Permissibility

Have political theorists or philosophers discussed the permissibility of exceptions to this right?

Right	Breakout	Contents
Freedom of Association		Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era. John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669” ). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669” ). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly. Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states 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” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later. French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association. Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations. The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent "right of association," has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”). This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society. The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society. “John Locke, Two Treatises ( 1689) - Online Library of Liberty,” accessed June 19, 2020, https://oll.libertyfund.org/pages/john-locke-two-treatises- 1689. Locke, John, “A Letter Concerning Toleration,” trans. William Pope, 1689, accessed at https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/locke/toleration.pdf, 9. Eric R. Claeys, “The Private Society and the Liberal Public Good in John Locke's Thought,” SSRN Electronic Journal, 2007, https://doi.org/10. 2139/ ssrn.1027965. “Constitution of the United States of America,” Bill of Rights Institute, October 3, 2019, https://billofrightsinstitute.org/founding-documents/constitution/?utm_source=GOOGLE. 5 “Right to Peaceful Assembly” (Law Library of Congress, 2014) , https://www.loc.gov/law/help/peaceful-assembly/right-to-peaceful-assembly.pdf. John Stuart Mill, “Mill, ‘On Liberty,’” in The Routledge Philosophy Guidebook to Mill: On Liberty, ed. Jonathan Reiley (New York, NY: Routledge, 1998) , 45. Thomas I. Emerson, “Freedom of Association and Freedom of Expression,” The Yale Law Journal 74, no. 1 ( 1964) : p. 1, https://doi.org/10. 2307/ 794804
Freedom of Expression		Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the "harm principle." This, Mill claims, is the only context in which power can be "rightfully" executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an "offense principle" is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a "negative mental state" (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238). References: Mill, JS On Liberty Simpson, Robert Mark. “Regulating Offense, Nurturing Offense.” Politics, philosophy & economics 17, no. 3 (2018): 235–256.
Freedom of Religion		The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Keen and Goldberg, 236-237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights", they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted. REFERENCES: Keen, Lisa., and Suzanne B. Goldberg. Strangers to the Law : Gay People on Trial. University of Michigan Press, 1998. Lupu, Ira C. “Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion.” University of Pennsylvania law review 140, no. 2 (1991): 555–612. Marshall, William P. “In Defense of Smith and Free Exercise Revisionism.” The University of Chicago Law Review 58, no. 1 (1991): 308–28. https://doi.org/10.2307/1599906.
Privacy Rights		Hobbes Thomas Hobbes grappled with varying different situations of privacy. In Leviathan, it was mostly concerning places in which privacy and the public overlap. Generally, the public and commonwealth rights overtake those of an individual, especially in times of war, but there are some exceptions (Hobbes, 1651/ 1965, 130). For instance, one had the right to protect themselves with their private strength without being a threat to the commonwealth (Hobbes, 1651/ 1965, 138). Additionally, men could own private property and goods without interference from the Church of England and hold their own beliefs, as long as they didn’t go against the Church (Hobbes, 1651/ 1965, 250, 345). In De Cive (On the Citizen), Hobbes presents an interesting dilemma – once the people form a state, the people no longer exist and instead become subjects (Hobbes, 1642/ 1651, 39-40). He suggests this leaves the ruler of the state with no responsibility to the subjects, able to harm them as there is no direct contract between the ruler and subjects (Hobbes, 1642/ 1651, 40). Without obligation, there is certainly little to prevent the ruler from imposing on subjects and revoking their privacy. Locke In 1689, John Locke discussed privacy in his Letters on Toleration. In this essay, Locke discusses privacy in relation to the Church of England. Generally, there is no privacy from the Magistrate in matters relating to the Church, however, in some instances, privacy is afforded to private matters (Locke, 1689/ 2010, 43, 46). For instance, Locke claims that one may take care of one’s health without much interference at all and prevents people from telling others what to believe in unless they are a clergyman (Locke, 1689/ 2010, 46. 129). Additionally, if one perceives an order by a magistrate to be unlawful, they can abstain from that law, and the magistrate cannot use their private judgment to impose laws but must refer back to God’s laws (Locke, 1689/ 2010, 58-59). Kant Immanuel Kant talks a lot about Enlightenment and the formation of states. Inherently, in the creation of these states, some rights are taken away to “[harmonize] with the freedom on everyone else” (Kant, 1970, 47, 55, 73). However, these rights that are given up usually have specific limitations (Kant, 1970, 45). The government in these societies could prevent some actions but, much like Warren & Brandeis later, felt that free-thinking and reasoning were of utmost importance in developing new ideas, and suggested they be protected (Kant, 1970, 59). However, Kant also suggests limiting the right to reason because it can still “expand to its fullest” while it is limited (Kant, 1970, 59). In Warren & Brandeis’s terms of “the right to be let alone,” Kant, in his Theory and Practice, instead proposes the right to coercion, meaning all who are a part of the state are held to the same standard (Warren & Brandeis, 1890, 193; Kant, 1970, 75). This coercion is imposed uniformly on all subjects, but not the ruler (Kant, 1970, 75). As long as one was conforming to the laws, there was no reason to interrupt their actions, but once conformity was broken, there was a chance to impose and alter someone’s actions (Kant, 1970, 80). Kant recognizes that Hobbes feels differently, writing directly against Hobbes’ views as put forth in De Cive, in that the ruler has no obligations to the people and may treat them how he wishes – implying no right to be let alone (Kant, 1970, 84; Hobbes, 1651, 40). Sieyes In his essay titled Views of the Executive Means Available to the Representatives of France in 1789, Emmanuel Sieyes claims rights are inherent to a person. However, in What is the Third Estate, Sieyes claims that states may use the rights it was granted by the constitution and positive law to preserve the nation and community (Sieyes, 1788/ 2003, 136). In terms of privacy, these statements seem to imply that privacy may sometimes be taken away from some in the interests of the public. It is important to note, though, that these impositions may not go beyond the scope of the constitution in place (Sieyes, 1788/ 2003, 137). Mill John Stuart Mill, an English thinker, recognizes that English laws tended to interfere with privacy (Mill, 1859/ 2011, 15). However, Mill felt that separating church and state (“spiritual and temporal authority”) prevented more interferences of law within private life, somewhat facilitating what Warren & Brandeis would later call “the right to be let alone” (Mill, 1859/ 2011, 24; Warren & Brandeis, 1890, 193). References: Hobbes, T. ( 1651) . De cive (T. Hobbes, Trans.). UK Public Library. (Original work published 1642) . http://www.public-library.uk/ebooks/27/57.pdf Hobbes, T. ( 1965) . Leviathan. Liberty Fund. (Original work published 1651) . http://files.libertyfund.org/files/869/0161_Bk.pdf Kant, I. ( 1970) . Kant: Political writings (R.S. Reiss, Ed., 2003 ed.). Cambridge University Press. Locke, J. ( 2010) . A letter concerning toleration and other writings (M. Goldie, Ed.). Liberty Fund. (Original work published 1689) . http://files.libertyfund.org/files/ 2375/ Locke_ 1560_ EBk_v6.0.pdf Mill, J.S. ( 2011) . On liberty. Project Gutenberg. (Original work published in 1859) . https://www.gutenberg.org/files/34901/34901-h/34901-h.htm#Page_1 Sieyes, E. ( 2003) . Political writings (M. Sonenscher, Ed.). Hackett Publishing Company. (Original work published in 1788) . 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%281890 1215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C