on the equal dignity of citizens and attacks on democracy. We tie human dignity as a democratic value to the respect and status afforded to individuals as members of a political community. Paying attention to this link in the context of democracy helps highlight characteristics of speech that have not received sustained attention in current discussions on militant democracy and democratic self-defense. Our argument emphasizes that some members of democratic society are more at risk than others by virtue of the fact that they already occupy precarious positions in terms of recognition of equal standing. Incorporating this insight should have repercussions for the strategies devised to combat anti-democratic threats at the “micro level” in democracies. This, finally, allows us to think anew regarding the strategies through which the dilemma can be approached by democratic actors. We consider both exclusionary and expressive strategies and discuss how they involve distinct trade-offs and dilemmas. The article proceeds by first clarifying the theoretical starting point regarding anti-democratic challenges in the public sphere. We contrast our view with prevalent perspectives in democratic theory that have focused on democracy's protection. Next, we outline the significance of human dignity as a democratic value and define key ways in which dignity might be undermined in the public sphere. We illustrate our argument with discussions on dilemmas facing public broadcasting organizations, social media platforms and educational institutions. The final section outlines the menu of strategies available in pushing back anti-democratic threats in the public sphere, including both exclusionary and expressive actions. We present an argument in favor of expressive strategies while highlighting instances where both strategies may be employed, as well as instances where public sphere institutions should remain passive. Our starting point is that contemporary threats to democracy require greater attention to the dilemmas of democratic self-defense in the public sphere. The public sphere can be defined as the “constellations of communicative spaces in society that permit the circulation of information, ideas and debates” (Dahlgren, 2005). It is composed by formal and informal institutions including schools and universities (Holmwood, 2017), public media institutions (Iosifidis, 2011), museums (Barrett, 2011) and increasingly, social media platforms (cf. Müller, 2019). These are settings of key importance for a functioning democracy where individuals should be able to participate and deliberate about public issues on an equal basis. Our argument does not assume that the public sphere is uniquely concerned with “common interests” (Taylor, 1992), or that it is necessarily “representative” and “inclusive” (Fraser, 1990). Indeed, the public sphere can also provide oxygen for anti-democratic and extremist actors, and its institutions can become vehicles of autocratization (Arato & Cohen, 2021). For these reasons, teachers, journalists, editors, their boards and directors, are forced to make often difficult decisions on where the limits should be drawn regarding which actors and which views should be given room. There are thus good reasons to theorize how public sphere institutions should approach dilemmas related to where and how to draw limits with reference to what is tolerable in a democracy. These are dilemmas that parallel those theorized in the growing literature on democratic self-defense, but they take on a different guise when we consider public sphere institutions (cf. Müller, 2016; Malkopoulou & Kirshner, 2019). In the wake of increasing digitalization, the rise of social media platforms and the decline of traditional print and broadcast media, there is a strong tendency toward a “breakdown of gatekeeping” (Farrell & Schwartzberg, 2021: 222). This also constitutes a shift whereby nonstate institutions in the public sphere increasingly have to undertake contentious and sometimes highly consequential decisions about the inclusion and exclusion of particular actions and messages, even in cases where they fall well within what is legal (Chambers & Kopstein, 2022). Decisions by some of the leading social media platforms, most notably what was then called Twitter, to suspend the account of then US president, Donald Trump, are illustrative (Twitter, 2021a). The decision to ban Trump from Twitter, or indeed the decision to invite him back on the platform, was not taken by a public authority with reference to the breach of any laws. It was a decision taken by a private corporation with reference to its own policy against the glorification of violence (Twitter, 2021b). The dilemma of democratic self-defense does not only apply to social media platforms; it is ubiquitous in the public sphere of contemporary democratic societies. Decisions to suspend participants, censor users, or to flag or limit the distribution of content, as well as decisions to not take actions and include democratically questionable views, are regularly made by media outlets, schools, museums, universities and other institutions that provide arenas for public debate. The dilemmas that come to the fore in such settings increasingly permeate the every-day practices of democracy. However, they are clearly distinct from the dilemmas faced by the democratic state in relation to anti-democratic political parties and organizations. Public sphere institutions are neither judicial nor legislative institutions; they are part of what Rawls termed as the “background culture”. In a free and democratic society, the background culture is the arena for free associational life that should largely remain unregulated by law (Rawls, 1997). The public sphere thus provides ample occasions for the dilemma of democratic self-defense to materialize but where legislation does not, indeed should not, supply clear guidance. It is a dilemma that has less to do with the integrity of electoral institutions and procedures of political democracy and more with the extent to which the members of democratic societies are respected as equals. This comes with implications for how we understand how anti-democratic threats play out in these settings. For the purposes of our argument, it is particularly important to challenge the assumption that such threats affect all citizens in a democracy equally. Rather, we assume that the burdens of anti-democratic rhetoric and actions are carried to a larger extent by some groups than by others, that they are unequally distributed. The increasing influence of political movements identified as potential threats to democracy, such as political parties with roots in the extreme right, are often theorized to pose an equally serious problem for all democratically minded citizens in a society. We agree that actual authoritarian governments do undermine the dignity of all their citizens in a fundamental sense. However, the belief that all citizens in an otherwise functioning democracy are equally affected by anti-democratic rhetoric obscures the fact that the key mechanism through which authoritarian politics gains traction in a democracy is by targeting often already marginalized groups (Tudor & Slater, 2020). Anti-democratic movements are never “just” anti-democratic in the sense of advocating for authoritarian forms of government. In general, these movements also target particular social, ethnic, linguistic groups in society, framing them in antagonistic terms, as enemies of the people, the state or the party. Anti-democratic movements often exploit pre-existing asymmetries in power and status in society. In contemporary democracies, anti-democratic movements typically engage in continued rhetorical assaults on the status and rights of, in particular, immigrants, religious communities, women, members of the LBGTQ-community, indigenous peoples and minorities. Frustration, impatience, blame and indeed hatred directed at these groups is a fixture of the authoritarian playbook (Corrales & Kiryk, 2023; Lührmann et al., 2021; Gricius, 2022). Our argument builds on the premise that the primary target for contemporary perceived challengers of democracy, including the plethora of authoritarian populist parties in Europe, is the public status of specific groups and their individual members, rather than the integrity of democratic institutions and procedures as such. This observation does not exclude the possibility that, when in power, these parties would work to erode those institutions. Examples of this from the last decade are readily available in states like Hungary, Poland, and the United States. However, beyond the most extreme fringe parties, such as neo-Nazis or revolutionary communists, parties marketing themselves in direct opposition to democracy as a form of government are rare. Targeting members of specific societal groups by identifying them as illegitimate or unwanted members of the political community is from this perspective a hallmark of contemporary anti-democratic politics. Anti-democratic movements in a democracy, while they may not attack democratic institutions as such, regularly work to denigrate the equal public status of some groups. This, we argue, is an affront to the human dignity of these individuals and as such in conflict with fundamental values in a democratic society. The type of anti-democratic threats that are our primary concern in this article thus start from the particular rather than the general; from targeted disdain, rather than from competing principles of government. Therefore, recognizing the unequal distribution of costs for assaults on democracy should inform attempts to theorize the dilemma of democratic self-defense. By contrast, public speech in a democracy that promotes anti-democratic forms of government, even if deemed offensive, is arguably less likely to have harmful effects in terms of undermining the dignity of particular citizens. Advocates of, for instance, military or expert rule, while clearly communicating support for anti-democratic principles, need not necessarily target the standing of particular individuals. Furthermore, the fact that we suspect that, given government power, critics of democracy would bring society in an authoritarian direction does not necessarily imply strong reasons for their blanket exclusion from public sphere arenas. However, the contention that the first casualties of anti-democratic action are more likely to be members of particular groups prompts us to reconsider dominant themes in longstanding discussions on how to defend democracy against anti-democratic challengers. The theoretical tools developed in this literature are dominated by a concern with the preservation of democratic institutions and procedures, including the integrity of elections, basic political rights, and the balance of power between the executive, the legislature, and the judiciary (Abts & Rummens, 2010). These are concerns which we share. Questions concerning to what extent democracies should formally tolerate extremist and anti-democratic actors that rally under anti-democratic political programs or if such political actors should be confronted with repressive measures to protect democratic institutions remain important (Gutmann & Voigt, 2021; Kirshner, 2014; Malkopoulou & Kirshner, 2019; Müller, 2016; Niesen, 2002; Rijpkema, 2018, 2019; Sajo, 2004; cf. Kelsen, 2006; Vinx, 2020). However, the predominant way anti-democratic threats are conceptualized in this literature limits its ability to accurately capture dilemmas and challenges of democratic self-defense in the public sphere. The shadow of Karl Loewenstein—credited with coining the concept of “militant democracy”—looms large in its basic conceptualization of the dilemma of democratic self-defense (Loewenstein, 1937). It is a perspective ultimately concerned with protecting the integrity of core democratic institutions and its decision-making procedures. The fundamental “Löwensteinian” concern is that democratic procedures are vulnerable and easily exploited for anti-democratic ends. References to the fall of the Weimar Republic are ubiquitous in the academic literature, and increasingly in contemporary public debate, serving as the paradigmatic example of a democratic system that lacked adequate constitutional mechanisms to protect itself against anti-democratic attacks (Abts & Rummens, 2010; Müller, 2016; Kirshner, 2014; Quong, 2004; Rijpkema, 2018; Vinx, 2020).2 Instead, the argument goes, anti-democrats were able to dismantle democracy “from within”. A core idea is that the inherent openness of democratic institutions makes pre-emptive action permissible and sometimes necessary against political movements that can be suspected of subverting those institutions in the future. As Müller states, “a militant democracy does not wait until its enemies have gained majorities at the poll; it seeks to nip fundamental opposition to democracy in the bud” (Müller, 2016: 250). Although conventionally less pronounced in a US constitutional tradition, it has been prevalent in post-war democratic constitutional debates in many European countries (Bourne, 2018; Fox & Nolte, 1995; Norman, 2022; Suteu, 2021). Theorists of militant democracy are careful to distance themselves from many of the measures defended by Karl Löwenstein (Kirshner, 2014; Müller, 2016), and others have argued that the notion of a militant democracy is inherently tied to elitist and anti-participatory logics (Invernizzi Accetti & Zuckerman, 2017; Malkopoulou & Norman, 2018). It is, moreover, increasingly recognized that contemporary anti-democrats rarely voice explicitly authoritarian or totalitarian political ideals. Rather, the political platforms of authoritarian populists in Europe, the United States, and Latin America, with some clear exceptions, tend to occupy the grey area between democratic and authoritarian politics (Malkopoulou & Moffitt, 2023). The point is that contemporary anti-democratic movements may fall well outside the scope of traditional militant measures such as restrictions on assembly, political organization and party funding that have dominated discussions on militant democracy (Rovira Kaltwasser, 2019). This holds even if we observe how populist parties similar to those emerging in many consolidated democracies are instigating anti-democratic political developments elsewhere, where they may have gained government power. These observations further underpin the need to theorize the principles on which institutions in the public sphere should base their response to speech and agents perceived to challenge democratic values. The answer, from our perspective, is not to advocate for more intrusive and repressive legal restrictions in the public sphere. Rather, we aim to highlight which values are at stake when public sphere institutions consider limits to public discourse. This leads us to theorize the nature of the threat to democracy in these settings. If, as we argued above, we are not primarily concerned with actions and forms of speech regulated by law, what is the basis for the dilemma and why is it a concern for democratic theory? How is democracy imperiled by systematic rhetorical attacks on the social and political status of particular groups? We propose that a focus on human dignity as a democratic value allows us to cut to the core of anti-democratic rhetoric and action. Indeed, these are values explicitly recognized by many militant democrats, including Loewenstein (1937, p. 658). Democratic institutions and procedures are from this perspective ultimately guarantors of human dignity, and this value should inform the protection of these institutions. Yet, we believe that the predominant focus on democratic institutions and procedures, specifically those related to electoral politics, tends to downplay both individual level and aggregated consequences of speech in the public sphere. For those reasons existing perspectives seem less well-suited to identify and address current anti-democratic challenges. By extending the analysis to public sphere institutions and by invoking the importance of human dignity to democracy, our approach offers the groundwork for a clearer discussion on the dilemmas that arise in efforts to defend democracy against such threats. There is a dual relationship between the value of human dignity and democratic ideals. On the one hand, human dignity is the background norm—an abstract principle—that is frequently perceived as a justification for democratic rights of participation. On the other, human dignity signifies a particular social status—or social practice—that is arguably instrumental to active participation and the use of democratic rights. We discuss both these aspects of dignity as a vehicle to identify threats to democracy in the public sphere. As a bedrock for normative claims and a social status worthy of protection, human dignity is bound up with a broader catalogue of liberal rights. Human dignity is typically incorporated as part of this catalogue and appears in written constitutions to differentiate the democratic political order from past authoritarian experiences. Human dignity emerged as the legal principle that provides the foundation for democratic and constitutional orders in post-war Europe (Dupré, 2013). A similar pattern is visible in Latin America after the fall of the juntas and in Eastern Europe after the fall of Communist regimes (Barak, 2015).3 The principle of human dignity provides a justification for democratic institutions. This is, for instance, illustrated by the fact that it figures among the founding values of the Treaty on European Union (Article 2) and that it plays a key role in the 1949 of It also important decisions in the of the US that has as a value or existing constitutional rights and p. cf. 2021; that human dignity is recognized as a key value for democracy it might that it has not been given more in the literature on democratic an we believe that this has to do with the in terms of the different to which it is in different In the relationship between human dignity and democracy 2017; There are of democracy where of human dignity play a if For instance, for democratic procedures as for but of political conflict need to values of equal dignity This does not that such perspectives on democracy would necessarily that dignity is an important concern for human only that it does not play core for democracy as a form of government. a democratic perspective, even regimes have often well in what most of us believe the democratic should including human dignity p. A related and to the concept is that human dignity to any clear normative direction at all that human dignity may be more in other social and for instance, as the basis for the protection of or the to life & We that the idea of human dignity as an important background value for democracy is to a discussion on democratic self-defense in the public sphere. human dignity to the human of individual we it as more or less with equal status and the that this status to be recognized by public institutions. Our point is that a to the principle of human dignity is fundamental not for but also for (cf. further the of the principle of human dignity for discussions on democratic self-defense, we highlight human dignity signifies a social status that is instrumental to democratic participation Human dignity is to require public recognition of the as an equal of society. A is recognized as an equal is recognized as a with human This with what is termed social and of social and in The respect by human dignity is in this sense more than of political the status of is among the to all members of a democratic society by virtue of their standing as political & 2018). The of the social status with recognition of human dignity plays an important role in available for participation. related to the functioning of a democratic public sphere, it is a for in public for all members of the community. Human dignity is, a basic about status that a of rights, including rights to democratic participation The that all individuals the of their human dignity, is bound up with the justification of democracy as it allows us to the equal and of political rights as the expression of our status as and human In the context of extremist threat to democracy, we thus believe the most of dignity is that of a particular public This is with the notion that it is a background value that makes democratic politics The core of human dignity take all members of the democratic community should be as individuals of equal standing. Human dignity as equal public status in a community is similar to the recognition of to have 2016; It theoretical discussions on the of specific rights such as the to or the to life and seeks to the fundamental for such rights, they are to be for dignity in this perspective a related to the recognition of in a political community that is necessary for more specific rights to be including democratic Our is that dignity is a social status that is also vulnerable in the public sphere. protect that of democratic self-defense need to themselves in a perspective that out what constitutes to equal how the of human dignity in the public sphere of democratic societies can we a from and between ways in which speech may be to the equal public status of and These to which the public standing of a can be or undermined by are related to the of that in legal discourse. We that the open up for a more and discussion on which of speech might work to undermine dignity, even when such speech within what is legally is defined as efforts to undermine an status as of a political community by reference to their with a particular societal and deeply characteristics as to that (cf. thus aim at individuals as members of groups rather than as of particular political positions and it is by or attempts to undermine the status of others as equal and as equal for political speech can be as tied to exclusionary of and to of the in and terms 2017; 2019; 2019). It that the equal public standing of individuals in that particular community. Yet, not that seeks to the equal public status of is necessarily an affront to the democratic value of human as above, human dignity can also be undermined by measures that do not attack the equal public status of individuals as citizens. that some citizens be from the political or legal community may an attack on their equal public status and as such the way for of their democratic rights as well as of other fundamental rights. The democratic significance of this point on an insight in the literature, which is that recognized in a political community is a for of basic political rights. As assaults on equal public status are instrumental in particular citizens their status as members of the political assaults on dignity also work to undermine basic political rights This is what makes speech that attacks the public status of particular groups and why it is inherently a concern for democracy. is the of speech with the most and implications in terms its potential to undermine the equal public status that is necessary for the human dignity of all citizens. as a political may come with serious in terms of the way for the of other fundamental rights of individuals. to the core of such The of speech that others is that it seeks to exclude them from in by them as or otherwise of the that are uniquely human It is thus more in that it does not limit itself to of to participate in a particular community but to undermine the status of individuals as human speech has been to the of members of ethnic, and other social groups and has been part and of and In a US the of is illustrative for our argument, where recognition of human dignity was on the basis

Democracy · Law and economics · Political economy · Political science · Politics · Public sphere · Sociology · Law · Political Philosophy and Ethics · Populism, Right-Wing Movements · Religion and Society Interactions

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