First Amendment Symposium, Part II: In Defense of Rights

This is the first part of a two-part reply to John’s critique of the First Amendment. The second part will run tomorrow.

John has two main arguments to support his proposition that the First Amendment is vastly overrated. First, he argues that the concept of a “right” is meaningless, and insofar as the First Amendment protects rights, it too lacks meaning. Second, John groups a bunch of arguments specific to the First Amendment together under the general proposition that the First Amendment is only about government neutrality towards speech, which can be deleterious. I will respond to these two arguments in two separate posts, addressing the rights argument in this first one.

John claims that the concept of a right is “an outdated modality,” “an autocratic fiat,” and “tremendously unhelpful” among other things.* John doesn’t formally define what a right is up front, and the closest he comes is when he calls rights “protections which you are entitled no matter what the consequences are.” This may be one effect of one having a right, but it is not a definition.  A more precise definition would be helpful to prevent us from speaking past each other. Wesley Hohfeld, somewhat like John, was bothered by meaningless invocations of “rights” and sought to clarify exactly what a right actually was; he argued that rights and duties were correlative. If X has a right to do something, he is legally protected from interference by Y.** In other words Y has a correlative duty not to interfere with X’s right. So, if X has a right to speak freely, then Y has a correlative duty not to interfere with X’s speaking freely.

*If I were a right, I would be very offended. I would likely cry.

**Y being any other individual or the government.

While rights have been grounded in religion by many, they need not be. John Stuart Mill himself in Utilitarianism, a work completely concerned with “general welfare” as John* puts it, offered an eloquent defense of rights in Chapter 5. He mirrors (or perhaps, more accurately, inspires) Hohfeld in claiming that there exist duties of perfect obligation—“duties in virtue of which a correlative right resides in some person or persons.” He specifically rejects the divine concept of “natural rights,” claiming that they exist for “no other reason than general utility.” That is, rights exist because they are beneficial; Mill makes an argument from psychology, that the absoluteness of rights provides us with security over issues that animate each of our senses of justice. To say that someone has a right to life means that everyone else has a correlative duty not to take his life unless he has violated their own rights in some way. This not only has definitional meaning from the Hohfeldian perspective, but from Mill’s perspective it gives people a lot of utility, since they know that the government will provide them with security if another violates his duty not to take their life.

*John S. John Stuart Mill and I are not yet on a first name basis.

John argues that the absolutist nature of rights means that they are “not based on consequences or arguments.” This is untrue, and the falsity of this statement can be illuminated through the debate over rules versus standards more generally. A rule is absolute, as John says, and is usually something like, “All dogs must wear collars” while a standard is more discretionary, such as “All dog owners must take reasonable care of their dogs.” There are strong arguments for using both rules and standards. Rules provide predictability (rules are clear, so people know what the law is and can abide by it), impartiality (it’s harder for a judge, for example, to stray from a rule than from a standard because of the former’s rigidness), and consistency from case to case. A standard, on the other hand, is able to focus on context, adapting decisions to the particulars of the situation. Each can be adopted or adhered to in a dogmatic fashion, but dogmatism isn’t inherent to either, despite what John’s framing would make you believe.

The right to free speech* is like a rule. In fact, it is a rule. “Congress shall make no law…” is absolutist rule-like language. Some other legal regimes, like France, use standard-like approaches, but the U.S. opted for a rule-like approach. A right because of its absolutism is generally analogous to a rule.**

*And, the other freedoms of the First Amendment, but I’ll focus on speech for the purposes of clarity.

**There really are two levels. Something absolutist can be protected in a standard-like fashion. So, under the Fifth Amendment, private property may not be taken without just compensation; “just compensation” is a standard embedded within the general rule.

With that said, the right to free speech may be protected based on a consideration of consequences and arguments, despite what John claims. The difference is that unlike when you have a standard (which John implicitly advocates by rejecting rights) where most of the arguments over the consequences occur in each individual case, when you have a rule , the arguments over the consequences occur before the rule is adopted. So, within First Amendment jurisprudence we have the Brandenburg test, which sets forth a rule: Speech that is likely to induce imminent lawless action is not protected by the First Amendment. This rule is justified by argument in the Brandenburg opinion. When future courts apply the Brandenburg test, they may choose to restate the rationale, but they need not do so every time in such detail because it is a rule. Legal scholars would say that this lowers “decision costs” since judges don’t need to consider all of the factors that go into free speech analysis every time. Just like the rule-like jurisprudential doctrines within the First Amendment, free speech itself has many justifications that considered the consequences of a right to free speech—many of which I provided in my initial post—which led to its adoption (and persistence, since it hasn’t been amended away) in the first place.

That’s my theoretical take, but my argument becomes even stronger when you look at rights, and the First Amendment in particular, through a realist lens. As John and I both acknowledge, courts allows restrictions to free speech.* Notwithstanding the theme of the last footnote, some of these restrictions almost certainly are inconsistent with the text of the Amendment—notably restrictions on obscene material. The realist shouldn’t be shocked by this. The realist perspective recognizes that while rules generally and rights particularly provide a strong baseline, if there are particular incentives (or lack thereof), rules won’t be followed in certain situations.

*I disagree with John that this is necessarily completely at odds with a textualist reading of the First Amendment. “Freedom of speech” isn’t self-defining and was and is a legal term that has particular meanings. There’s significant debate over whether political donations, for instance, are part of “freedom of speech”, for example. So, a strong argument, and Stevens does this in his dissent in Citizen United, is that the text of the First Amendment isn’t violated by allowing for restrictions on political donations.

Federal judges, for instance, do not get punished for not enforcing rights so long as that non-enforcement isn’t due to some factor that warrants impeachment. Sure, there may be reputational harm from not following a rule; consistently ignoring rules and rights may make a judge be deemed an “activist,” one of the worst things in the world! But, whatever harms flow from not enforcing rights may be outweighed by the particulars of a case or category of cases. For judges on the Supreme Court, obscenity was one issue in which the arguments and negative consequences of absolutely permitting obscene speech outweighed the benefits that generally flow from free speech. The fact that free speech was a recognized right did have some effect in constraining the judges to an extent: They had to provide ample justification for their abridgement of the right, but they did, in fact, abridge the right.

The realist recognizes that every right is abridged somewhat. So, in reality, labeling something a right is important and meaningful but not wholly absolute. If something is labeled a right, there is going to be a strong presumption that it should not be abridged, which is reflected by the very Hohfeldian definition of the right. And, there are arguments* that justify this strong presumption, but, of course, those arguments HAVE to occur before the presumption is adopted. If the presumption is applied on a case-by-case basis it really isn’t a presumption and the benefits that flow from having rules like psychological security and predictability are wiped out.

*Arguments, I might add for John’s sake, that consider the consequences of such a presumption.

If anything in the Bill of Rights is entitled to such a presumption, it is free speech. Why? Free speech, to be meaningful, depends so much on that psychological security that Mill discusses. If people aren’t sure if they are going to be fined or arrested for particular speech—most people being risk-averse—they are going to refrain from saying it. This is known as a chilling effect. If you accept the normative and consequentialist arguments in favor of free speech, then you accordingly should be very wary of the negative consequences of chilling effects. Even with free speech being a right, there exist chilling effects (see the PATRIOT Act, obscenity, etc.) and without it being a right, the chilling effects would increase significantly, with less predictability over how courts will rule on speech issues.

Now, let me address two separate arguments/assumptions that John makes in his broader rights critique.

First, he questions what happens if the rights of two people conflict or “counteract each other.” Such a concern is evidence of a lack of clarity over what a right is. Negative rights—that is rights that oblige inaction—should not conflict. Negative rights are Hohfeldian rights, properly construed. A right with a correlative duty for Person X not to do Z, is a right which obliges inaction on Person X’s part. Under the consequentialist lens we have been using so far, negative rights are generated in such a way that they don’t conflict. Once free speech is protected, a right not to have one’s feelings hurt by speech is ruled out: Because of its inconsistency with speech and the logical arguments for why we should have a right to free speech (see: Mill), such a right would be incoherent and paradoxical. Additionally, people often say rights conflict when they really are only talking about one right. For instance, one may say that the right to an education conflicts with a particular property right, a right to not have the wealth you earn taken away from you.* This is a conflict, but it’s not a conflict of rights. Under our definition, the right to an education is incoherent: It could mean that people can’t interfere with someone else’s choice to get an education, but the way it’s generally used, it means that others have a positive obligation to provide one with an education. This positive obligation may be a privilege or some other concept, but it is certainly not a right.

*The wealth would be taken away to support education.

Second, John assumes that consequentialism is the only valid approach to law, policy, and political philosophy. He claims: “What is going to promote the general welfare of the society in question? That is, after all, the aim of political philosophy.” This IS the aim of political philosophy for utilitarians, including Mill, but it’s not what political philosophy is about for the great many philosophers who take or have taken a non-utilitarian approach like Aristotle, Aquinas, Locke, Kant, Rawls, Nozick, Rand, Dworkin, Foucault, and Habermas, to name a few. It should be noted that only two of those listed (Aquinas and Locke) depended largely on divine appeal.

One might make political and legal philosophical arguments that are grounded in ethical arguments or presuppositions or based on individual human dignity or based on democracy. Perhaps the strongest argument for rights—and one that the Framers endorsed—is that it is a bulwark against the excesses of utilitarianism. The concept of rights, being individual in nature, recognizes that even if a legislative majority thinks that a measure supposedly increases “the general welfare”, individuals are entitled to certain protections that outweigh the supposed collective welfare interest of others. The concept of rights is one way of protecting the individual from the excesses of majoritarianism (a problem that John is certainly aware of) by entitling him to certain protections that the majority cannot just vote away. Without rights, judicial review would lose much of its meaning: the court would serve as a legislature under another name. Skeptics of democracy like John should be the biggest proponents of rights, not the biggest detractors.

Rights matter and are full of meaning. If you take all of John’s premises as true, he has the burden of arguing that all rules—rights included—are meaningless and don’t consider consequences. He won’t be able to meet this burden because, as I demonstrate, it’s based on premises that are both theoretically and positively untrue. Part II of this critique will continue this defense of the rights protected by the First Amendment from a more First-Amendment-specific point of view.

2 responses to this post.

  1. […] something about “abridging the freedom of speech” that you might be missing. As I explained in Part I of my critique, it’s not entirely clear what freedom of speech includes, notably whether political donations are […]


  2. […] often get stuck in complicated, nuanced debates over the meaning and values of abstract concepts discussed in the Constitution. These things are […]


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