Sunday, February 13, 2005

Protecting our "rights"

As I noted in a previous post, I've been wasting a lot of time of late responding to various posts on a blog called CafePress Watch. In doing so, I've actually been thinking a bit about how most Americans conceive of their rights.

One often hears people claiming that they have "rights". This often occurs on TV cop shows, but I frequently here it in reference to situations where there is no government action involved. When I hear this, I'm given to wondering what the person means when they say "I have rights."

For example, in the context of criminal procedure, when a person asserts that they have rights, they aren't really asserting the existence of those rights. The fact is, rights can be denied to a person by any other person with sufficient power. A right does not protect itself, so the person asserting their rights must be relying on some other protective power. When an individual is being held by police and asserts their rights, what they are really asserting is: "I have rights and the Constitution of the United States prohibits you from infringing upon them." Really, the assertion of rights is a reminder to the police (or other G-man) that there is a higher legal power (i.e. the federal government, the courts, etc.) to which they must answer if they violate an individual's rights. In the context of private interactions, though, what rights does any person have?

I bring this up because I constantly hear people invoke their right to free speech. According to our Constitution (and Declaration of Independence), there is a fundamental right to free speech. I don't deny that and, in fact, believe the right to free speech is one of our most important. However, as codified in the Constitution, the right to free speech is only protected against government intrusion. While this ensures (with some exceptions) against government limits on speech, it provides no protection against private limits on speech. Any person's ability to say what they wish, when they wish, is ultimately a function of their ability to protect themselves from the consequences of their speech.

That last sentence seems to suggest that Americans exercise their rights in some Hobbesian state of nature. Obviously, this is not the case. I suspect that for most people in the United States, they can say what they want, when they want with relative impunity. The issue, of course, is that freedom of speech is most meaningful when speech is employed against power that infringes on other individual rights. In our civilized society, while the freedom to speak openly and randomly is imporant, it is not the ultimate expression of the right of free speech. Freedom of speech is fully actualized when it is employed to limit the abuse of individuals and the erosion of individual liberties by powerful people or entities.

This brings us back to the question, therefore, of who or what protects a person's rights, such as free speech? In the United States there is actually very little - except, perhaps, for a civic culture that values individual expression - to protect the freedom of speech against private intrusion. Employers may place all sorts of limits on their employee's speech. Service providers, such as Cafe Press, may place limits on the speech of parties with whom they contract. Even between individuals, some parties may find themselves silenced by fear of retribution. Free speech it seems, is either a very cramped idea or it can take a great deal of personal sacrifice to protect it.

So what am I trying to say? To be honest, I'm not entirely sure. First, that I think lots of folks in this country have barely a clue about what the Constitution does or does not do. Second, that I think this ignorance is dangerous. I suspect that regular invokation of generic "rights" weakens our concept of fundamental rights and, more importantly, weakens our desire to protect those fundamental rights when it really matters. A solution for this? I don't really know. Civic education in high school? Constitutional law classes in college? Less grandstanding by politicians and more discussion of shared, fundamental values? Whose to say. Regardless, I would very much like to see more reasoned consideration of the content and meaning of our Constitution than I do today.