What Are Human Rights?

As the title of this book reveals, my project is to ascertain whether freedom of expression, properly conceived, is appropriately regarded as a “right,” or more precisely, as a “human right.” Most of the book will be devoted to asking which of various conceptions of freedom of expression is the most eligible for that status and what range of activities will it protect.

A. Human Rights as Moral Rights

When one claims a “human right,” what kind of claim is one making, and how might one justify it? The kind of human rights claim I am interested in is one that equates a human right with a moral right that exists apart from any particular legal or institutional arrangement, national, ethnic, or religious identity, tradi­tion, or historical circumstance. Allen Buchanan and David Golove put it this way:

By definition, human rights are those moral entitlements that accrue to all persons, regardless of whether they are members of this or that particular polity, race, ethnicity, religion, or other social grouping.¹

Put succinctly, a human right is a moral right that can be validly invoked by any person^{[1] [2] at any time or place.}

Human rights as moral rights entail obligations on others. The obligations can be negative ones - obligations to forbear from actions that impede a liberty protected by the moral right or that threaten some good, such as life or property, protected by the right. Alternatively, the obligations can be positive ones re­quiring those subject to them to provide others with specific goods or services. A right to freedom of expression is normally thought at its core to entail the negative obligation that government not penalize the exercise of a certain liberty or set of liberties.

Some might argue that I have mischaracterized human rights by deeming them to be moral rights. They would contend that human rights are legal rights established by international treaties and conventions or by customary interna­tional law. Thus, Article 19 of The Universal Declaration of Human Rights provides that “Everyone has the right to freedom of opinion and expression.”⁵ And Article 19 of the International Covenant on Civil and Political Rights, sec­tion 2, declares that “Everyone shall have the right to freedom of expression.”⁶ As this argument would put the matter, it is these international conventions, and the subscription thereto by the nations of the world, that create and define the right of freedom of expression. The human right of freedom of expression is a posited, dateable legal right, not a timeless moral right that preexists the instruments of international law.

³ Buchanan and Golove assert that some private actors are potential violators of human rights, although, in making that assertion, they do not have freedom of expression specifically in mind. See Buchanan and Golove, supra note 1, at 888.

⁴ See Owen M. Fiss, “Free Speech and Social Structure,” 71 Iowa L. Rev. 1405 (1986); Cass R. Sunstein, “Free Speech Now,” 59 U. Chi. L. Rev. 255 (1992).

⁵ The full text of Article 19 is as follows:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

⁶ The full text of Article 19 is as follows:

1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and im­part information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in the foregoing paragraph carries with it special duties and responsibil­ities. It may therefore be subject to certain restrictions, but these shall be such only as are provided by law and are necessary, (1) for respect of the rights or reputations of others, (2) for the protection of national security or of public order (“ordre public”), or of public health or morals.

I do not find this argument persuasive. It is true that the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are legal instruments, at least when nations subscribe to them, or when they become norms of customary international law. That point conceded, however, examination of the language of these documents reveals that they assume a preexisting right of freedom of expression to which they refer and declare to be henceforth a right under international law. In that respect, they are similar to the First Amendment of the United States Constitution, which itself refers to “the freedom of speech” as if the content and scope of that freedom is independent of and preexists the First Amendment itself.^[3]

In any event, I am interested in determining whether there is, in fact, a universal moral right of freedom of expression to which these international and domestic legal instruments could be referring when they announce a legal right to freedom of expression, and if so, what its content and scope are. For if there is no such moral right, or if the moral right has a content and scope far different from what people imagine, this may have far-reaching consequences for how legal documents referring to freedom of expression or freedom of speech should be interpreted and for how we regard states whose treatment of expression differs from our own.

Interestingly, moral philosophers who have addressed this issue are divided. John Rawls, for example, who believes that freedom of expression is a liberty that a just liberal society must grant,^[4] does not list it among the human rights that the international community must honor.^[5] On the other hand, others ar­gue that the human rights Rawls does recognize depend as an empirical matter on government’s being democratic, which in turn they argue requires freedom of expression.^[6]

B. The Grounding of Human Rights

If human rights are moral rights that impose obligations on others, how does one establish that a claimed moral right and its correlative obligations actually exist? For my purposes here, the following existence condition for a moral right should suffice: A has a moral right to X if there is a valid (correct) moral principle such that A has a valid claim that others provide A with X. If the moral right is a negative right, then X is forbearance from impeding or penalizing A’s liberty or forbearance from transgressing or endangering A’s life, property, or other interests. If the moral right is a positive one, then X is some good or service.

If the core of a right of freedom of expression consists of a negative liberty right against the government, then A has a moral right of freedom of expression if there is a valid moral principle such that A has a valid claim that govern­ment not penalize or impede in certain ways A’s exercise of expressive liberty, appropriately defined. This moral principle, and the liberty right it generates, might be grounded on some feature of A, such as A’s autonomy. Alternatively, the right might be grounded on the more general good consequences (for A and for others) that flow from its recognition and observance. The former ground­ing produces the type of right characteristic of deontological moral theories, whereas the latter produces the type characteristic of (indirect) consequentialist moral theories.

Buchanan and Golove survey what they regard as the most prominent jus­tifications for human rights, remarking that the justifications are diverse but at the same time tend to converge.

Individual human rights are presented as (1) principles whose effective institutionaliza­tion maximizes overall utility, (2) as required for the effectiveness of other important rights, (3) as needed to satisfy basic needs that are universal to all human beings, (4) as needed to nurture fundamental human capacities that constitute or are instru­mentally valuable for well-being or human flourishing, (5) as required by respect for human dignity, (6) as the institutional embodiment of a “common good conception of justice” according to which each member of society’s good counts, (7) as required by the most fundamental principle of morality, the principle of equal concern and respect for persons, (8) as principles that would be chosen by parties representing individuals in a “global original position” behind a “veil of ignorance”, and (9) as necessary conditions for the intersubjective justification of political principles and hence as a requirement for political legitimacy.¹¹

Some of Buchanan and Golove’s human rights’ justifications are clearly conse- quentialist in nature ((1) and (2)), others deontological ((5)), and the remainder could be either, depending upon their elaboration.

Prospects for establishing a human right of freedom of expression are best if the moral right is a negative liberty right of a deontological, not indirect conse- quentialist, nature. Indirect consequentialist arguments supporting freedom of expression are likely to be successful only in limited and particularistic ways ^[7] that fail to establish a human right as I have defined it. This is a point I shall come back to at various places in the book.

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I shall also briefly consider in Chapter Two and again in Chapter Six the pro­posal that the moral right underpinning freedom of expression imposes positive obligations on government to provide minimal or equal means to communi­cate.

For most of the book I shall assume that the duty-bearer of the obligation correlative to the right of freedom of expression is the government. For freedom of expression is almost always invoked - especially in human rights arguments - against governmental actions, not actions taken by nongovernmental actors. Government, however, is merely the agent of those who have delegated to it the authority to interfere with others’ liberties, so that government qua government is just a shorthand for those natural persons whose policies are being effected. That might suggest that the human right of freedom of expression is a right against natural persons rather than a right against the government. Nonetheless, although I endorse the reductionist view of the government that this suggestion reflects, I do think that government as the producer and alterer of laws and legal statuses is central to the right of freedom of expression. I shall therefore throughout the book treat freedom of expression as a right that the government not pass and enforce certain laws or take certain actions qua government. In Chapter Six, however, I shall consider specifically how freedom of expression claims might apply to the acts of nongovernmental actors.

II.