First Amendment Symposium, Part III: Why Rights Still Don’t Matter

So, Josh exercised his right to free speech by responding to my critique of rights with his own defense of rights. His defense was valiant, yes, but doomed.

Let’s start right at the beginning, with Josh’s attempt to define the ineffable concept of a “right”: “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.” This doesn’t really help us much, does it? A right means that Y—Y, as defined by Josh himself, “being any other individual or the government”—has a duty not to interfere with that entitlement. So, technically, every single time you interrupt someone you have violated someone’s right to free speech, since you’ve interfered with that person’s speaking freely. Apparently, that person now has legal recourse against you. By this standard, public school teachers who force students to raise their hand before speaking have collectively committed the gravest assault on our free speech rights that the U.S. has ever known.

Of course, this is ridiculous because Josh’s standard is ridiculous. A right protects you from any interference? That’s simply not true empirically.

You may think that this doesn’t matter. After all, such petty things are not real infringements on free speech. But definitions are important. Josh may revise his definition to say that Y must be defined specifically for each right. The problem with that, though, is that you are no longer discussing a right given to X, but a prohibition on Y.*

*In terms of predicate logic (if you’re into that sort of thing), this comes down to the distinction between an existential and universal quantifier, which fundamentally changes the meaning of a statement.

The fact is that the definition provided by Josh is basically unacceptable as it reads. To make it feasible, it really ought to be changed to something like, “if X has a right to speak freely, then Y has a correlative duty not to seriously interfere with X’s speaking freely.” This is a small but paramount change. We’ve now introduced a whole new realm of subjectivity and unpredictability into the equation. What counts as “serious” interference is bound to vary depending on each person’s perspective.

This brings us to Josh’s next point, namely that rights function as rules, as opposed to standards. The value of rules is that they are predictable, impartial, and consistent. With rights that are so difficult to define and subjective in their interpretation, though, predictability, impartiality, and consistency are greatly diminished. The value of having “rules,” then, is undercut by making the rules so amorphous and vague.

Josh himself gives a kind of admission of the weakness of these rules. He goes on to say that “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.” In other words, there are obviously exceptions to every rule. But where is the psychological security that Mill talks about if an exception can be made to the rule whenever “particular incentives” alter?

The main consequence of this is that rights don’t really function like strict rules at all. All Josh can really say definitively is that “if something is labeled a right, there is going to be a very strong presumption that it should not be abridged.” If all you can really guarantee is “a very strong presumption,” then your rule begins to look a lot like a standard. Think of other rules you follow: There is more than a “very strong presumption” that you should drive on the right-hand side of the road. You must do it. It is an absolute.

Rights, then, don’t really function as rules—at least not like rules as I understand them. But they don’t really function like standards, either. As Josh points out, the arguments about the consequences of a right are only argued BEFORE the adoption of that right–which means that, for the entire Bill of Rights, they were argued over 230 years ago. Josh tries to spin this as a good thing, saying that this lowers “decision costs” of judges. I would also say it diminishes “rationality” and “well-reasoned arguments” of judges. If something is a right, then there is no need to construct a viable defense of it; it is merely an established rule that ought to be upheld in the absence of a persuasive attack or countervailing legislation. Josh is surely familiar enough with psychological concepts to know that there is a bias in favor of upholding the status quo.

The other problem with relegating debates about the outcomes of “rights” to the period before its adoption is that outcomes change. There is no way to foresee the consequences of protecting certain rights over two centuries in advance. Instead of deciding how the values upheld by free speech apply in a new context, though, the established right is treated as dogma, as judges “don’t need to consider all the factors that go into free-speech analysis” for each new decision. In other words, rights, in addition to lacking the rigidity and security of rules, also lack the flexibility and adaptability of standards.

Josh talks about the chilling effect as a big reason to promote free speech as a right. If there isn’t a guarantee of free speech, then people will refrain from saying certain things in order to avoid prosecution. That is certainly true, but I don’t think considering the First Amendment a rule as opposed to a standard negates the chilling effect all that much. After all, as Josh himself admits, there are still a fair number of laws on the books that regulate speech, and the mere fact that these aren’t consistent with the First Amendment doesn’t make them invalid. The PATRIOT Act, for example, surely inhibits the expression of certain ideas, even though the First Amendment “guarantees” a right to free speech. In other words, the First Amendment doesn’t change the fact that the judiciary has to examine all free speech regulations on a case-by-case basis; it only guarantees the “very strong presumption,” that a more flexible standard would also ensure.

The only logical reason to suppose that the chilling effect would grow in the absence of a right to free speech is if you believe that the absolute nature of the Fist Amendment is all that prevents legislators from passing, the courts from upholding, much stricter speech regulations. In other words, you would have to totally discount the roles of cultural values and standards. As it is, though, the assertion that chilling effects would go up drastically in the absence of the First Amendment is an appeal to a phantom menace. You may as well point to the absence of terrorist attacks as a justification for NSA wiretaps, or the absence of bears as a justification of the bear patrol.

Finally, Josh uses his unstable definition of what a right is to say that rights, properly construed, never conflict: “A right with a correlative duty for Person X not to do Z, is a right which obliges inaction on Person X’s part…. [N]egative rights are generated in such a way that they don’t conflict.” This is theoretically true but nevertheless disingenuous. For one, not all rights are always understood as negative rights in the same sense. Suppose, for example, that there is a teacher who practices a religion that mandates strict schedule of prayer (just to ward off any objections: I am making a religion up, not thinking of Islamic five-times-a-day prayer). Theoretically, her right to free expression obliges inaction on the part of Y, where Y stands for any person acting on behalf of the government. In other words, Y can’t stop her from praying. But suppose the strict schedule of prayer results in occasions in which the teacher must pray, frequently and in an obviously sectarian way, in front of her students. For the students in the classroom, the Establishment Clause theoretically obliges inaction on the part of Y, where Y stands for any person acting on behalf of government, with respect to establishing a religion, such as praying in front of a class of students. So the same person stands in for X with regard to one established right, meaning that her behavior cannot be infringed on, and Y in another, meaning that her behavior cannot continue.*

*The way out of this predicament is simply to say that praying in front of students does not amount to an establishment of religion, but this is not an obvious premise that merely skirts the issue of conflicting rights.

More importantly, though, this line of thinking necessitates a priority of rights that the Bill of Rights does not state. As Josh says, a right to free speech rules out a right not to have one’s feelings hurt by making it paradoxical. But if two hypothetical rights are paradoxical, then there is no reason why one should take precedence over the other (Josh has chosen an example already weighted in his favor by pitting a stated right against an unstated and nonexistent one); it merely becomes a subjective judgment. And there is no reason to suppose that the non-interferences ensured by the Bill of Rights would never conflict. Let’s return, for example, to our praying teacher. In this case, neither right is patently absurd (as Josh’s made up right “to not have one’s feelings hurt” is); in fact, they are both stated within the same amendment. So even though each right in question is “ruled out” by the other one, we need to give one more weight than another.

The whole idea of a “right,” though, is that it is, theoretically, absolute, and not a question of degree or hierarchy. It’s not even clear how exactly one would go about selecting one right over another. Do rights that are explicitly stated in the Constitution get more respect than non-stated ones? What about the Ninth Amendment’s assertion that the Bill of Rights does not “deny or disparage” unspecified rights?

Like his definition of rights, then, Josh’s explanation is theoretically sound if realistically useless. Rights themselves are like this: They look good on paper but are of no value in terms of actual governance.


3 responses to this post.

  1. Posted by Clayton on April 22, 2010 at 2:23 AM

    I don’t quite understand how you undercut josh’s arguments regarding the compossibility of rights…Perhaps josh is guilty is definitional laziness, but your response does not really address these issues as they relate to infringement by the government. The example josh provides may be silly, but only because he allows an individual to be substituted for the government…The First Amendment is not in the business of regulating how individuals choose to speak to each other. Were this the case, one can easily see how Josh’s example could be taken in all sorts of bizarre directions…Looked at strictly as a negative right, the compossibility from government interference point makes perfect sense…


  2. Posted by Dan on April 22, 2010 at 7:17 PM

    “Think of other rules you follow: There is more than a ‘very strong presumption’ that you should drive on the right-hand side of the road. You must do it. It is an absolute.”

    Not necessarily. For instance, ambulances or police cars (or Jack Bauer) can in certain circumstances drive on the left side of the road if there is a, shall we say, a compelling government interest to do so. Same with speech.


    • Posted by John S on April 22, 2010 at 7:58 PM

      Fair enough, but those seem like very specific exceptions to the rule, not evidence that you can interpret the rule as a “very strong presumption.” You can’t, for example, say “well, ambulances do it, and I’m in a really big hurry, so I can probably drive on the left-hand side now” in the same way that interpretations of the First Amendment are constantly shifting and altering.


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