Any right sometimes has to be overridden

Let’s Talk Opinion in conversation with JONATHAN TURLEY

“Faced with ongoing protests over economic conditions, the Spanish government is about to make insulting police officers and protesting without permission crimes punishable by fine greater than dealing drugs or prostitution. Not since Franco has the country turned so decidedly against civil liberties and free speech.”

Spain Moves Toward Heavy Fines For Insulting Police And Protesting Without Permission

Albin Amelin|Civilization in General Franco's Way

Albin Amelin|Civilization in General Franco’s Way

Current attacks by the Spanish government against a fundamental right in a democracy, that of the freedom of speech, has determined me to return to the subject. Many of you will have strong opinions about this and I invite you to consider my position and share your own.

The concept of rights has never had as much weight and popularity in the West as it has gained since the American and French revolutions. Today rights are at the centre of modern politics and at the very heart of democracy, as Roger Baldwin said: “So long as we have enough people in this country willing to fight for their rights, we’ll be called a democracy.” But let’s consider this: does any right sometimes have to be overridden?

To answer this question, we have to consider what it is that we mean by the term itself, and then we’ll take a look at the “over-rider” in question in view of current debates.

Now there are too many definitions of rights for us to be able to exhaust them in this context, so I will only give you one – the one which I think is most relevant to this present discussion:

“Rights … are like an insurance policy: something offering security to fall back on.”  (Wolff, 1996: 219)

If rights are no more than a security net for the eventuality when everything else has failed, we must ask this: who would request for this last resort to be given up and for what reasons. As the state has a monopoly of force and thus is more likely to infringe individual rights than any other political actor, and since our current wanna-be infringer is the Spanish state, we can limit the debate to states and their representatives.

After the Second World War human rights have attained primacy in political discourse and in most liberal agendas, as the atrocities of the Nazi regime were unveiled one by one, shocking the world beyond imagination. The United Nations declared that basic freedoms and rights should not be denied to any human being if the horrors of the Holocaust are not to be repeated:

“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want …” (1948, http://www.un.org/Overview/rights.html).

So this is what the Spanish government is currently trying to demolish in its actions and by doing this it aims to plunge its citizens into a world of fear and unfreedom. You may think that this is only Spain, why should the rest of us care? But as Jonathan Turley rightly warns: “as economic and social tensions grow, such measures may expand throughout Europe.” and I would add to this that America has reason to be concerned as well.

Several points are to be considered in dealing with the issue of overriding rights: should  governments give pre-eminence to some rights over others? Are they in their right – excuse the pun – to make a distinction between primary and secondary or prima facie rights? If so, it is important to investigate whether governments should be free to eradicate secondary rights when viewed as necessary.

But what rights are primary and which are not? Which of our rights should be deemed unalienable: civil rights, political rights or socio-economic rights?

To my knowledge there are three types of rights: First-generation rights represent traditional liberties and include freedom from arbitrary arrest, free speech, the right to vote, religious toleration and so on. Second-generation rights refer to social rights such as the right to education, housing, health care, employment and an adequate standard of living. While first and second-generation rights deal with individual rights, third-generation rights are rights accorded to collective bodies such as ethnic communities and peoples in general and include minority language rights, national rights to self-determination and the right to peace, environmental integrity and economic development.

It is clear that each generation of rights has been building upon the one preceding it. When it comes to unalienable rights, I’d say that first-generation rights – of which free speech is a part[1] – would certainly be amongst those that we must be called to defend first and foremost.

Freedom of speech is not an issue of abstract debate, as Rowan Artkinson put it: “The freedom to criticise ideas is one of the fundamental freedoms of society” and when it comes to breaking the law (which presumably is the government’s concern in Spain)  there are already sufficient laws to deal with extreme situations.

I agree with Raz when he says that “there can be no legitimate reason for curtailing it [freedom of speech], since its possession and its exercise do no one harm. Words do not kill.

In a truly democratic and multicultural society, it is essential that criticism and free expression of disagreement, condemnation and even hostile views and attitudes should be protected, in order to avoid the endorsement of an illiberal society, where only those who express approved views are allowed to express them. 

In conclusion I would like to say this. The Spanish government may argue that some rights, such as freedom of speech, religious toleration, peace, and economic development, for example, are prima facie and thus could be overridden sometimes, when it is essential to the maintenance of security and evasion of calamity. However, if history has taught us anything it must be this: all these are indispensable rights and should not be overridden under any circumstances. These are the rights that give people a sense of worth and a sense of human dignity, thus their status of absolute rights is essential to the perpetuation of democracy, and more importantly, to the safeguarding of humanity itself.

*

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[1] As stated in the Universal Declaration of Human Rights, Article 19. “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Also available on-line at: http://www.un.org/Overview/rights.html

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4 thoughts on “Any right sometimes has to be overridden

  1. What about hate speech? I’ve had some heated discussions when I tell people that I support free speech for the Ku Klux Kan and the Westboro Baptist Church. I dislike what they say. In fact, I get physically ill at times, but I’m more concerned about their actions rather than words. What’s your take on that?

    • This appears to be another matter of penchant, balancing between liberal-democratic beliefs in freedom of opinion and expression , and the language that multiculturalism can take against religion.
      A few years ago the UK government proposed a bill to outlaw inciting religious hatred and this stimulated this on-going controversy regarding freedom of speech. Rowan Atkinson launched a campaign against the bill and argued that this was a fundamental freedom of society and other laws should be used to deal with hatred speech. In truth there were already sufficient laws for this. Over legislation became the rule during the Blair years.
      I think that in a democratic and multicultural society it is essential that criticism of rival ways of life – even when these views are expressed in hostile language – should be protected. Without such protection we would be unable to promote pluralism, which as far as I can see is an integral part of modern liberal society.
      Nonetheless, making legislation to prohibit criticising religious and other ways of life will neither eradicate hatred, nor stop it from being expressed through media that is more difficult to regulate, like the internet. Conversely, this may augment the appeal of illicit language by giving it an aura of anti-establishment valour.
      So, in short, I agree with your Bradley. Even when I disagree with the views expressed, I would nonetheless defend the right for them to be expressed. As for actions, there is usually legislation to deal with that so curtailing freedom of speech won’t help with that.
      Thank you for raising this point. It’s certainly a very important one when it comes to the topic of rights, and especially freedom of speech.

  2. A contentious topic, to be certain. I would argue that ideas and the words that express those ideas are more powerful, for good and for evil, than are weapons. Surely this is not lost on the Spanish Government.

    As for words not killing, more innocent human life has perished due to the words “A woman’s right to her body” than all who perished by arms in WWII. Indeed, in my second book I build upon a unified construct of gender narcissism to positive a related gender narcissistic aetiology between the Holocaust and abortion. I hold these to be gender narcissistic analogues in terms of social phenomena.

    I suppose we shall see how well or how poorly Canada tolerates freedom of speech in a relatively short period of time.

    I would suggest that reasonable freedom of speech includes criticizing police, but not necessarily insulting them. No right is absolute, and one could make the counter argument that groundlessly insulting a person is an unjustifiable assault on their (psychological/emotional) security of person. (I would also suggest that the freedom of speech was intended to protect the expression of controversial or unpopular thought. Thus, I would suggest that pornography does not enjoy protection under freedom of speech or freedom of expression, without expression an opinion on its desirability or merit.)

    Yet there must be a wide latitude for protection of rights. Never should a Socrates or a Copernicus or a Galileo be silenced. The default position is always that a right remain inviolable until proven otherwise through due process, with the burden of proof being upon she or he who would infringe upon or deny a right.

    Bradley also asks an insightful question.

    Good post, Vic. Thought provoking.

    • Thank you, navigator and thank you too for your extensive comment. You raise many important points.
      Ideas do have power and how we interpret them certainly matters. This is one of the reasons I wanted to write this post, in the hope that it would give us a little pause to reflect on an issue that although of the moment, oftentimes is taken for granted.
      We take rights to be somehow natural, but the truth is that rights are only valid in the context of a society. They were fought for, and being protected by state institutions, it is the state that is best placed to also remove that protection and breach them.
      On a freedom of speech that “includes criticizing police, but not necessarily insulting them.” I would say that when police and civilians clash, if all that civilians do is use words as a form of attack – by insulting – the balance of actual power still rests with the police and to punish a civilian for use of abusive language, appears to me an overreaction. To fine the kind of money that the Spanish government are talking about which runs into the tens of thousands of Euros seems grossly excessive given the “offence.”
      Thank you again. I’m glad we’ve got a little bit of a debate going.
      Regards,
      Vic

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