We are all familiar with the division of liberties and rights into "negative" and "positive." A negative right is the kind of right that doesn't require anyone to provide you with anything; it just forbids them from interfering with you. A positive right requires some actual provision. In Georgia as in several other states, for example, there is a positive right in the state constitution to hunt and to fish. This means that the state is obligated to provide the means for such hunting and fishing. It cannot be the case that you have a positive right to hunt, but that there is no land available on which you may exercise this right. If you have a positive right to fish, you must have access to at least some waters in which fishing is possible.
These rights aren't unfettered -- there are licensing requirements, fees, bag limits, and so forth -- but they do require that the state provide something for you. Your right imposes an obligation on the state not merely to refrain, but to act on your behalf to secure the thing to which you have a right.
All that is well understood. However, what is less well understood is that there is a middle ground between the two categories. There are some otherwise-negative rights that require physical goods. No one is obligated to provide you with these goods, but your right to provide yourself with them is protected. Thus, the Second Amendment says that the right to keep and bear arms shall not be infringed. Nobody needs to provide you with arms, but you must not be stopped from purchasing your own if you desire.
But it's a little stronger than that. There is an almost-positive element to it: we are obligated not to try to make the arms unavailable. It won't do to set up a case in which anyone who wishes to buy a firearm can buy one, but there are none to buy. It won't do for a governor to say, "I'm not infringing your right; go buy a gun, any gun you can find!" if that governor has previously arranged to buy up all the guns and melt them down.
In such a case the negative right has ceased to exist even though it is allegedly still extant and uninfringed by any letter of law. There isn't a positive right as such, but there almost is: the government may not be legally obligated to provide the good, or even access to the good. Yet if it isn't obligated not to prevent the possibility of access to the good, the right can cease to exist as an actual right that you can really exercise.
A similar case occurs with these "Free Speech zones," whereby the government orders you not to engage in assembly or speech near a political convention (say), except in a narrow area too small for all the competing groups (and usually far from the actual event). You have a negative right that is technically not being infringed; and technically, there is even a place provided for its exercise. But practically, the right is denied if there is not a place in which to practice it.
So yesterday I wrote up a piece about Commerce, Georgia, and the public pool that does not permit cursing. Is that an unacceptable infringement of freedom of speech, for the government officials who run the pool to refuse to allow you to speak certain words in a public park? Perhaps not, if you think that the existence of the rest of the world is an adequate amount of space for cursing in; in that case, you could say that this is better, because we have one place for people who don't like to hear foul language (and do like to swim), and people who like to curse can go do it elsewhere when they are done swimming; or they can simply forgo swimming, and curse all day if it pleases them.
How far can we take that principle? Can we ban cursing on all public property? Within the city limits, whether the land is public or private? Within the county? Within a state? Within the United States? At some point we're crossing that line pertaining to the mostly-negative right that has a necessary physical component. Just where?
19 comments:
What is the purpose of the cursing (for instance)? If we take the Constitution as a model of rights (and stipulate for this discussion that the 14th Amendment extends these rights to all lesser jurisdictions), political speech may not be infringed: Congress shall make no law...abridging the freedom of speech.... There are no caveats of any sort in this clause. But what is being protected here is political speech, not private speech.
Thus, if the cursing is being done to make a political point, it seems to me that it cannot be banned at all in a public place, including a public swimming pool. We still have social pressure, such as it is today, with which to curtail such language, but the government cannot enjoin against it.
There's a related case at Indiana University Southeast, where student free speech exercises can only be carried out in a particular location of IUS' choosing (the students can appeal, but it is IUS that will adjudicate the appeal of the IUS decision), and flyers expressing opinions can only be posted at a location of IUS' choice.
With regard to this, Associate Professor (of Political Science and Dean of the School of Social Sciences at IUS) Joseph Wert actually says with a straight face: Governments have the right to restrict the time and place of these things.... If they were regulating content--I'd have a problem with that[.]
He completely misses the simple fact that if the government (or the IUS) restricts the location and time of political speech, it is perforce restricting its content by dictating, however innocently, where that content may be expressed.
If the speech is for political purpose, I can't see any place for a government restricting it in any way. Government has to trust its superiors--we have to be able to trust ourselves--to exercise proper judgment concerning any response to political speech. We can't wish this sort of obligation, which is the dual of a right, onto any other entity.
Eric Hines
Even if you were cursing just to defy the ban on cursing, that would still be a political act: it would be an attempt to demonstrate, by force of action, that you were unprepared to accept the limits imposed by the government. That you were doing so in accord with your rights is quite clear from the 1st Amendment language you cite.
But what is lost by taking that position? The individuals who make up this community have a right to pursue happiness. That is to say, they have a right to try to achieve the good life, as they define it. An important part of that life might be living in a community with old-fashioned values, and a public space that is comfortable for families with young children, or older individuals who find cursing objectionable in itself.
If the pursuit of happiness is a right, it seems as if we must say that it is also right that there must be the possibility of a place for it. It's not a positive right: we don't have to provide a place. But I wonder if there isn't an obligation to allow them to construct such a place on their own.
Otherwise we end up saying that you can't have a community like Commerce. The television culture must be allowed to spill out into the public pool; teenagers must be allowed to carry on around families with young children as if they were the cast of some reality show.
This ends up conceding the whole public space to bullies. The family who finds it objectionable for their children to be exposed to cursing and gangsta-behavior at the public pool must simply retreat to their private homes. The worst elements of society end up taking over.
Some people may be wealthy enough to join a private community with a pool, but what about the ones who are not? It is (after all) the poorest communities who suffer most from the gangster ethic; the grandmothers and mothers in those communities may be the ones most in need of a place to raise their kids without exposure to that culture. They may be the ones most in need of a community that supports their efforts by underlining that such behavior is not acceptable.
I can't see any flaw in your logic regarding the 1st Amendment, but the consequences lead me to wonder if there isn't an opposing right that is somehow being forgotten. It seems like it might be a case of falling between the cracks of the positive and the negative. Nobody is required to provide you with a place for a community that shares your standards; but neither ought the government to make it impossible for their to be a place for a community with standards.
This isn't necessarily a place for government action.
Nearby, the community in the pool don't have to tolerate the private speech of cursing, or the political speech of cursing, for instance, in defiance of the ban on it. Those people can escort the miscreant from the premises, in an armlock, if needs be. "Officer, no one saw anything."
The cursor's free speech rights end where they infringe on mine--including my free speech right not to have to hear it. Under our Constitution, and the cases flowing from it, political speech in a public venue is allowed to trump my right not to hear it, and I fundamentally agree with that. But again, he can be escorted from the premises--not physically, perhaps, but by turning his tactic on him: heckling, shouting down, and so on by us as private citizens. It's even possible to out curse him, without uttering a single curse word. Governor Chris Christie--and Congressman (Speaker? I'm not conversant with the protocol) Newt Gingrich--have proven effective at this by ridiculing their hecklers in front of the crowds at which the political speech has occurred. Of course, they also were aided by the engagement of the audience, who also were put off by the protestors' protests.
The public space especially need not be conceded to bullies; these are, at heart, cowards and faced down--with difficulty at first, but with increasing ease with each success.
With regard to cursing at the pool, we might even help the individual build his own pool, where his rules of behavior could apply--we have no need to frequent "his" public space.
Those are, as I said, nearby solutions. Long term, it's necessary to get back to teaching morality, standards of comportment, the necessity of actual political engagement, and as a practical matter, the techniques of effective communication. Political speech is not harmed by that, nor is the freedom to engage in it. Indeed, this would enhance that freedom by making it more effective--we'd actually listen to each other.
The denizens of your blog and of another which many of us frequent, also, often dispute with considerable enthusiasm, but with considerable civility, too. We're all of a piece in our educations, though, which demonstrates the point.
I think that's all that's missing, or the major part of it, anyway: we need to speak for ourselves more often, and rely less on an authority figure to speak for us.
Eric Hines
This isn't necessarily a place for government action.... [P]eople can escort the miscreant from the premises, in an armlock, if needs be. "Officer, no one saw anything."
So you're saying that maybe human liberty requires a certain number of outlaws who will do what the police can't, the courts won't, and the law forbids?
This is an idea that makes me feel like Jules in Pulp Fiction:
"[I]t could mean you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. And I'd like that."
I would; but it sounds like an argument that more justifies my prejudices than one that establishes clear principles for protecting the rights of the people. :)
Not outlaws, so much, except perhaps in the literal sense of that term, but sheepdogs who can act on their own initiative. I would say in most cases, what the courts can't, also, rather than won't; especially if the judges are doing what I think they should be doing: if they find the law constitutional, then applying it as it was written, and not according to some personal "interpretation" of what the says, or should say.
And if the law forbids--or mandates--inappropriately, the onus is on us to correct that deficiency. The law, in a free society, after all originates in us--our representatives who formally enacted the law are only our mouthpieces.
We hire governments to help us (ideally, rather than to take on the entire task itself) protect our (natural) rights. We forget, though, that there's a duality to those rights--the obligations inherent in them.
It's a lot easier for that hired government to help us protect those rights than it is for that same government (or a dual government?) to enjoin us to honor the obligations of our rights. In the end, both our rights and our obligations are individual--they are not collective. Thus, the primary actor in both of these is ourselves. When we hire government to "help" us with our obligations, too, we get the sewage that is our current suite of government welfare programs.
It's certainly true that some of us can protect our rights and honor our obligations with greater facility than others, but our obligations extend here, too. We already have a duty to help the least of us; this duty extends to rights and obligations--and we as individuals, or acting in concert at the local community level, can do a far better job--especially with the obligation side--than can any government.
Eric Hines
..."sheepdogs who can act on their own initiative."
Yup, but sheepdogs can be hauled off to the pound too. Particularly when the situation escalates to a full fledged dog-fight and it can be alleged that the sheepdog initiated the dog-fight.
It's always a good idea to be situationally aware and aware of the surroundings [witnesses], not to mention being strategic. Old age and treachery, more often than not, carries the day. Don't ask me how I know...
Now, all seriousness aside... At the barn this very afternoon I had to get ugly with a chick over her fowl language.
...sheepdogs can be hauled off to the pound too.
Occasionally with justification. However, more important is the distance we've allowed to grow between ourselves and our government agents--especially our cops. They're caught in the middle, too. Our governments, in their own fear of chaos (which is how they seem to view anything that doesn't follow a strict set of rules), require our police to enforce with zero tolerance--none of the judgment that we've talked about in other threads. And so we view our cops with suspicion and hold them at arm's length.
All to the detriment of good order, which has a critical component: a measure of disorder.
Eric Hines
Chicken just wanted to be fed....
Eric Hines
Free Speech is about the expression of ideas. Although you may prefer to use profanity in your expression, you capable of expressing yourself without actually using foul language and still get the full meaning of your message across. In much the same way that you might prefer to swim sans bathing suit - if you are intent upon using the public pool, where suits are mandated, you will simply have to bow to public decorum and don your speedo.
I dislike having the government involved in what is really a civil issue. Cursing puts no one at risk of physical harm (except perhaps the curser at the hands of the folks around him), and deprives no one of life, liberty or property.
BUT, I am sympathetic with the idea that the community has a right to not be prisoner to those who just want to cuss up a storm. And that's where private ownership offers advantages the government cannot provide. Namely, you can throw the bums out, and if they refuse to leave, THEN it's a trespassing issue that the government CAN be involved in. My solution is this. The government should turn the pool over to a private holding group that is run by the community as a whole. Thus, they can throw the offenders out and there is no 1st Amendment conflict. But I am generally ill disposed to the "there oughta be a law" concept. Legislating clean mouths is one step away from banning "hate speech", you know, like folks who espouse smaller government practice.
I must say that I very much dislike the terms "positive right" and "negative right" and would like to see conservatives not use them. "Negative", after all, has a negative connotation. And "positive" has a positive connotation. So the right to free speech, the right to keep and bear arms - in short, all the rights we are guaranteed in the Constitution are "negative". But the things made up the the left and that are nowhere in the Constitution are "positive".
I prefer the terms "rights" and "privileges". "Rights" are those things which the government is obliged to preserve so that you can within the constraints of your own resources freely exercise them. They are granted by God and cannot be taken away. "Privilieges" are those things which the government by legislation has decided to give to people under varying conditions and that it takes other people's resources to provide if you do not have your own resources to obtain them. These are given at the whim of the government - and can be taken away just as readily.
I agree with and like the privatization notion Mike, and when all else fails, a nice quiet discussion between the offender(s) and those who would rather keep the tone down on the pros/cons of making a obscene scene in front of the womin folk and chilluns.
"I prefer the terms "rights" and "privileges". "Rights" are those things which the government is obliged to preserve so that you can within the constraints of your own resources freely exercise them. They are granted by God and cannot be taken away. "Privilieges" are those things which the government by legislation has decided to give to people under varying conditions and that it takes other people's resources to provide if you do not have your own resources to obtain them. These are given at the whim of the government - and can be taken away just as readily."
Nice and concise Ron... All I would add is that I try to preface the word rights with natural, just to belabor the obvious WRT who's who in the pecking order.
So, if we adopted that privatization concept, how would it work? The community would be formed as a corporation, with the shareholders being who precisely? Everyone who lived in the city limits? Can the bylaws require you to give up your stake if you move out, and can they require the shares to be redistributed every time someone else moves in?
Or do you pick a representative or two that you trust to uphold the standards of the town, and maybe write into the bylaws that they are to be replaced by election, with anyone living in town eligible to vote?
It sounds to some degree like an elegant (or at least, elaborate) workaround to re-establishing what we used to call "city government." That's a significant vote of no confidence in the actual government of the United States: what you're looking for here is a way of practically seceding, by stripping the constituted local government of authority and land, and giving it to a new "government" that is functionally a private corporation.
There's a problem with that approach, though, which is the flip side of the benefit you're after. A private corporation is not obligated to protect anyone's rights. If you reconstitute local civil government as private corporations, you're sacrificing a lot of legal protections.
I must say that I very much dislike the terms "positive right" and "negative right" and would like to see conservatives not use them. "Negative", after all, has a negative connotation. And "positive" has a positive connotation.
That may be, and I agree it would be nice if the connotations lined up with our own sense (i.e., that the negative rights are more valuable, and more properly rights). Nevertheless, it's a useful distinction: are you saying that the government has no right to interfere (e.g., keeping and bearing arms), or that they must provide something (e.g., land to hunt upon)?
But as I'm trying to argue here, there is something like a "positive" component even to "negative" rights. The government may not be obligated to provide anything, but I think they must be obligated not to prevent the possibility of actualizing the right. That imposes a lot of restrictions on the government, which is good, without moving so fully into the private space that we no longer have the benefit of civil rights protections, which is also good.
"So, if we adopted that privatization concept, how would it work? The community would be formed as a corporation, with the shareholders being who precisely? "
I was thinking more along the lines of the pool in our example, not an entire community, i.e. the forming of a Squeaky Clean Swimming LLC, as it were.
I will admit that privatization secession does have a sharp, crisp ring to it!
If anyone cares to try to broaden the scope of privatization, to the community level, I would be very interested to hear how.
First point would be to 'splain how anyone supposes one might get the State to agree to allowing a community to form a corporation, as opposed to forming a city.
As a benchmark, the incorporation of the city of Milton a few years ago in North Fulton county, took what seemed like a half century of persistent citizen pressure on the county council and in the courts. That affluent area -- they have lots of trees in that area-- was a revenue cash cow constantly milked into the county coffers with little ROI.
Nup, I can't quite image a privatization secession of a community, or larger, happening without bloodletting. And as you point out Grim, the administrivia of assigning/naming officers, managers, and members, along with their power/pecking order in such a corporation would, I suspect, be a twilight zone meets shootout at the OK corral kind of experience.
Apologies for the extended ramblin'.
I think I meant to include Sandy Springs as an example of incorporation and outsourcing traditional city services, but I ran outta steam...
Actually WB is telling me to get busy on the list/.
I don't see how regulating profanity is really any different than making a law that says you have to be 18 to buy a Playboy magazine. Yes, free speech allows such publications and their distribution, but how and to whom they are sold is allowed to be regulated, as not doing so impacts the rights of others in the 'pursuit of happiness'.
So, if we adopted that privatization concept, how would it work? The community would be formed as a corporation, with the shareholders being who precisely? Everyone who lived in the city limits? Can the bylaws require you to give up your stake if you move out, and can they require the shares to be redistributed every time someone else moves in?
I would say you structure it like any *shudder* HOA. It's imperfect, but at least we know it works. And yes, they need not be concerned with civil liberties... but wasn't that the point of the matter? We wanted to allow the community to enforce standards that the state cannot?
I don't see how regulating profanity is really any different than making a law that says you have to be 18 to buy a Playboy magazine. Yes, free speech allows such publications and their distribution, but how and to whom they are sold is allowed to be regulated, as not doing so impacts the rights of others in the 'pursuit of happiness'.
As a sub-adult, I believe children have limited rights under the Constitution. They do not, for example, have the right to bear firearms, or vote, or be secure in their property, or free speech. Those rights belong to their custodial guardians or parents who may or may not allow them to exercise those rights (save voting). However, children DO have greater rights in other areas (again, in my mind). They have the right to be free from abuse, they have a right to shelter, and education, and food... all rights adults do not possess. Mind you, that's just my opinion.
The problem with legislating profanity is specifically what the First Amendment's intent is. To protect unpopular speech. Popular speech needs no such protection, and the government OUGHT to be loathe to attempt to define what is "dangerous" speech and what isn't. Again, how far is it from saying "you can't use curse words in public" to "you can't use hate speech in public," especially when "hate speech" is being defined as "support for smaller government", "calling for Second Amendment rights", and other conservative ideals? "But that's POLITICAL." Once again, you start down that path and let the government regulate what words you can and cannot say (would the epithet "frak" become forbidden?), you conceed the power to control language. I for one, will do without NewSpeak.
Nevertheless, it's a useful distinction: are you saying that the government has no right to interfere (e.g., keeping and bearing arms), or that they must provide something (e.g., land to hunt upon)?
I agree that the distinction is useful.
But as I'm trying to argue here, there is something like a "positive" component even to "negative" rights
But others argue the contrary - and they have set the standard with their language. It's hard to argue that something we agree to associate with the word "negative" is positive. So I would not play their game - I would simply continue to use the time-honored terms of "rights" and "privileges" and refuse to permit someone else to characterize what I see as positive as "negative".
Why do you think the left has come up with the terms "negative" and "positive" rights in the first place? So that they can deprecate things like freedom of speech (by inventing "hate speech" and passing laws against it) or the right to keep and bear arms, and disassociate the obligation that one has to give your best effort to support oneself out of one's own resources away from your ability to ask the State to take resources from other people and give them to you (which were once called "entitlements" and are now "positive rights"). Note how the President has overridden Congress by stopping the Feds from determining if you are looking for a job or education, etc., before you are eligible for assistance - he wants to make it a "positive right" rather than something you have to do something to get.
They're trying to redefine the term so as to redefine the nature of what they refer to. I resist.
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