philosophy, what are human rights

What Are Human Rights? (54): The Scope and Coverage of Rights, As Exemplified by Free Speech

free speech

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It’s important to know what exactly is covered by a certain human right, otherwise we can’t be sure that we have a right to do what we do and we can’t properly protect others against violations of their rights. Maybe we think that a right protects a certain thing that we do but in reality this thing is outside the scope of the right. Or maybe we want to protect other people engaging in an activity but none of their rights covers this activity.

So you see the importance of the question of coverage or scope. Having a right means knowing how far this right goes. Answering this question requires an answer to at least three further questions:

  1. Who’s protected by a right? And whose activities are restricted by it?
  2. What types of actions are protected by a right, and to what extent? Where is the line between protected actions and legitimate restrictions on actions?
  3. Which obligations does a right impose on whom?

Let’s try to answer these questions by way of the example of the right to free speech.

1. Who’s protected by the right to free speech? And whose activities are restricted by it?

1.1. Who’s protected?

See no evil, hear no evil, speak no evilBoth speakers and audiences are protected. A cursory look at the language – “a right to free speech” – would lead us to assume that only speakers are protected, but that’s wrong: the right to free speech includes the right of audiences to receive the free speech of others. The interests of both speakers and audiences are protected by the right to free speech. This is evident when one takes a closer look at the exact formulation of this right in legal texts.

One reason for this is a purely logical one: speech without an audience doesn’t make sense. Another, more substantive reason why the right to free speech also protects the interests of audiences has to do with the role this right plays in the search for truth. In a nutshell: audiences are necessary for the refinement of arguments. Read the post I just linked to for the full story.

Other groups that can legitimately claim protection of their speech are

  • foreigners: there’s no good reason to assume that foreigners residing within a country’s jurisdiction should not enjoy the same speech rights as citizens (the same isn’t necessarily the case for all human rights)
  • future generations: current generations shouldn’t act in ways that restrict the freedom of speech of future generations
  • companies, etc.

1.2. Whose activities are restricted?

Laurel and HardyA list of protected actors only tells us a tiny bit about how far a right goes. Defining the agents or institutions whose actions are bound by the right is equally important. Traditionally, it’s assumed that the right to free speech - like all other rights – limits the power of governments. Of course it does, but it also does a lot more. If it would only restrict a government’s power to prohibit and sanction forms of speech, then the scope of the right to free speech would be rather limited because private persons would be at liberty to restrict it as they see fit. Theoretically, although not always legally, the right also restricts private individuals, companies, churches etc. None of those agents or institutions has a right to prohibit people from exercising their right to free speech.

2. What types of actions are protected by the right to free speech, and to what extent? And which are legitimate restrictions on actions?

The scope of a right depends on decisions about who is allowed to claim it and about who is bound by this claim, but it also depends on the types of actions it protects or fails to protect. In our example, we have to define “speech”. On the one hand, it can’t just be the spoken or written word since we express ourselves in ways that don’t involve speaking or writing. Audiences also want to receive information in forms different from ordinary language. For example art, data and speech acts such as flag burning should also be covered by the right to free speech.

On the other hand, not all forms of expression or information gathering should be covered, because then everything would be covered and legislation would be impossible: every act including murder can be conceived as an expressive act, and people can find information anywhere. Not all expressive acts or information gathering can or should be legally protected. Hence, one has to draw a line somewhere.

hitler doin' some hate speeching

Hitler doin’ some hate speeching

The exact location of the line, and hence the exact scope of the right to free speech, varies from case to case and depends on the impact of language and speech acts on other rights and the rights of others. For example, if hate speech violates other people’s rights (such as their freedom of residence or movement), then this form of speech falls outside the scope of freedom of speech. Mere derogatory speech on the other hand may not result in rights violations and then falls within the scope. Speech acts such as cross burning may also, depending on their impact on the rights of others, fall either within or outside the scope (cross burning during a private party is different from burning a cross in the front lawn of a lone black family living in a racist neighborhood).

Another way of putting this is that the scope of one right is determined by the scope of other rights, or that the scope of the rights of some is determined by the scope of the rights of others. Both scopes need to balanced against each other. This balancing is usually the business of judges and there’s no way to fix the outcome by way of strict rules. It all depends on a personal judgment by a judge about the harm done by including an action in the scope of a right compared to the harm done by excluding it. Hence, the scope of a right can never be completely fixed. We can never tell exactly how far a right goes.

The same logic holds for so-called place and space restrictions and fairness restrictions. A right to free speech doesn’t imply a right to free speech in any chosen space or place: not everyone as a right to publish in the New York Times or to speak in Congress; and you can’t insist that you have a right to speak in someone else’s house or private property, unless proper balancing has resulted in a judgment that in a specific case the right to private property should give way. (The latter may be the case when private restaurant and shop owners band together to discriminate black customers and when those customers stage protests). Place and space restrictions can be justified either by the necessity to respect the scope of other rights (property for instance) or by the fact that sufficient alternative speaking channels are available (the NYT isn’t the only newspaper).

Examples of fairness restrictions are the prohibition of the heckler’s veto and the fairness doctrine. In both examples, the right to free speech of some is restricted in order to guarantee the right to free speech of others (proper balancing is again required; methods of balancing are discussed here).

Obviously, the actual as opposed to the theoretical scope of the right to free speech isn’t just determined by legitimate restrictions. In real life, as opposed to ideal theory, governments and (groups of) individuals impose illegitimate restrictions. And other, more creeping restrictions such as chilling effects, psychological biases, self-censorship and political correctness, exist as well.

3. Which obligations are imposed on whom?

A final way of measuring the scope of the right to free speech is by having a look at the nature of the obligations it creates. More wide ranging obligations make for a wider scope, and limited obligations for a limited scope. And here as well we find a common misunderstanding. (A first misunderstanding was that the right only protects speakers; another was that it only limits the power of governments). It’s not true that the right to free speech only imposes a negative duty not to restrict speech. This negative duty is important but it’s also meaningless when it’s not accompanied by more positive duties. For example, a person’s speech may not be restricted by anyone and yet her lack of education, leisure time or other resources make it impossible for her to engage in meaningful speech. Hence, the government and others have certain duties to provide resources: education, internet access etc. And let’s not forget that a negative duty to refrain from speech restrictions requires a positive duty to provide mechanisms such as courts, a police force and other means to undo or prevent speech restrictions.

Similar arguments can be made for most other rights.

PS: here are some useful links that I’ve recovered from a previous post and that are relevant to the question at hand:

A related post on the dimensions of human rights is here. More on free speech here.

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activism, human rights video, photography and journalism

Human Rights Video (27): Black Child Fed Like a Dog in South African Charity Ad

Wow, this really takes the shock approach to charity advertising to a whole new level:

The video shows a young black boy being treated like a pet by a wealthy white person. For instance, the boy/dog brings the newspaper to his/its “owner” and gets a treat as a reward. The message is that dogs have a better life than young blacks in South Africa, and that racism is to blame. This may be true. There’s still a lot of poverty there and things are only slowly improving. However, the video comes across as unnecessarily offensive, at least to me. I understand that it’s sometimes necessary to shock people in order to get a message across, but it’s not as if we don’t know that blacks in SA are often poor and hungry or that there’s racism in that particular country. I mean, I challenge you to think about “racist country” and come up with another country first.

After the video itself, there’s someone offering a short justification that sounds very unconvincing. “What if this advert changes a child’s life? What if it changes 3.5 million lives?”  Well, I’ve got news for you: adverts don’t do that. If you want to make a difference, donate directly.

More about this particular video is here. More human rights videos are here.

UPDATE: message received apparently. The video has now been made “private”… This way it’s “impact guaranteed”. A few screenshots that haven’t been censored:

1404838192-South Africa

Shock-Advert-Shows-Black-Boy-Being-Treated-Like-a-Dog-550x368

Here’s an incomplete pirate version:

 

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activism, human rights promotion

Human Rights Promotion (23): Moral vs Emotional Persuasion

Doku Umarov showing some moral disapproval

Doku Umarov showing some moral disapproval

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Actions are motivated by beliefs, at least to some extent. (I’ll come back to this in a minute). It’s safe to say that many actions are driven mainly by beliefs, beliefs both about the nature of facts and about how we should act – factual and moral beliefs in other words. Unsurprisingly therefore, many actions that result in rights violations are also caused by beliefs. Certain beliefs are harmful to human rights because they result in actions that violate those rights. I’ll focus here not on harmful beliefs that are self-interested – I find those rather boring – but rather on harmful moral beliefs: rights are often violated because of the view that other people should be forced to do what the coercers believe is the “right thing”. (FGM is an example that comes to mind.)

Beliefs about how we should act are often based on beliefs about “facts” (for example the supposedly detrimental facts that result from failure to perform FGM, such as female promiscuity and bad hygiene). “Facts”, in turn, are seen through a thick interpretative layer of beliefs about morality, which is why I use the scare quotes. For example, if you oppose homosexuality for moral reasons (because “it’s wrong”), then you may tend to see homosexuality as “unnatural”, and this view is often proposed as factual. 

One way to undermine harmful moral beliefs is to attack their factual basis. We can point out the real facts (for example, that the Koran does not require FGM, or that women’s sexual morality and health do not require it). Of course, people who are for some reason intimately attached to certain beliefs will “find” other “facts” to support them. In some cases, however, challenging people’s factual beliefs can make them reject their harmful moral beliefs. At least that’s my belief.

We can also attack harmful moral beliefs directly and try to persuade people to change those beliefs irrespective of their factual basis. For example, we can stress inconsistencies or logical fallacies in ethical beliefs. We can say to racist Christians that the teachings of their God include statements about human equality and rules about neighborly love. And the naturalistic fallacy is abundant (“homosexuality is immoral because it is unnatural”; “we should not care about distant strangers because evolution has programmed us to take care of our own”, etc.). 

disgust

disgust

In short, there’s a whole lot we can say in order to undermine harmful moral beliefs and promote support and respect for human rights. Unfortunately, this will only work in some cases. Ask yourself how often you’ve modified your own moral beliefs. I myself can only come up with two examples: my views about criminal punishment and immigration. (To the extent that I’m quite ashamed of some of the older posts on this blog, to which I won’t link). When we do change our moral beliefs, it’s because we’ve become convinced that the facts on which we’ve based our moral beliefs aren’t what we thought they were (immigration isn’t harmful, capital punishment doesn’t deter, gay marriage doesn’t undermine traditional marriage etc.). When we change our moral beliefs, this is why we do it, not because we now see the moral truth of something (the truth of the rule that strangers have as many rights as we have, that criminal shouldn’t be treated as means to scare future criminals, that sexual orientation shouldn’t determine rights etc.).

So, the best means to change harmful moral beliefs is to attack the supposedly factual basis of those beliefs. However, as I’ve said, this won’t work every time or even a lot of the time, because we constantly try to marshal new facts as a basis of our moral beliefs when the old facts become discredited. If necessary we fabricate the facts. That we do this points towards a deeper problem. Maybe what really motivates us are primordial emotional reactions such as disgust, cleverly dressed up and rationalized by way of beliefs and “facts”.

There’s a great scene at the beginning of Inglourious Basterds about how we can’t justify our disgust of rats on the basis of facts that wouldn’t also justify disgust of pretty squirrels:

If indeed we’re not motivated by moral beliefs or facts, then no amount of moral reasoning or factual discussion can help us avoid rights violations resulting from post hoc rationalizations of our disgust. A more emotional kind of persuasion may be more promising. Telling people stories about the suffering of those who are seen as disgusting can conceivably remove their disgust and hence their need for harmful beliefs and biased selection or creation of “facts”. The chances of something like this succeeding have to be balanced against the “primordial” nature of a lot of our emotional reactions. “Primordial” in the sense of “very old” and “resulting from early human evolution”. That’s a steep climb. 

All this has implications for the legalistic approach to human rights promotion. To the extent that rights violations are actions that have a deep foundation in our emotions – and not all rights violations are like that – legislating them away won’t work. Other strategies have to be employed. 

There’s a good podcast about the same topic by the VeryBadWizards guys here. More about persuasion here and here. More posts in this series are here.

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ethics of human rights, philosophy

The Ethics of Human Rights (91): Moral Realism vs Moral Subjectivism

Good and Evil, by Fint art

Good and Evil, by Fint art

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Proponents of human rights are often cast as moral realists, and opponents as moral subjectivists. Let’s start with the latter. Opponents of universal human rights tend to be cultural relativists who believe that moral standards and values derive from – “are relative to” – different cultures. When those standards and values are incompatible with human rights, then human rights should give way. Giving priority to human rights would mean imposing the standards and values developed in and by one particular culture onto another. And that would be cultural imperialism and disrespect for human diversity.

My use of the word “developed” is intentional: it indicates that most relativists are also constructivists who argue that moral values are constructed and transmitted, rather than discovered. Not necessarily consciously constructed – more often unconsciously and without planning or intent. Relativists/constructivists argue that cultures refine throughout the ages what is best for them. It’s probably best to call this meta-ethical view a form of subjectivism in the sense that moral standards and values are

  1. rules of conduct specific to a particular subject – a culture in this case – rather than universal and objective, and
  2. subjective in the cognitive sense, meaning created by human subjects rather than a fact that can be discovered in the world.

I personally conform to the standard representation of a human rights proponent since I have my quarrels with cultural relativism as a form of moral subjectivism. I believe in universal rights that should override certain cultural norms. Human sacrifice for instance is wrong. Culturally sanctioned gender discrimination is wrong. And so on. However, this doesn’t mean that I have to reject moral subjectivism tout court and adopt moral realism. I don’t want to claim that statements such as “human sacrifice is wrong” are true in an objective sense, even though I have strong beliefs about such statements. Most moral realists do make that claim. Let’s have a closer look at moral realism and then try to loosen the link between moral realism and human rights theory.

The_Truth_is_Out_There_by_DoniouMoral realism is a cognitivist and objectivist theory about morality: some ethical propositions are objectively true, independent of subjective opinion, like some propositions about the world are objectively true. And we can know and discover these objective moral truths. The implication is that true ethical propositions are true independently of culture. “Honesty is good” and “slavery is bad” are moral facts according to moral realists. If some – or all – cultures were to reject these facts and adopt contrary moral values, then that wouldn’t change the true nature of those moral facts. Morality is “out there”, but individuals or cultures can decide to ignore it. A moral realist who is also a rights proponent will say that human rights are true and that opponents of rights are simply mistaken about what is objectively right (or lying about what is right).

I don’t have a very strong conviction about the relative merits of different meta-ethical theories (it’s a tough problem), but I do have my suspicions. I tend to believe that moral realism is wrong. Maybe it’s not, in which case it would be perfectly OK to be both a proponent of human rights and a moral realist. Moral realism certainly isn’t incompatible with human rights. I want to argue against the conventional wisdom that it is necessary to be a moral realist in order to believe strongly in human rights. It’s not. And it’s good that it’s not because it may turn out that moral relativism is wrong, as I suspect.

speech2I defend a position which we could call universalist intersubjectivism (and I’m terribly sorry for the ugly term; I’m sure it’s as catchy as everything else I write). Intersubjectivism means that morality is about opinions, but not about subjective opinions, unfounded opinions or opinions that evolve more or less unconsciously and automatically throughout the life of a culture or a nation. Moral opinions can be good or bad. They are good when they are tested in common deliberation and exchange of arguments between rational subjects – hence intersubjectivism. The goal is to come to some form of agreement – hence universalist intersubjectivism. Intersubjectivism is universal rather than relative, and it’s also a weak rather than a strong cognitivism: we can distinguish good from bad opinions because we have the test of the marketplace of ideas, but the good opinions will probably not ascend to the level of truths. Morality is not (only) the product of cultural development, traditions or evolutionary psychology, but also of reasoning and argumentation. Reasoning, however, that will - most likely - fall short of truth claims.

So I don’t believe in the realism of moral realism. There’s only intersubjective agreement about justified opinions, no objective moral truth. Moral claims such as human rights or the foundational values that require human rights for their realization (e.g. “peace is good”) are not objective moral truths or moral facts but justified opinions that have withstood the test of argumentation in the marketplace of ideas. For example, it doesn’t have to be true that individuals should be treated as moral agents with a right to think for themselves. All we need is that this view about individuals is reasonable, justified and able to survive deliberation and argumentation. It need not even be a very common view, since argumentation may not be close to what it can ideally be. The intersubjective agreement that we aim at is limited to what rational actors can decide to agree to in a setting that is favorable to argumentation. In many circumstances in real life, this setting is absent and actors are less than rational.

When that is the case, intersubjective agreement on the importance of human rights may be a minority point of view. I believe, however, that we can improve social argumentation and extend intersubjective agreement as long as we make the effort of designing and protecting the marketplace of ideas. And as long as we depart somewhat from the moral realist position. The moral realist who maintains that moral truths are “out there” waiting to be discovered, is unlikely to view argumentation as very important. Those, on the other hand, who claim that morality is about argued opinions that can withstand the test of controversy will be more favorable to fostering institutions for argumentation. Moral realists are also more likely to be dismissive of people with the “wrong” views, and dismissiveness has never convinced anyone.

More on the same topic here and here. More posts in this series are here.

(image source)
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