Stigma, State Expressions and the Law

Implications of Freedom of Speech

Paul Quinn

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351470568
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book demonstrates the difficulties the law is likely to encounter in regulating the expressive activities of the state, particularly with regard to the stigmatization of vulnerable groups and minorities.

Freedom of speech is indispensable to a democratic society, enabling it to operate with a healthy level of debate and discussion. Historically, legal scholars have underappreciated the power of stigmatization, instead focusing on anti-discrimination law, and the implicit assumption that the state is permitted to communicate freely with little fear of legal consequences. Whilst integral to a democratic society, the freedom of a state to express itself can however also be corrosive, allowing influential figures and organizations the possibility to stigmatize vulnerable groups within society. The book takes this idea and, uniquely weaving legal analysis with extant psychological and sociological research, shows that current legal approaches to stigmatization are limited. Starting with a deep insight into what constitutes state expressions and how they can become stigmatizing, the book then goes on to look into the capacity the law currently has to limit these expressions and asks even if it could, should it?

This fascinating study of an increasingly topical subject will be of interest to any legal scholar working in the field of freedom of expression and discrimination law.

1 What are state expressions and how can they be stigmatizing?

1 Introduction

How do you want a French worker who works with his wife, who earn together about 15,000 FF and who sees next to his council house, a piled-up family with a father, three or four spouses and twenty children earning 50,000 FF via benefits naturally without working … If you add to that the noise and the smell, well the French worker, he goes crazy. And it is not racist to say this. We no longer have the means of honoring the family regrouping [policy], and we need to finally start the essential debate in this country, as to whether it is moral and normal that foreigners should profit to the same extent as French people, from a national solidarity to which they don’t participate, as they pay no income taxes.

Jacques Chiraq, Mayor of Paris 1980¹

In all societies, one can easily find examples of statements made by the state, or those in its employment that are capable of stigmatizing groups of individuals. Common examples include statements made by politicians that occupy government posts (including not least the US President), the actions of civil servants such as the police or through organized press releases and information campaigns by government agencies tasked with a particular function, e.g. public health. Given this wide variety, one might ask, what do such activities have in common, and perhaps even if it is possible to categorize them as the same type of activity.² In order to answer these questions it is necessary to look at how states use expressive activity and what their effect is on individuals and groups in a society.

Accordingly, this chapter will look at both of these issues. The first part will consist of a discussion of what state expressions actually are and how they can be categorized in relation to other functions of the state. In doing so the author will make use of the concept of ‘nodality’ as described by Hood and Margretts.³ Their approach views the activity of the state primarily in ‘policy’ and not in ‘legal’ terms. Such an approach allows the expressive activity to be envisaged in a way which the law and legal scholarship often do not.⁴ This part will attempt to demonstrate how and why the state uses expressions and why they can often be stigmatizing. The concept of nodality is useful in explaining why the state (and the individuals working for it) may often use expressions with the expectation that they will not be subject to restraint (including legal restraints) given the common assumption that they do not impose binding legal or corporeal changes on individuals.

The second part of this chapter will provide a range of examples of stigmatizing state expressions (SSEs). As this chapter will show, there is a wealth of examples available that go far beyond the Presidential tweets referred to at the beginning of this book. Most of these can be placed into one of three different categories. The first occurs where the state often has to partake in some form of communication that has an important functional purpose but which may result in certain groups feeling stigmatized (‘functional stigmatization’). Imagine a public health message for example concerning a condition that was found predominantly in a certain community.⁵ The second may occur where the state condemns certain forms of anti-social or harmful behaviour, e.g. drink driving or passive smoking (‘fair criticism’). A third category concerns the participation of the state and individuals connected to it in processes that are closely linked to the democratic nature of the state, e.g. policy announcements or political debate (statements made for political purposes).⁶ Often individuals involved in such activities will occupy a duel or hybrid role whereby they are simultaneously expected to represent the state and exhibit a certain level of neutrality whilst at the same time representing partisan political interests

Part 1: Expression as a function of the state – comparison to other functions

In addition, to the many corporeal functions of the state (e.g. providing services such as healthcare, social and physical security and various types of infrastructure), the state is able to act in other instances by making various public statements or releasing information. In doing so the state is often utilizing information to bring about a certain end. On many occasions such pronouncements fulfil an important function – providing citizens with information that they may need in order to protect themselves or their interests.⁷ On other occasions such pronouncements reflect a normal aspect of democratic life whereby public officials make their views known on issues that are of interest to the public at that moment.⁸ The varying aim, context and scope of such activities raises the question as to whether it is possible to group such activities together as being similar. One might wonder whether this is like ‘comparing apples and pears’ or do they have much in common from both the point of view of the state that uses them and the law that is intended to regulate them?

This section will attempt to answer such questions by attempting to assess what aspects such acts have in common and how they can be categorized. The author will make use of ideas concerning government capabilities and ‘tools’ put forward by individuals such as Hood and Margretts.⁹ Such an approach attempts to classify government ‘tools’ in terms of their ability to achieve certain of the state’s policy objectives. ‘Statements’ and ‘expressions’ seen from such a perspective form one type of ‘tool’ that is available for use by the state in conjunction with others in order to achieve its aims. This chapter will not focus on how such acts are recognized by the law (this will be done in subsequent chapters), but rather the uses that are made of such acts and why they are particularly useful in certain contexts. The aim will be to identify why, from a state’s perspective, it is often desirable to use such tools and also how, on occasion, their use can bring about the stigmatization of various kinds of individuals in society.

1 Public statements as a mode of operation for states – the art of governance

Defining what public expressions are, or how they may be categorized is not simple. Several questions immediately come to mind. What, for example, differentiates a government act that is an expression from one that is not? What is the correct way to describe such a category of acts? Can all forms of expression, including, for example, speech and printed messages, be classified as the same, or do they represent entirely different categories of activity? Does the practical use of ‘statements’ correspond with their actual recognition in legal terms?

One can, in attempting to answer the first of the above questions, start by analysing the functions that the state carries out in order to attempt to make a distinction between statements or expressions and other types of competences. This is no easy task as the modern state can be seen to carry out an enormous range of functions or operations and it is indeed beyond the scope of this (or any other) work to describe them all.¹⁰ Imagine, for example, all the various interactions the average individual has with the state in a year, from medical intervention, to receiving a tax rebate, to sending his or her children to school, etc. A more realistic option than going through all the possible activities of the state is to attempt to categorize activities into more generalized groups which are capable of corresponding to the actual activities the state engages in. Hood and Margetts¹¹ perceived the state as ultimately a structure that engages in numerous forms of social control.¹² In attempting to exert such social control, states have four basic categories of actions available. These are, according to Hood and Margretts, capable of encapsulating the numerous and varied functions of government that we as citizens are familiar with. They describe these as ‘nodality’, ‘authority’, ‘treasure’ and ‘organization’. These functions are utilized by the state to achieve its primary purpose – the exercise of social control. All state activity can be broken down into one of these categories that can be used in different guises in different contexts.

The first, ‘nodality’, would encompass the types of government ‘statement’ or ‘expression’ that this book is interested in. This category effectively involves the use of information by the state to achieve particular aims. The term ‘nodality’ refers to the ability of the state, through its various structures, to assemble, sort and distribute information. This involves the collection and dissemination of information to and from sources external to the state itself. Actions that fall under the categorization of nodality could, for example, include the distribution of information to the population on a mass basis, e.g. a public health campaign, or on a more restrictive basis, e.g. through letters or targeted emails.¹³

‘Authority’, refers to the unique authority of the state in condoning or condemning various actions by individuals or groups in society. Such actions are capable of ranging from hard laws to declarations by the state indicating that it ‘frowns’ upon certain activities and sees them as ‘un-citizenly’.¹⁴

‘Treasure’ involves the use of economic resources as an incentive for individuals to act in a certain way. Individuals may be induced, for example, to register their children and send them to school in return for child benefit or to fill out a tax return in the hope of receiving a rebate.¹⁵

The final category, ‘organization’, involves the use of state resources in terms of personnel and equipment to achieve policy goals. This could occur, for example, where a state decides to use its medical personnel to offer vaccinations to the public or where it decides to deploy more police to a troubled area. At the extreme end of possible intervention a state is able to use its organizational ability to enforce laws and to curtail potential freedoms through the detention of individuals.¹⁶

Nodality instruments are often seen as an attractive choice and as something to be opted for in preference to the...