Free Speech 1: What Are Rights?

Free Speech 1: What Are Rights? March 23, 2016

This is the first post in a series exploring the concept of free speech and its relationship to political protest, particularly relevant to recent discussions regarding the disruption by protesters of Donald Trump rallies.

Is a protest which disrupts a political rally an infringement of free speech, or an expression of it? Or is it both? What about a protest which seeks to prevent a rally from taking place, perhaps by entering the arena in which the rally is to occur, or  blocking a road leading to the venue? Some argue that protest, itself being an essential expression of free speech, is not in these situations infringing free speech. Others suggest that, by preventing a political candidate from airing their views, the protesters are indeed trampling the free speech rights of others. The debate between these two camps has become quite heated, with individuals expressing both points of view passionately, fearing that the other side is disrespecting a value critical to a free and just society.

What can be done to resolve this dispute?

These are a philosophical questions which hinges on our understanding of “free speech”. How we understand that term – a term with many contested meanings within philosophy – will determine our answer to these questions. While no single correct answer may be available – some complex ethical questions admit of multiple contradictory yet reasonable answers – by clarifying the central concept involved, we can at least ensure a fair discussion of the issues, and perhaps make some progress.

What follows is a series of blog posts which attempts to clarify the term “free speech” for the purpose of illuminating the questions above. In the process, I’ll have to do some preliminary work to clarify what is meant by a “right”, and the relationship between “rights” and “laws”. What I am presenting here is my own view – my own peculiar approach to the philosophy of rights and to free speech in particular. I make no claim that my view is the only defensible view, but I do believe it clarifies some otherwise challenging conundrums which other perspectives leave opaque.

What Are Rights?

Rights don’t exist. By this I mean they are not things in the world which we go out and discover, like bugs under a rock, crawling around waiting for us to lift it up and find them. Rights are ideas about collections of freedoms. They are claims about complexes of abilities and contexts which enable us to do certain things we want to do. Specifically, rights are groups of particularly precious freedoms we believe all human beings should enjoy. When I say I have a right to free speech, I do not mean “have” in the same way as in “I have a PlayStation 4.” A PlayStation is a thing which I own. A right is an idea about freedom which, when I claim to have it, I am arguing that a certain complex of freedoms should be granted to me. When I say I have a right to free speech, for instance, I am making an ethical claim that I am owed a certain sort of treatment when it comes to my speech, whether you recognize that or not. I am saying that my freedom in certain areas related to speech should not be limited, and that I should be enabled to act competently in those areas so that I can genuinely enjoy those freedoms (rights have, in my conception, both a positive and negative component).

Laws are not rights. Laws are mechanisms by which we seek to protect rights. My right to free speech – the concept I have regarding certain liberties I believe I should enjoy in the area of speech – is not equivalent to the legal protections which are actually in place to protect my right to free speech. I do not need to relinquish my claim to free speech rights if, for instance, the government bans my books and prevents me from speaking my mind. Even if all laws protecting free speech were annulled, I need not relinquish my claim to a right of free speech, because to claim a right is to take an ethical stance, not to make an observation about the current state of law. This is why, for instance, women could appeal to a notion of equal political rights even during a time when the legal regime did not grant them equal legal rights: they were appealing to an idea and arguing that they should enjoy certain freedoms (voting, for instance) which they did not at the time see protected or respected in law.

This distinction between laws and rights  is why, too, people can claim without contradiction that their government does not respect their rights. If laws and rights were the same, this would be a meaningless claim: you could never say that the law disrespects your rights, because your rights would be what the laws determined.  But laws can, and frequently do, disrespect rights by providing them insufficient protection or, sometimes, directly infringing upon them.  When the laws of an authoritarian government make it a crime to criticize the government, that is an infringement on the rights of the citizens of that nation, even if the law is passed through proper and accepted mechanisms. Even the First Amendment protection of freedom of speech in the US Constitution – often spoken of as if it were the very same thing as “the right to free speech” – is not a free speech right but rather a mechanism meant to guarantee such a right. The Amendment was so written in order to give a very high level of protection to a particular good – but the Amendment is not the good itself.  Laws and rights are not the same.

This means, finally, that we cannot settle a dispute about the nature of a right through an appeal to law. When a protester, for instance, claims that their disruptive protest is part of their right to free speech, it is no response whatsoever to point out that their disruptive protest is illegal. The legality of the protest might well be very important for other considerations, but in asking whether a practice is the expression of some right, the law will not help us (except insofar as particular legal arguments include philosophical arguments about the nature of a right, which they often do). So to say, to give an example related to the specific case under discussion, that Donald Trump is holding his rally in a private venue which the campaign has rented, and therefore he is legally allowed to exclude anyone he wants for disrupting his speech, is not to answer the question of whether he is infringing protesters’ free speech rights by so doing: he may be acting legally but wrongly, infringing on their rights with the blessing of the law.

In conclusion, having clarified some basic questions about rights – what they are and are not, and how they interact with laws – I can now examine the nature of free speech rights themselves, asking “What is free speech, and why is it good?” Those questions are the subjects of the second post in this series.

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