Conclusion

Somewhere, something has gone wrong. Perhaps the putative human right of freedom of expression entails a complete blueprint of legislative, executive, and judicial action with respect to every possible act-token.

Alternatively, perhaps human rights law is an expressivist battleground, concerned with evaluating rulemakers and the “meanings” they express (intentionally?) by their rules, rather than with evaluating the rules based on the rules' more straightforward effects. Perhaps judicial invalidation on human rights grounds is itself meant primarily to express contrary meanings rather than to see that public debate is unskewed, or that public pools are open to ev­eryone, or that other similarly tangible results are brought about. Perhaps, but I seriously doubt it. It is true that we, like dogs, can tell the difference between being tripped over and being kicked, but it matters to us only when we care about the attitude of our injurer. Human rights law seems, to me at least, to be properly concerned with rules and their tangible - and remediable - effects, not with governmental attitudes.

Another possibility is that laws resulting from certain legislative purposes are invalidated, not because we know their effects will be bad, but because we cannot predict and assess their effects with any reliability. Instead, we use certain legislative purposes as proxies for defective legislative deliberations, which we conclusively presume to lead to bad effects. In other words, desired effects are to be achieved, not by direct judicial implementation through inval­idation of legislation that fails to produce those effects, but through a judicially enforced rule invalidating all legislation that is enacted for specific illegitimate purposes, regardless of whether the legislation ultimately differs in its effects from legislation enacted for proper purposes.^[96]

The principal problem with this argument is that it results in different treat­ment of identical laws in separate but otherwise similar jurisdictions.

Of course, one could still argue that, although different results in cases of identical laws enacted for different purposes look nonsensical, over the long run the purpose-focused rule will perform better than an effects-focused rule. In other words, if the concern is, say, a skewing of public debate, then a rule invalidating all legislation enacted to favor or disfavor certain viewpoints might, in the long run, produce less skewing than an effects-focused rule, even if in specific cases the former rule produced as much or more skewing than the latter.^[97]

Finally, one might argue by analogy to criminal recklessness that it is wrong to risk harm to another without a sufficient reason for doing so. If the govern­ment, as the community, risks stifling speech for no sufficient reason (because it objects to the message), then it has acted recklessly without regard to whether harm results.

Now it is true that one can make a case for governmental recklessness here in terms of culpability. But it is doubtful that actual wrongdoing, as opposed to culpability, can be shown. For example, suppose a driver takes what he believes is a substantial and unjustifiable risk of hitting a pedestrian, but we can see that the driver will not in fact hit the pedestrian.

In the case of laws such as the “no public burning” law that are enacted for improper reasons (because they will stifle flag burning), there are good reasons for the law - public safety - that coexist with the bad. If the good reasons out­weigh the bad - which they may since the same law enacted for good reasons is permissible - then the law produces no net social harm. We have government culpability, perhaps, but not an enactment that will cause harm. The proper analogy in the criminal law context would be a reckless act that we know will fail to cause the harm it risks and will actually produce a benefit. We must punish the defendant for his culpability, but we would not enjoin his conduct.

However, unless I am wrong about either of these two points, then I believe we end up with the odd pattern of constitutional judgments I presented in the previous section. That pattern surely needs to be justified or denied, neither of which I can do. As the King of Siam was wont to say, “It’s a puzzlement.”²⁶

I do have an intuition, however, that the source of this problem - and the remedial and standing problems that go with it - is optionality. Ifhuman rights do entail a single, coherent political philosophy, then rules will be either man­dated or forbidden but will not be optional. Legislative purpose will not matter. A mandated rule will be proper regardless of why the legislature enacted it, and a forbidden rule would not be redeemable by good intentions. Switching between permissible rules will be impossible because only one set of rules will be permissible. And the remedy for improper enactments will be to reestablish the mandated corpus juris.²⁷

government produces warranted by the facts; or, are other proxies or a direct look at effects superior ways to deal with the effects that are the ultimate concern?

²⁶ Richard Rodgers and Oscar Hammerstein, The King and I.

²⁷ In Chapter Two I examined briefly whether a comprehensive normative theory, such as a Rawlsian, utilitarian, or libertarian one, which would in principle render all rules either manda­tory or forbidden, can justify a freedom of expression analysis of Track Two laws. See Chapter Two, text at note 58.I concluded not only that comprehensive normative theories cannot

Optionality may carry with it the virus of incoherence. Rights against rules may best describe large portions of human rights and constitutional doctrine, but ultimately rights against rules and its corollary of the optionality of rules suggest a picture of human rights and constitutional law in which we care only why people are treated as they are by government and not about how they are treated. Such a picture ultimately seems a radical distortion of why we care about human and constitutional rights.

justify Track Two analysis, but also that such theories might not be able to account for a right of freedom of expression of any sort. In Chapter Seven, I take up this issue more generally.