Most of our public arguments are over rights, often competing rights. As Americans, we pride ourselves on advancing the concept of “unalienable rights,” inspiring other such efforts around the world. Our Constitution boasts the Bill of Rights, which protects such things as the right to practice your faith openly, to advocate publicly for your beliefs, to bear arms in self-defense, and much more.
|Deacon Kyle Eller
Still, over the course of my life, rights discussions seem to have fallen into chaos and confusion. Because caring about rights is so essential to our tradition, getting your preferred policy declared “a right” — by the U.S. Supreme Court if at all possible — is a powerful rhetorical victory. It puts your opponents in the position of fighting against “a right,” which is practically un-American.
Thus we have this growing list of absurd and bizarre things that have been declared “constitutional rights” even though they are not rooted in the text of that document at all, and often are advanced at the expense of rights that are explicitly protected by it, such as religious liberty and freedom of speech.
Our confusion is not just here in America. Catholic News Agency reports that the European Court of Human Rights ruled unanimously last month in favor of a woman who went, topless and covered in pro-abortion slogans, into a Paris church, disrupting a group practicing Christmas carols, to climb up on the altar, simulate an abortion of Jesus (using an animal liver), and then urinate in front of the faithful.
She should not have been convicted, the court ruled, because she was simply exercising her right to “freedom of expression” to “contribute to the public debate on women’s rights.” Meanwhile, in the United Kingdom, Rishi Sunak, their new prime minister, recently promised to ease up on police literally arresting citizens for what they post on Twitter, such as a veteran who was arrested earlier this year for a post critical of authoritarian tendencies in the LGBT movement.
Speaking of Twitter, there are, of course, many issues of the right to freedom of speech involving social media, some of which involve governments (including the U.S. federal government) and some of which don’t. Twitter itself was recently purchased by Elon Musk, who has promised to ease Twitter’s own censorship to make the site more open to a variety of viewpoints, and this has unleashed a torrent of controversy, as if the fate of the world is threatened by a website failing to, for instance, ban people who write in ways that contradict gender ideology.
How are we to make sense of all these competing rights claims?
I find a concept from Catholic social doctrine particularly helpful in seeking clarity: Rights are intrinsically connected to duties. This relates to the Catholic understanding of freedom itself, which is not just doing whatever I please but having the freedom to do the good, to do what I ought to do.
Why do I have a right to religious liberty? Because I have a duty to seek God and to serve him. Why do I have a right to vote and participate politically in society? Because I have a duty to contribute to the common good. Why do I have a right to educate my children in a manner consistent with my values? Because I have a God-given duty to my children to raise them, care for them, and teach them. Why do I have rights of conscience? Because I have a duty to follow my conscience, to do good and avoid evil.
If we want to authentically understand what rights are, the essential starting point is the duties we have as human persons. Those duties give shape and structure and context and content to our rights. The more deeply connected to our duties some right is, the more fundamental and important it is. The reverse is also true.
So what of freedom of expression, then? What duties give shape and purpose to our right to freedom of speech? One of them (I think there are others) is obvious: to speak the truth. We have a right to express ourselves because we have a duty to bear witness to the truth.
Of course, as fallen human beings, we have many disagreements, sometimes profound ones, about what the truth is. In humility, and out of respect for the dignity of the human person, it follows that we should have a pretty high tolerance for the speech of viewpoints we find wrong or even offensive.
But we also distinguish between the idea and the means of expressing it, some of which are more valuable and worthy of protection than others. The poor woman who desecrated the altar in the Paris church, for instance, was advocating a view about abortion that I personally find abhorrent and offensive. She had no legitimate right to her sacrilege, but I have no doubt she sincerely believes in what she’s advocating, and would defend her right to argue for it in the same civilized ways open to all of us.
We used to think along these lines. In 1942, the U.S. Supreme Court identified “certain well-defined and narrowly limited classes of speech” that could be prohibited without raising any constitutional issue, including “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” The court’s reasoning was very similar to the reasoning I’ve outlined, that these kinds of speech are “no essential part of any exposition of ideas” and of such limited social value their harm far outweighs any good they might do.
With the court’s subsequent decisions, those days are gone. Now the lewd, the profane, the libelous, the insulting, and “fighting” words are the stuff of our public discourse, from presidents on down to Twitter. Censorship increasingly involves the restricting of ideas, not the manner in which they are spoken — the reverse of what it ought to be. Consider that the 1942 case involved someone who called a police officer a “fascist,” among other things. How many times have you heard someone called that in the last week?
Our ability to return to sanity in these matters is limited, but for our own clarity of mind, it’s helpful to frame these questions in terms of that principle from Catholic social doctrine: rights are intrinsically connected to duties.
Deacon Kyle Eller is editor of The Northern Cross. Reach him at [email protected].