Posts Tagged ‘rules and standards’

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. Continue reading

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John claims that the concept of a right is “an outdated modality,” “an autocratic fiat,” and “tremendously unhelpful” among other things.* John doesn’t formally define what a right is up front, and the closest he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.

Continue reading