Contributions
What specific events or ideas contributed to its identification as a fundamental right?
| Right | Breakout | Contents |
|---|---|---|
| Freedom of Association | An array of historical events have contributed to the identification of the right to freedom of association as a fundamental right ranging from the red scare during the Cold war, guilt by association laws, and the dismantling of legislation permitting the existence of racial segregation. A specific event that contributed to the identification of freedom of association as a fundamental right was the emergence of the Civil Rights Act of 1964; this enactment historically marked the end of segregation and legally prohibited the discrimination of people on the basis of race, ethnicity, gender or religious affiliation. After this act was enacted into law, people living in the American South were free to associate with anybody regardless of their racial or ethnic identity. Although the Civil Rights act was an example of legal identification of the freedom of association as a fundamental right, this was not the first time in history that association was debated over whether or not it constituted a right. The introduction of the acknowledgment of the right to freedom of association begins with the existence of guilt by association laws, as well as labor union provisions. These legal prohibitions restricting an individual from freely exercising their right to association with people of their choosing point to the significance of the legal precedent permitting the right to freedom of association to remain protected under law.
An example of an event that led to the classification of the right to freedom of association as impenetrable liberty under the law is drawn from a ruling that was decided in the early 20th century but drew upon a case from the 1890s to point out the precedent that the right to freedom of association had under Missouri state law. “The distinction [of the right to freely associate] was of some significance in the criminal syndicalism cases of the early twentieth century precisely because the Missouri Supreme Court had three decades earlier (in 1896) invalidated a St. Louis vagrancy ordinance that sought to forbid residents from “knowingly...associat-[ing] with persons having the reputation of being thieves, burglars, pickpockets, pigeon droppers, bawds, prostitutes or lewd women or gamblers, or any other person, for the purpose or with the intent to agree, conspire, combine or confederate, first, to commit any offense, or, second, to cheat or defraud any person of any money or property.” It was here, in a context far removed from public meetings and speeches, that lawyers and judges first considered a right to freedom of association.” (Whittington, 2008, pg. 81). This specific analysis of the documented Missouri Supreme Court invalidation placed upon the St. Louis' vagrancy ordinance in 1896 underlined an imperative element to the right to freely associate; a state cannot legally abridge someone from willingly associating with people that are assumed to have a negative reputation or past history within the legal system. This legal precedent solidified the right to freedom of association as a federally protected right; prohibition of the freedom to exercise an individual’s right to freedom of association would result in federal action against a state that chose to interfere. Although the freedom to associate with people freely can include restrictions placed on an individual, there are indeed group prohibitions under the right to freedom of association. “Notions of political discrimination in the public workplace derived initially from the Cold War era in a series of cases dealing with loyalty oaths. Loyalty oath cases derived from the fear of the spread of Communism after the Russian Revolution in 1917. During this time and thereafter, many laws were passed in the United States which sought to limit the ability of Communists or Communist sympathizers from gaining government employment and undermining the government. In particular, numerous federal and state laws were passed prohibiting the holding of public employment by those who refused to swear that they had not had any connection with the Communist Party.” (Secunda, 2008, pg. 351). When the US government chose to reinforce fierce associative laws prohibiting the free exercise of choice to associate in groups with people that held different political ideological beliefs, the federal right to freedom of association was subjunctively infringed upon. During a volatile time for the US, while fighting against communist encroachment, the right to freedom of association was more or less viewed as something that could be used as a tool or weapon. By prohibiting the association of people in the US and Communists or supporters of the communist party, the US government was sending a clear message to those who aligned themselves with communism, that they would not be welcome to share their beliefs with other people through threats of blackballing or guilt by association. An example of ideological group association that was upheld as a right to the freedom of association occurred in 1984, in of Roberts v. US Jaycees case. “Moreover, group expression is deemed essential in a democratic society to preserve political and cultural diversity and to protect unpopular views from majoritarian control.” (pg. Jameson, 1985, 1065). This idea of group expression extends beyond intimate associations, in the Supreme Court case Roberts v. United States Jaycees, the national organization of US Jaycees limited their full membership status to men aged eighteen to thirty-five; and subsequently prohibited women and older men in the organization from being eligible for full-time memberships. Justice William J. Brennan ultimately ruled that the inclusion of women and older men in ‘associate’ memberships constituted an acknowledgment of membership status. Thus the Jaycees had no legal right to exclude them from associating with the organization as full-time members. This ultimately affirmed the state of New Jersey’s court decision to institute an antidiscrimination policy within the bylaws of the US Jaycees membership requirements. “In Roberts v. United States Jaycees, the Supreme Court reversed, holding that the state’s interest in eliminating gender-based discrimination justified the impact that requiring the Jaycees to admit women may have on the male members’ freedom of association.” (Jameson, 1985, pg. 1058). Although the U.S. Jaycees were a private organization, the prior inclusion of women and older men as part-time members led the court to rule in favor of the NJ state decision, the Jaycees could not legally restrict women from associating themselves as full-time members within the Jaycees organization. A situation that brought to light forceful infringements on the right to freedom of association occurred in the 2000s, following the exposure that the Boy Scouts of America excluded a scoutmaster from being a part of the organization after learning of his sexual orientation. “Boy Scouts of America v. Dale, 2000, US Supreme Court struck down this application of New Jersey’s anti-discrimination law on the ground that forcing the Scouts to allow homosexuals to be members and scoutmasters would alter the Scouts’ “message” and thus violate their First Amendment right of freedom of expressive association.” (Alexander, 2008, pg. 6). Due to the nature of the scout’s organizational message, specifically mentioning their goal to “instill clean and straight moral values”, the Supreme court ruled in favor of the organization’s right to freely associate with those that aligned with their moral values. This particular ruling signifies the dichotomy within the right to freedom of association; a private organization can restrict members from joining if their personal associations go against their organization’s message and central core tenets. The difference between this case and that of the US Jaycees case was rooted in how the organization viewed members. Boy Scouts of America subjectively denied homosexuals entry from their scout memberships and the entire program, whereas Jaycees had already included women and older men in their associative memberships within the organization. Thus, the supreme court aligned its rulings with factual precedent; if a state interfered with an organization's right to associate with those who they chose, then the federal government would step in and uphold the right to freedom of association as long as the provisions of membership were not violated. Therefore, it did not violate the Jaycees' right to freedom of association by allowing women and older men to move from part-time members to full-time. However, with BSOA, their organization’s values and the core central message would have been infringed upon if the court demanded that the Boy Scouts accept homosexuals as scout leaders and members. A circumstance in history where the right to the freedom of political association was upheld by the Supreme Court followed the exercise of discriminatory voting blocs by the Democratic party in Texas. “In Terry [Terry v. Adams, 1953], the Court prohibited a county in Texas from giving effect to what amounted to (successful) racial bloc voting. Democrats far outnumbered Republicans in the county, and thus the Democratic primary winners always prevailed in the general elections for county offices. Further, white Democrats appreciably outnumbered black Democrats within the county’s Democratic Party. Although the Court in one of the earlier White Primary cases had forced the Democratic Party in Texas not to discriminate against black voters in its primaries —which, after all, were run by the state itself out of tax revenues—and the Democratic primary in this county was indeed open to black voters, the white Democrats organized themselves into the Jaybird Club and held their own, privately supported “pre-primary primary.” (Alexander, 2008, pg. 5). The right to freedom of association does not necessarily extend to the right to freely exclude an entire group of people from a public political organization through the use of racial bloc voting. The Democratic party was prohibiting the right to freedom of association by not allowing Black voters to have a choice of whether or not they wanted to associate themselves with the candidate that the Jaybirds had elected. Historical events that contributed to a widespread belief in the importance of the right to freedom of association can be shown from the decision in the Supreme Court case Loving v. Virginia; decided in 1967, this case determined that Southern states were legally required to allow interracial marriages to be permitted under law. The Loving decision brought forth a significant argument in favor of the right to freedom of association, a state could not legally abridge the right to freely associate with people in intimate capacities. The right to freedom of group expression underlines the exceptions within precedent regarding the exercise of group political identities or participation with associative organizations. “Specifically, these cases dealt with the so-called "spoils system," or political patronage, which rewards public employment based on loyalty to a given political party. In Elrod v. Burns, for example, the plurality decision written by Justice [William] Brennan found that Illinois public employees, who were non-confidential, non-policymaking employees, could not be fired merely because of their partisan political affiliation." (Secunda, 2008, 352). The Burns decision highlights an interesting exception to the right to freedom of association, although the spoils system was legal under the Constitution, the use of political patronage against state employees for their political identity association was a direct infringement upon an individual’s exercise of the right to freely associate. In this particular IL public school, employees found themselves penalized for choosing to associate themselves with a particular political party or organization based on the principle that the state of IL deemed it appropriate to fire employees based on their political associations. Another example of protecting the right to freely associate intimately with another person is underlined by the decision in Lawrence v. Texas. In 2003, the Supreme court struck down a TX sodomy law as a violation of the Fourteenth Amendment. In an attempt to dictate the specific terms under the right to freedom of association, TX had formed a sodomy law prohibiting the free exercise of intimate forms of association. “‘Bowers had held that there was no constitutional right to engage in homosexual sodomy.' In overturning Bowers, Lawrence's central holding was that the Texas sodomy statute at issue furthered no legitimate state interest which could justify the intrusion into the personal and private life of the individual. The most important constitutional innovation wrought by this holding is the apparent attachment of some form of heightened scrutiny to the right to be free from decisional interference in matters of an intimate nature. Indeed, implicit in this holding is the need to balance individual privacy interests against legitimate and substantial state interests.” (Secunda, 2008, pg. 357). The significance of an intrusion on private associations in regards to exercising the freedom of association as a fundamental right divides the debate in half, a state government cannot abridge the freedom of association when deciding who someone can intimately be associated with under federal law. A legitimate state interest would need to be produced in order for an intimate association to be prohibited under TX state legislation. References: Alexander, Larry. "What is Freedom of Association, and what is its denial?." Social Philosophy and Policy 25, no. 2 (2008): 1-21. Epstein, Richard A. "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Stanford Law Review 66 (2014): 1241. Inazu, John D. "The Unsettling “Well-Settled” Law of Freedom of Association”, 2010. Jameson, Ann H. "Roberts v. United States Jaycees: Discriminatory Membership Policy of a National Organization Held Not Protected by First Amendment Freedom of Association." Catholic University Law Review 34, no. 4 (1985): 1055-1086. Secunda, Paul M. "Reflections on the Technicolor Right to Association in American Labor and Employment Law." Kentucky Law Journal 96, no. 3 (2008). Whittington, Keith E. 2008. “INDUSTRIAL SABOTEURS, REPUTED THIEVES, COMMUNISTS, AND THE FREEDOM OF ASSOCIATION.” Social Philosophy and Policy 25 (2). Cambridge University Press: 76–91. | |
| Freedom of Expression | The expression of thoughts, ideas, art, entertainment, and more started long before their rights were explicitly proclaimed or protected. The oldest piece of art archeologists have discovered dates back 45,000 years (Cascone, 2021). Archeologists have found objects from 400,000 years ago that “would probably have required a level of symbolic communication close to that of language.” Hunter gatherer societies had religion of their own (Peoples et al., 263, 2016). But while humans have been expressing themselves for millennia, the protection of their expression has not always been existent – especially when the content of their expression offends or hurts another party in some way.
David Konstan cited Arnaldo Momigliano, who explained: “In the second part of the fifth century and during the greater part of the fourth century every Athenian citizen had the right to speak [in the assembly] unless he disqualified himself by certain specified crimes.’ This freedom was, according to Momigliano, ‘an Athenian fifth-century idea’, and the term that best expressed it was parrhêsi” (Konstan, 1, 2012). However, as David Konstan argues, parrhesia was less of a “right” and more of a “license to express one’s views, whatever the context.” Athenian citizens understood it as “an expectation, a feature of social life.” Konstan compares the ideal to an American citizen who proclaims “This is a free country, isn’t it?” in response to “an attempt to silence them” (Konstan, 4, 2012). However, as evidenced by the trial of Socrates, this ideal is not always protected by law when the idea contradicts beliefs espoused by the community – for Socrates’ case, questioning the gods and thus “corrupting the youth.” On this trial, some “authors affirm the view of Athens as fundamentally tolerant, with Socrates’ trial, ‘the decision to prosecute an old man for saying and doing what he had been saying and doing for so many years,’ as an aberration, perhaps brought about by ‘the wounds of recent history’”, the recent history being the violent tyranny of the Thirty set in place by the victorious Spartans after the Peloponnesian War (Saxonhouse, 102, 2006). Socrates’ teaching of Critias caused a stir in Athens, likely contributing to his prosecution more on his association rather than the content of the expression itself. The events of the Enlightenment were essential to rights themselves and the development of expression among them. Expression can be understood as the dissemination of someone’s thoughts, thus touching on the ideals of individual ownership of self and self-agency. Locke defines freedom in his Essay Concerning Human Understanding as the “Power in any Agent to do or forbear any particular action, according to the determination or thought of the mind, whereby either of them is preferred to the other” (Locke, 303, 1690). Voltaire was one of the more prolific writers of the era, consistently firing back publicly and publishing satires. He was one of the most influential thinkers in the Enlightenment because of his willingness to challenge the status quo and stretch speech rights into the categories of the offensive, which inspired critique and dissension from others. In one of his dialogues, Voltaire said, “People say stupid and insulting things, but must speaking be forbidden? Everybody can write what they think in my country at their own risk…If it finds that you have spoken foolishly, it boos you; if seditiously, it punishes you; if wisely and nobly, it loves you and rewards you…Without the freedom to explain what one thinks, there is no freedom among men” (Voltaire, 140, 1994). The Enlightenment transformed the conception of rights for the Western world, and led ultimately to the important declarations of the rights to expression found in revolutionary documents. The first guarantee of expression was speech in the English Bill of Rights of 1689. Among the guarantees were rights found in the American First Amendment, including “the right to petition and freedom of speech and debate” (Vile, “English Bill of Rights”, 2009). The Massachusetts Body of Liberties in 1641 and the adoption of the Virginia Bill of Rights were early American colonial legislatures’ expression of the rights of free press and speech (FIRE, “History of Free Speech”, 2022). The first 10 amendments to the Constitution of the United States include the First Amendment – that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (National Archives, “The Bill of Rights: A Transcription”, 2023). All of these are tenets of free expression – they protect the people from prosecution of the state for expression or behaviors that counter state interests. In France, similar revolutionary ideals took form in the Declaration of the Rights of Man and Citizen in 1789, which states that “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law” (Yale Law Library, “Declaration of the Rights of Man – 1789”, 2008). These early expressions of the law include important things – that the government cannot restrict it, but most agreed that there are circumstances where free expression does not apply. To understand the idea of free expression, it is important to understand accepted exceptions to the expressed First Amendment right. Among these, the government has permitted laws which prohibit certain types of speech in specific times, places, and locations – such as imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property” (O’Neill, “Time, Place, Manner Restrictions”). Any restriction of this kind has to pass “a three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism (1989)…The regulation must be content neutral…It must be narrowly tailored to serve a significant governmental interest…It must leave open ample alternative channels for communicating the speaker’s message.” In this case, the Supreme Court ruled that New York City officials could control the volume of amplified music at rock concerts in Central Park without violating the First Amendment” (Hudson, “Ward v. Rock against Racism, 2009). The government may also restrict speech which falls into the categories of “incitement, defamation…obscenity, child pornography…and threats” (Volokh, “Permissible Restrictions on Expression”, 2023). The Supreme Court ruled on restrictions of incitement – defined as “speech [that] is forbidden because it incites, or is likely to lead to, violence or illegal actions” – in the landmark decision in Brandenburg v Ohio (Vile, “Incitement to Imminent Lawless Action”, 2009). In this case, Brandenburg, a member of the KKK, was convicted under Ohio law for statements that “alluded to the possibility of “revengeance” (sic) in the event that the federal government and Court continued to “‘suppress the white, Caucasian race.” The Supreme Court overturned the conviction and held that “advocacy could be punished only ‘where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’” (Walker, “Brandenburg v Ohio”, 2009). The second exception to free expression is defamation. Defamation deals with two types of tort action “that encompasses false statements of fact that harm another’s reputation”: libel and slander. Libel “generally refers to written defamation, while slander refers to oral defamation, though much spoken speech that has a written transcript also falls under the rubric of libel.” In New York Times Co. v Sullivan, the New York Times published an article with factual errors about protests occurring in Alabama. In the case, “The Court reasoned that ‘erroneous statement is inevitable in free debate’ and that punishing critics of public officials for any factual errors would chill speech about matters of public interest. The high court also established what has come to be known as ‘the actual malice rule’.” This rule says that the offended party “must prove by clear and convincing evidence that the speaker made the false statement with ‘actual malice’ — defined as ‘knowledge that it was false or with reckless disregard of whether it was false or not’” (Hudson, “Defamation”, 2020). The third and fourth exceptions are obscenity and child pornography. Obscenity “refers to a narrow category of pornography that violates contemporary community standards and has no serious literary, artistic, political or scientific value” (Hudson, “Obscenity and Pornography”, 2009). The test for obscenity comes from Miller v California, a case where “the Supreme Court upheld the prosecution of a California publisher for the distribution of obscene materials.” The test in this case has three parts: “‘Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value’” (Hudson, “Miller v. California”, 2009). The last exception to the first amendment is true threats. The test case for this exception is Virginia v Black, where a statute banning crossburning was upheld in the state of Virginia. The court’s reasoning was “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death’” (O’Neill, “True Threats”, 2017). These exceptions to the first amendment illustrate that the right is not absolute in American jurisprudence, and the intent and manner of the speech – as illustrated above – weighs heavily in whether or not it is permissible. References: “The Bill of Rights: A Transcription.” 2023. National Archives and Records Administration. National Archives and Records Administration. April 21. https://www.archives.gov/founding-docs/bill-of-rights-transcript#:~:text=Amendment%20I-,Congress%20shall%20make%20no%20law%20respecting%20an%20establishment%20of%20religion,for%20a%20redress%20of%20grievances. Cascone, Sarah. 2021. “Archaeologists Have Discovered a Pristine 45,000-Year-Old Cave Painting of a Pig That May Be the Oldest Artwork in the World.” Artnet News. December 9. https://news.artnet.com/art-world/indonesia-pig-art-oldest-painting-1937110#:~:text=Archaeologists%20believe%20they%20have%20discovered,at%20least%2045%2C500%20years%20ago. David L. Hudson, Jr. 2020. Defamation. May 14. https://mtsu.edu/first-amendment/article/1812/defamation. “Declaration of the Rights of Man - 1789.” 2008. Yale Law School Lillian Goldman Law Library - The Avalon Project. https://avalon.law.yale.edu/18th_century/rightsof.asp. “History of Free Speech.” 2022. The Foundation for Individual Rights and Expression. https://www.thefire.org/history-free-speech#timeline--23542--2. Hudson, David L. 2009a. “Obscenity and Pornography.” Obscenity and Pornography. https://mtsu.edu/first-amendment/article/1004/obscenity-and-pornography. Hudson, David L. 2009b. “Ward v. Rock against Racism.” Ward v. Rock against Racism. https://mtsu.edu/first-amendment/article/370/ward-v-rock-against-racism. Hudson, David L. 2009c. Miller v. California. https://mtsu.edu/first-amendment/article/401/miller-v-california. Konstan, David. 2012. “The Two Faces of Parrhêsia*: Free Speech and Self-Expression in Ancient Greece: Journal of the Australian Society for Classical Studies.” Proquest. Antichton. https://www.proquest.com/docview/1459226473?parentSessionId=2riArMLT%2B2G%2FrXHB8pHqr%2B%2FkAK%2FBkJYL8QsEw3yaHAg%3D&pq-origsite=primo&accountid=6167. Locke, John. 1690. An Essay Concerning Human Understanding. PinkMonkey. https://pinkmonkey.com/dl/library1/book1284.pdf. O’Neill, Kevin Francis. 2009. “Incitement to Imminent Lawless Action.” Incitement to Imminent Lawless Action. https://mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action. O’Neill, Kevin Francis. 2009. “Time, Place and Manner Restrictions.” Time, Place and Manner Restrictions. https://mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions. O’Neill, Kevin Francis. 2017. “True Threats.” True Threats. https://mtsu.edu/first-amendment/article/1025/true-threats. Peoples, Hervey C, Pavel Duda, and Frank W Marlowe. 2016. “Hunter-Gatherers and the Origins of Religion.” Human Nature (Hawthorne, N.Y.). U.S. National Library of Medicine. September. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4958132/. Rickless, Samuel. 2020. “Locke on Freedom.” Stanford Encyclopedia of Philosophy. Stanford University. January 21. https://plato.stanford.edu/entries/locke-freedom/. Saxonhouse, Arlene W. 2006. Free Speech and Democracy in Ancient Athens. EbscoHost. Cambridge: Cambridge University Press. Vile, John R. 2009a. “English Bill of Rights.” English Bill of Rights. https://www.mtsu.edu/first-amendment/article/865/english-bill-of-rights#:~:text=The%20document%2C%20which%20initially%20came,U.S.%20Constitution%2C%20to%20members%20of. Volokh, Eugene. 2023. “Permissible Restrictions on Expression.” Encyclopædia Britannica. Encyclopædia Britannica, inc. June 30. https://www.britannica.com/topic/First-Amendment/Permissible-restrictions-on-expression. Voltaire, Frangois Marie, and David Williams. 1994. Political Writings. Cambridge University Press. Cambridge England: Cambridge University Press. https://doi.org/10.1017/CBO9781139170451. Walker, James L. 2009. Brandenburg v. Ohio. https://mtsu.edu/first-amendment/article/189/brandenburg-v-ohio. | |
| Freedom of Religion | After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.
Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state. Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on. Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance. Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere. Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects. References: Locke, “Letter Concerning Toleration” Spinoza, The Chief Works of Benedict De Spinoza Voltaire, Voltaire. Toleration and Other Essays. New York: G. P. Putnam’s Sons, 1755. https://oll.libertyfund.org/title/mccabe-toleration-and-other-essays. Roger Williams, “The Bloudy Tenent of Persecution” | |
| Freedom of the Press | In 1789, notably before the Bill of Rights was adopted, Massachusetts Chief Justice William Cushing wrote, “The propagating literature and knowledge by printing or otherwise tends to illuminate men's minds and to establish them in principles of freedom. But it cannot be denied also, that a free scanning of the conduct of the administration and shewing the tendency of it, and where truth will warrant, making it manifest that it is subversive of all law, liberty, and the Constitution; it can't be denied.” Cushing seemed to be concerned with sedition and libel, which had been the subject of prosecutions, such as the Zenger case in 1735, throughout the pre-revolutionary American colonies. A decade later, the Federalist Party in the 5th Congress with John Adams as president, passed the Alien and Sedition acts which clamped down on free speech and press before later being rolled back under Thomas Jefferson’s administration. (Charles & O'Neill 2012)
The role of adversarial press in both the American and French revolutions should not be neglected as foundational events that contributed to the identification of the right to a free press; pamphleteering, self-publishing, and revolutionary periodicals were important uses of media that furthered public discord, and were largely viewed as instrumental to the success of the revolutions—something Chief Justice Cushing later referred to in his 1789 letter to John Adams. The institution of an adversarial press was thought to provoke a responsive government, and ultimately be a way of avoiding violent revolution by creating public pressure. Following the French Revolution, the full-scale liberation of the press was established—upending much of the established models of publishing and paving the way for later reforms that ultimately shaped modern copyright and piracy protections. This, depending on how broad a conception of free press we consider, may have been a certain sort of backsliding. (Wresch 2003) A few years removed from Cushing’s letter to John Adams, the United States Constitution was amended with the Bill of Rights, which protected the freedom of expression and press as a foundational aspect of human liberty. (That is to say, for example, the American third amendment right to be free from quartering soldiers was created in response to the living memory of the abuse under colonial rule.) In the case of the freedom of the press, the abuses to publication in both France and the United Stated in their pre-revolutionary periods set the stage for the protection of the freedom of the press in these given case studies. In 1804 Jefferson said “While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so. They have accordingly, all of them, made provisions for punishing slander, which those who have time and inclination resort to for the vindication of their characters." (Scherr 2016) In the American context, the protections for the freedom of the press gradually expanded to the states through the Fourteenth Amendment, with the landmark Supreme Court case Near v. Minnesota in 1931. Prior restraint was deemed unconstitutional even on the state level, and the protections for a free press were expanded accordingly. Internationally, the recognition of the freedom of the press, and human rights more generally, came much more recently in history. Following the Second World War, the United Nations convened in 1948 to draft the Universal Declaration of Human Rights (UDHR). As the human rights theorist Henry Shue suggests in his book Basic Rights, human rights are often created in response to reliable and predictable threats of abuse, most often those that are in living memory. In response to the violations of human rights that took place during World War II, the assertion of certain universal human rights were take up so as to set a standard for the international community, and be regarded as the net beneath which no one should be allowed to fall. Article 19 in the UN Universal Declaration of Human Rights states, “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.” The flexibility of the wording of this right in the UDHR serves as a method for ensuring that there need not be constant revisions as technology and culture advance around the world, and also to avoid creating an implicitly hierarchical list or pyramid of forms of expression that must be protected above all else. The sedimentation of the right into International human rights law has continued long after being drafted into the UDHR. “Since its inclusion in Article 19 of the Universal Declaration of Human Rights, the right to freedom of opinion and expression has been protected in all of the relevant international human rights treaties. In international law, freedom to express opinions and ideas is considered essential at both an individual level, insofar as it contributes to the full development of a person, and being a foundation stone of democratic society.” (Howie 2018) References: Patrick J. Charles & Kevin Francis O'Neill, Saving the Press Clause from Ruin: The Customary Origins of a Free Press as Interface to the Present and Future, 2012 UTAH L. REV. 1691 (2012) Emily Howie (2018) Protecting the human right to freedom of expression in international law, International Journal of Speech-Language Pathology, 20:1, 12-15, DOI: 10.1080/17549507.2018.1392612 Near v. Minnesota 283 U.S. 697 (https://www.oyez.org/cases/1900-1940/283us697) Scherr, A. (2016). Thomas Jefferson, the “Libertarian” Jeffersonians of 1799, and Leonard W. Levy’s Freedom of the Press. Journalism History, 42(2), 58-69.) Shue, Henry. Basic Rights : Subsistence, Affluence, and U.S. Foreign Policy. 40th anniversary edition. Princeton: Princeton University Press, 2020. Universal Declaration of Human Rights: https://www.un.org/en/about-us/universal-declaration-of-human-rights Wresch, William. "Perspectives on the Right to Publish: Global Inequalities, Digital Publications, and the Legacy of Revolutionary France." Ethics and Information Technology, vol. 5, no. 2, 2003, pp. 117-127. | |
| Privacy Rights | Privacy, conceptualized as a named legal right, has been fairly new. As stated by Negley, “Few philosophers would argue that privacy is a "natural" right or that the intrinsic nature of privacy establishes it as a legal right” (319). Rather, identification of privacy as a right and not just a value has resulted from various violations of the right throughout modern history. In a United States context, the right to privacy is often associated with the Supreme Court case, Griswold v. Connecticut in 1965, in which the Court overruled a Connecticut law banning contraceptives for married couples by using “the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution” (“Privacy”). Griswold expanded and highlighted legal and political discourse around privacy as a specific right protected by the US Constitution. The Third and Fourth Amendments, which deal with quartering soldiers in citizens’ houses and unlawful searches and seizures of citizen property, came about because colonists felt violated by the British government’s actions to maintain control of the colonies in the years leading up to the Revolutionary War: “The 1774 [Quartering] Act expanded British officers’ ability to refuse unsuitable housing and seize ‘uninhabited houses, out-houses, barns, or other buildings’ for purposes of quartering soldiers,” (“Historical Background”). Additionally, “the colonists, still under the thumb of the British king, were subject to arbitrary and invasive searches under the “Writs of Assistance,” which allowed British troops and government officials to search homes and private property looking for goods that were imported illegally or on which a tax had not been paid,” (Burling, 2021). This context contributed to early codification of rights related to privacy in the United States.
These efforts resulted in much discourse about the right to privacy, with supporters claiming that the surveillance was justified under the protection of national security, and opponents arguing that the widespread and invasive nature of the programs was not necessary and therefore a major violation of the right to privacy (“Constitutional Amendments”). Additional events that contributed to privacy being considered as a fundamental right were the Snowden and Cambridge Analytica scandals, which also brought the right to privacy to light in an international context. Though the right to privacy is enshrined in Article 12 of the United Nations Universal Declaration of Human Rights, according to Humble “the right to privacy has historically not been at the forefront of discussions within the international community and the United Nations. This position changed after the Edward Snowden and Cambridge Analytica revelations.” In 2013, Edward Snowden leaked information on the National Security Agency’s information-gathering programs, revealing “how vulnerable our everyday digital communications are to government surveillance, and how much governments want to collect our information, no matter how trivial or unrelated it may be to any tangible national security threat” (PoKemper, 2014). Additionally, the Snowden scandal changed “the vocabulary through which [the right to privacy] was articulated. At the UN, states are supposed to employ a universal vocabulary, enabling therefore claims for the recognition of privacy as a human right. The enactment of a universal vocabulary destabilizes the core of mass surveillance practices,” (Bauman et al., 2014, 128-129). The Cambridge Analytica scandal, which revealed how users’ personal data on the Facebook social media platform was being collected and used, similarly shed light on issues relating to data privacy rights around the world. The scandal also highlighted users’ opinions about their right to privacy. In a study of young adults in Israel who chose to continue their use of Facebook after the scandal, “in-depth interviews suggest that users perceive privacy not as an integral component of one’s civil rights but as a negotiable commodity traded according to societal norms,” and that “it is the users’ responsibility to manage their privacy, as it is Facebook and other social media companies’ right to profit from activities on their platforms” (Afriat et al., 2021, 116). These individuals viewed privacy not as a fundamental right but rather as a commodity. As technology around the world advances, discourse about the right to privacy as a fundamental right will likely become more present.
References:
PoKemper, Dinah. 2014. “Dispatches: How Snowden Changed the World.” Human Rights Watch. https://www.hrw.org/news/2014/06/05/dispatches-how-snowden-changed-world?gad_source=1&gclid=CjwKCAjw5Ky1BhAgEiwA5jGujvY_OUa9teDuEfKpXAEkeAFI7h7HVZPk-sobJksUty5h4NiQVLrOXxoCA1sQAvD_BwE
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