Other fundamental

Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?

Right	Breakout	Contents
Freedom of Association		The right to associate - specifically, the right for associations to exclude people from membership for whatever reason they want - may conflict with the right not to face discrimination based on immutable characteristics such as race and gender. The US Supreme Court has decided cases where an association’s decision to exclude members conflicts with non-discrimination law. In Roberts v. US Jaycees ( 1984) , the court rejected the free-association claim of a male-only business organization because its association was neither “expressive” nor “intimate.” In Boy Scouts v. Dale ( 2000) , however, the court held that the Boy Scouts of America could exclude gay members because not being able to do so would violate the organization’s right to expressive association. Free expression is critical to the practice of free association. The US Supreme Court explicitly protects “expressive” association because many associations exist to express a particular viewpoint. If a government restricts the advocacy of certain ideas, it will almost certainly restrict the activity of groups whose purpose is to express those ideas. Additionally, freedom of association depends on the free exercise of religion. As Locke wrote in A Letter Concerning Toleration, a church is a “a society of members voluntarily uniting” (Locke 1689, 9). Religious observance often requires worship in large groups, so restricting these religious practices entails the abridgement of free association. Roberts v. US Jaycees: https://supreme.justia.com/cases/federal/us/468/609 Boy Scouts of America v. Dale: https://www.oyez.org/cases/ 1999/ 99-699 A Letter Concerning Toleration: https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf
Freedom of Expression		Rights to privacy may in some cases conflict with the right to free expression. For instance, according to Duke University Law Professor George Christie, there are cases in Europe in which speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). However, Christie argues that this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie). As explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression. Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression. In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “"directed at inciting or producing imminent lawless action and is likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted. References: Christie, George. "Private: The Conflict between Freedom of Speech and Other Rights and Values." ACS Expert Forum (2011). https://www.acslaw.org/?post_type=acsblog&p=7987 "Freedom of Speech: Historical Background." Cornell Law School. Legal Information Institute. https://www.law.cornell.edu/constitution-conan/amendment-1/freedom-of-speech-historical-background Govindu, V. “CONTRADICTIONS IN FREEDOM OF SPEECH AND EXPRESSION.” The Indian Journal of Political Science 72, no. 3 (2011): 641–50.
Freedom of Religion		The freedom of religion possess two main components: “The first is the right to freedom of thought, conscience and religion, which means the right to hold or to change one’s religion or belief and which cannot be restricted under any circumstances. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others” (Donald and Howard 2, 2015). The practice of freedom of religion often conflicts with several other guaranteed freedoms due to its intersectional nature, and can therefore, legally be restricted when it encroaches upon other fundamental and guaranteed human rights. In 2015, when the US Supreme Court deemed same-sex marriage constitutional, religious freedom cases flooded state legislatures and courthouses, many of which were seeking exceptions to anti-LGBTQIA+ legislature under the basis of religious beliefs (Russell-Kraft, 2017). Some of these cases, including the previous 2013 case of Elane Photography v. Willock, represent the power of the freedom of expression, the freedom to be married, and the right to not be discriminated against, to undermine certain instances of the practice of the freedom of religion. This case was between two women who sought to hire photography company Elane Photography for their wedding ceremony and the named photography company who refused to provide services due to religious reasons. The case eventually was ruled in favor of the same-sex couple citing that the state of New Mexico prohibited any discrimination on the basis of sexual orientation, and that the claims of the photographer for her freedom of religion and speech were not protected in this case due to the (Russell-Kraft, 2017). The Constitution does indeed “have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up” (Russell-Kraft, 2017). When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015) All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. One example regarding the right to non-discrimination and freedom of conscience favoring the rights of freedom of religion is the 2013 case of Eweida and Others v UK. The outcome of this case saw a contrary ruling to that of the Elane Photography v. Willock case. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed that the freedom to not to be discriminated against on the ground of sexual orientation is, in fact, protected under the Convention on human rights and that difference in treatment requires significant and legal justification and legitimate reasoning for doing so; however, in this case, the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The two opposing cases demonstrate the flexibility and conflicting natures of fundamental rights such as that of conscience and non-discrimination both for and against the practice of freedom of religion. The ECtHR recognizes further the conflicting rights of people to teach others about their religion or belief in contrast with the right of other people to be free from interference with their own freedom of religion or belief (which encompasses their right to be free from religion or belief): “For example, the European Centre for Law and Justice has argued within the Council of Europe for a ‘general provision reaffirming the fundamental right to freedom of religious opinion’ and argues that the concept of hate speech should ‘never end in a limitation of free speech’ (emphasis added). However, this is not entirely possible, seeing as international human rights laws draw limitations to ensure that conflicting rights in each particular case are proportionally balanced so that neither right in question is inappropriately sacrificed” (Donald and Howard 9, 2015). Lastly, even the freedom of assembly, which is guaranteed by Articles 20 of the Universal Declaration of Human Rights, 21 of the International Covenant on Civil and Political Rights and 11 of the European Convention on Human Rights comes into conflict with the freedom of religion. Some instances of peaceable assemblies such as LBGTQIA+ rallies have been prohibited and/or confined to venues out of public sight: “Where these events are not prohibited and do take place, there is often inadequate protection of participants by law enforcement agencies. This not only infringes the right of LGBTI people to freedom of expression and assembly, but it also makes them vulnerable to discrimination, abuse and violence… Despite these principles, claims based on religious conscience expressed in morally absolute terms persist” (Donald and Howard 10, 14, 2015). The rights of non-practicing individuals often conflict with the rights to freedom of religion. Furthermore, the concept of “freedom from religion” questions the strength of freedom of religion, as many believe that non-practicing individuals have an equally important right to not be subjected to religious practices (Sapir and Statman). Often this results in conflict between state power and religious rights, as the state is often expected to protect the rights of non-religious individuals. Gidon Sapir and Daniel Statman note how freedom from religion manifests itself, claiming “a law prohibiting the sale of goods on the sabbath would violate the would-be vendors freedom from religion.” Demonstrated by Sapir and Statman, religious rights may be contested when they conflict with the laws prescribed by the state upholding the rights of non-practicing individuals, for example that stores can operate on the sabbath day. In this way, the rights of non-religious individuals, as supported by the state, can act to diminish the power of religious rights. Additionally, conflicts of religious rights and the rights to free association have been notably observed throughout American jurisprudence. Most predominantly, this issue manifests itself in issues pertaining to First Amendment rights and civil rights. For example, the right for an individual to identify as LGBTQ+ has often been at odds with the Free Exercise Clause of the First Amendment. This was observed in Masterpiece Cakeshop v. Colorado Civil Rights Commision, when a Colorado bakery asserted their First Amendment rights to deny a gay couple service, arguing that “it would displease God to create cakes for same-sex marriages.” In response to the bakery’s actions, the couple sued, claiming that their rights to non-discrimination as protected by Colorado’s Anti-Discrimination Act had been violated. Although challenged by the couple’s discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission ultimately demonstrated that the right to free religious exercise has historically infringed upon individual’s rights to non-discrimination, as the Supreme Court ruled in favor of the bakery, claiming that under the Free Exercise Clause the bakery was permitted to deny service to the couple. Thus, while civil rights often create a legitimate conflict with religious rights, religious rights often take precedence. Though, as the issue of discrimination and religious rights has evolved, the strength of the First Amendment has weakened, reinforcing Civil Rights. Observed by the Bostock v. Clayton County decision, the Supreme Court now upholds that discrimination against LGBTQ+ individuals is a violation of Title VIII of the Civil Rights Act (Hollis-Brusky). This landmark decision curtails many of the arguments, such as those made by the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commision, which had previously bolstered the rights to religious freedom over the rights of LGBTQ+ individuals. Furthermore, unlike the justices concluded in Masterpiece Cakeshop v. Colorado Civil Rights Commision, Bostock’s support of the primacy of civil rights undermines the belief that the First Amendment can be used to legally protect individuals who discriminate against LGBTQ+ individuals. Thus, exhibited by the Bostock v. Clayton County case, freedom of religion, specifically the Free Exercise Clause, can be limited by civil rights to non-discrimination. REFERENCES: Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London. Hollis-Brusky, Amanda, “The Supreme Court Closed the Door on LGBTQ Discrimination. But it Opened a Window.” Monkey Cage at The Washington Post. June 16, 2020. Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York. Stephanie Russell-Kraft, The Clash Between Religious Freedom and Equality Law, John C. Danforth Center on Religion and Politics 2017 St. Louis. Sapir, Gidon, and Daniel Statman. “Why Freedom of Religion Does Not Include Freedom from Religion.” Law and philosophy 24, no. 5 (2005): 467–508.
Freedom of the Press		A fundamental right that tends to conflict with freedom of the press is the right to privacy, which includes the protection of reputation. Two common conflicts between freedom of the press and the right to privacy are that between the right to publish and privacy and that between the right of the press to obtain information and the right to privacy. Beginning with the conflict between the right to publish and privacy, the issues concern the disclosure of embarrassing factual information about a person and the publishing of information that falsely displays a person to the public (Emerson 1979, 332). Historically, in cases where privacy law is applicable, the courts have tended to balance the importance of the publication for news purposes with the extent of the invasion of privacy. For instance, if the publication is not thought to be newsworthy or necessary, but most people would view it as offensive, the court would allow a claim to privacy. Although, the same claim to privacy may not stand in a case in which the publication is considered newsworthy. Similarly, in defamation cases, courts consider the extent to which reputation is harmed, and therefore courts may be more likely to protect the reputation of a public figure over that of someone more private (Emerson 1979, 333). A specific case involving the conflict between the right to publish and privacy is Time Inc. v. Hill which took place in 1967 (Time, Inc. v. Hill 1967) . Hill and his family were held hostage in their home in 1952, and upon being released unharmed, they moved homes and requested limited publicity about what took place. Later, a novel came out about a similar situation which was also made into a play. Life magazine published an article about the play suggesting that it was a depiction of what happened to Hill’s family, even though the play reflected various incidents. The family sued for damages on the grounds that Life had knowingly presented false information about the Hill incident. Life suggested that the article was of public interest and was not published with malicious intent. The court determined that the Life article was not intended to be a source of news, but was rather distributed for advertising purposes. Subsequently, the family received compensatory damages (Time, Inc. v. Hill 1967) . Another specific example is Cox Broadcasting Corporation v. Cohn which took place in 1975 (Cox Broadcasting Corporation v. Cohn 1975) . Cohn was the father of a seventeen year old girl who had been raped and killed in Georgia. Cox Broadcasting had obtained the girl’s name from public records and broadcasted the name during a news report. According to a Georgia privacy statute, names and identities of rape victims cannot be publicized. The court ultimately decided that the girl’s name was not a matter of public interest, and hence sided with Cohn, that the incident was an invasion of privacy (Cox Broadcasting Corporation v. Cohn 1975) . From these two cases, it is clear that at times, the right to privacy can limit the First Amendment right to freedom of the press, especially in cases presenting information in a false light. The second main conflict is that between the right to privacy and the right to obtain information. The press has a right to obtain information voluntarily from private sources, however, it does not have the right to compel such information. The press is generally restricted by laws against wiretapping, trespass, theft, etc. In terms of receiving information from government sources, the press can claim the constitutional right to know. The right to know is used for the purpose of informing and transmitting information to the public, especially when the government is barring such communication (Emerson 1979, 333). There have however been cases in which the right of the press to obtain information has been limited for privacy concerns. For instance, in Pell v. Procunier journalists were prevented from interviewing prison inmates (Pell v. Procunier 1974) . Similar to the conflict between the right to publish and privacy, in many cases involving the right of the press to obtain information, the court attempts to balance the public’s right to know with privacy concerns. In the case of Pell v. Procunier, interviewing the inmates would not have provided the public with important information regarding the conditions of the prisons, and therefore the privacy of the inmates was upheld (Pell v. Procunier 1974) . As of 1996, the Federal Freedom of Information Act was passed which gives public access to many federal records. However, there are nine exemptions to the Act that restrict public access to certain health and medical records, documents for the purpose of law enforcement, trade secrets or classified documents, among others. These exemptions are commonly referred to in right to know cases. Additionally, the Government in Sunshine Act of 1976 ensures that federal agency meetings are open to the public. An exception to this act is made in cases where the meetings contain, “information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.” The phrase, “clearly unwarranted invasion of personal privacy” has been broadly interpreted. Overall, the conflicts surrounding freedom of the press and privacy lack consistent legal procedure (Emerson 1979, 351). References: Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975): https://www.oyez.org/search/Cox%20Broadcasting%20Corporation%20v.%20Cohn Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360 Pell v. Procunier, 417 U.S. 817 (1974): https://www.oyez.org/cases/1973/73-918 Time, Inc. v. Hill, 385 U.S. 374 (1967): https://www.oyez.org/cases/1965/22
Privacy Rights		As Warren & Brandeis suggest in The Right to Privacy ( 1890) , the right to privacy directly conflicts with freedom of the press and speech. They wanted to protect people from writings beyond what defamation and publishing law covered. However, by proposing privacy protections that extended beyond these laws, they were inherently limiting what could be published. While this limitation was intentional, it was sure to be contentious as the First Amendment had been in place and protected for nearly 100 years and privacy rights were not prominent in any part of the world before this time. The First Amendment reads, “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” (US Constitution, 1787, Amd. 1). The United States Supreme Court Cases offer plenty of examples of press and privacy rights conflicting, as “the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy” (Briscoe v. Reader’s Digest Association, Inc., 1971) . In some cases, privacy prevails, in others, the First Amendment. One of the cases was New York Times Company v. United States ( 1971) in which the New York Times published the Pentagon Papers but the Nixon administration argued that those should be kept private for national security concerns. In a 6-3 decision, the Court claimed that these were not to be considered private or secure and that the freedom of the press prevailed (NYT v. US, n.d.). Also in 1971, the Court ordered Branzburg to reveal his sources to a grand jury, despite the sources explicitly asking to not be revealed in Bransburg v. Hayes. Had secrecy been maintained, the press would have more rights than individuals during the grand jury (Branzburg v. Hayes, n.d.). Additionally, other cases such as Cox Broadcasting Corporation v. Cohn ( 1975) and Florida Star v. BJF ( 1989) held that freedom of the press overtakes privacy rights when the information is lawfully and publicly available. Cohen v. Cowles Media Company ( 1991) granted privacy to press informants if they had been promised confidentiality with promissory estoppel because the principle applies generally not just to the press (Cohen v. Cowles Media Company, n.d.). The contrast of Branzburg and Cohen shows how interpretive and circumstantial privacy rights are, while NYT v. NASA ( 1991) reveals that privacy rights are dependent on the media used to publish the information. In this instance, the US District Court for the District of Columbia allowed for transcripts of the Challenger astronauts’ last words to be published by the Times, but not the voice recordings (Mills, 2008, 36). Privacy rights also conflict with the right to information. The government recognized this right with the Freedom of Information Act in 1966 (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. The goal of having public records is to keep the government accountable, but this risks people’s privacy based on the nature of the information agencies collect (Mills, 2008, 50). However, nine exemptions and three exclusions in FOIA limit access to these records. The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA. The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d). Luckily, the exceptions and exemptions and the Privacy Act of 1974 considered the right of privacy and aimed to prevent the collision of these rights (Mills, 2008, 51). Privacy is also put aside when considering public security and health (Mills, 2008, 227). In the United States, this lack of priority became clear with the 1978 Foreign Intelligence Surveillance Act (FISA) and PATRIOT Act of 2001, which both expanded the ability of the FBI to have access to information on individuals that may or may not be a threat to the nation’s security. Many courts have upheld acts that place public security over personal privacy rights. To use an example less severe than terrorism, such is the case with the release of sex offenders (Mills, 2008, 224). While it hurts one’s reputation to have their name released in connection with this crime, it protects the greater community and their neighbors by alerting them. References: Branzburg v. Hayes. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1971/70-85 Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html Cohen v. Cowles Media Company. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1990/90-634 Cox Broadcasting Corporation v. Cohn. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1974/73-938 Florida Star v. B. J. F. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1988/87-329 Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx Mills, J.L. (2008). Privacy: The lost right. Oxford University Press. New York Times Company v. United States. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1970/1873 U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C