Balancing Rights

MAYBE NOW IS THE TIME

There are many fine writers on substack who are currently talking about a better way forward for the United States: about core values that they believe should be reflected in culture and supported by government. Many are writing about freedoms, or freedoms and protections.

Maybe now is the time to talk about how those freedoms can be structured in law and what processes can be put in place to make them workable.

Most of the freedoms and protections being discussed are described in the 1948 Universal Declaration of Human Rights. The Declaration was also drafted as a specific response to particular events, being the Nazi crimes before and during World War II. It was an attempt to prevent such events occurring again, by encouraging nations to adopt core freedoms and values in their legal systems.

The Declaration followed on from President Roosevelt’s 1941 identification of the ‘four freedoms’ of Speech, and Worship, and from Want, and Fear. The rights and freedoms set out in the Declaration include those four rights, with many others, as part of the focus upon the need for all humans to be treated with respect and dignity and to be given ‘the protection of the rule of law.’

Countries that are signatories to the Declaration - including the USA - have an obligation to implement the rights, freedoms and values in the Declaration in their domestic laws.^[1] As a result, at both national and international levels:

1. principles of human rights law have been developed for interpreting and implementing the Declaration and other international human rights treaties^[2], and

2. substantial case law about human rights has been created at:

• international level - see decisions of United Nations Committees

• EEC level – see decisions of the European Court of Human Rights and

• national level – see for example decisions of the German Constitutional Court

That is, there are established guiding interpretative principles and an established framework for managing freedoms and values in practice. The ultimate aim is to ‘balance’ the different freedoms and values.

Considering how this is done can help us see how to apply and protect core freedoms and values in the US context.

Principles underlying the balancing act

The guiding interpretative principles are that human rights are universal, indivisible, interdependent and interrelated. That is, they are intended to be freedoms shared by everyone. Absolute rights (to be free from genocide, torture and slavery, and to internal freedom of belief) should not be infringed under any circumstances. All other rights are equally valuable amongst themselves and should all be supported to the maximum extent possible.

Where there are competing rights, a balancing of the competing interests may be required so as to reasonably accommodate and maximise all rights involved.

With some rights - such as to be free from torture - there is clearly little room for balancing.

Similarly, the right to hold one’s own internal beliefs, being both an aspect of freedom of speech and of freedom of religion, is seen as an absolute right. However the ability to express those beliefs, or to act on them, is not regarded as an absolute freedom, but one which must be balanced against the rights of others.

Where freedoms conflict, a balance can be sought by reference to other human rights, other types of rights, and other principles and considerations such as reasonableness or proportionality.

Balancing may also need to operate ‘within’ a freedom – for example, where expressions of different religious beliefs are in conflict. And of course, ‘freedom of religion’ logically includes the freedom to not follow any religion, to be atheist or agnostic (otherwise it wouldn’t be ‘freedom’ of religion but ‘compulsory’ religion).

Abuse of rights

The extent to which claims for the legal protection of a human right or freedom impinge upon others peoples’ rights or freedoms (or others’ exercise of the same rights) is a good test of whether the protection claimed is reasonable or not.

Generally, behaviour – including the expression of personal rights or freedoms - should not be protected by law where it unreasonably impacts on others.^[3]

The related concept of ‘abuse of rights’ adopted in Germany’s post- Second World War Constitution recognises that abuse of rights, particularly of free speech, can hinder the quality of public discourse and ultimately undermine democracy. Under this method of balancing rights, entities (and not only individuals) will forfeit their basic rights (such as freedom of speech or freedom of the press) if they use their own rights to harm others.

Civil law systems differentiate between true and false statements, affording less protection to verifiably false or misleading information, particularly if the misleading information infringes on the rights of others or undermines public discourse.

Other principles

Case law also applies the principles of proportionality and legality as part of the integrated human rights framework.

The principle of proportionality means that legal restrictions on core freedoms or rights “must have a legitimate aim, and the means used to achieve that aim must be proportionate and necessary” - that is, appropriate.

Similarly, the principle of legality means that restrictions on freedoms and rights must be “clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty.”^[4]

Together, the principles described above provide a practical and integrated human rights law framework which continues to develop and respond to current social mores. It facilitates testing the appropriateness and impact of any legislation, bearing in mind that the framework is inherently contextual and cannot easily be applied on a purely theoretical basis^[5] and that balancing conflicting interests and rights is never easy.

Following the principles discussed above, any legislation encroaching on a freedom or human right should meet the following criteria, which are referred to here as ‘principles of good legislation’:

1. be clear, accessible and precise, including by having key terms defined and key concepts explained, so that the legislation is readily comprehensible;

2. apply to all people equally, not discriminate on arbitrary or irrational grounds, not discriminate indirectly, and not be retrogressive in diminishing existing rights or accepted norms (including international human rights norms);

3. be in pursuit of a legitimate objective, be necessary in pursuit of that objective and have a rational connection to the objective;

4. be proportionate in its impact to the objective (taking into consideration whether there are other less restrictive ways to achieve the aim, the impact of the legislation upon human rights, whether affected groups are particularly vulnerable, and whether the merits of individual cases can be taken into account) and not be disproportionately severe (that is, not involve reverse burden offences or strict liability offences, nor punishments where no harm has been caused);

5. be transparent so that decisions made under the laws are open to scrutiny, enshrine accountability by specifying to whom the decision-maker is accountable, by what process, according to what standards and involving what effects, and contain effective and transparent safeguards or controls (including as to monitoring and access to review, public trial, no limitations on judicial discretion or information available to legal representatives, notification to persons affected by the legislation);

6. only permit proportionate subordinate legislation (in particular, not subordinate legislation that creates new offences or confers new powers on executive agencies) and not allow key concepts or terminology to be defined in subordinate legislation.

These principles also represent an aspect of the right ‘to the protection of the rule of law’, described in the Universal Declaration of Human Rights. That is, as other Articles spell out, there must be proper laws which are not discriminatory, a legal system that allows appeals against government decisions, and the laws of the country must be properly enforced.

Comparing practices

The first point to make in comparing US and other practices in relation to protecting human rights is that the US Bill of Rights is more limited in scope than the Universal Declaration of Human Rights and the other core international treaties.

The second point is that the US Bill of Rights has been interpreted by the United States Supreme Court in quite a different manner from non-US Courts’ interpretations of human rights. Let’s take the right to free speech as an example.

• Content and Context: The U.S. Supreme Court generally avoids considering the content, context, or consequences of speech when determining its protection. This 'content-blind' approach stems from a distrust of government censorship and aims to protect even the most offensive or hateful speech so long as it doesn't pose an immediate danger. Non-US courts consider content, context and consequences before deciding whether particular speech is worthy of protection. They consider whether the speech abuses or attacks the rights of others.

• Balancing Competing Rights: Non-US courts balance the right to free speech with other rights, such as the right to equality, human dignity, and protection from harm. This approach acknowledges that unlimited free speech can lead to the subordination and harm of vulnerable groups, particularly in the context of hate speech. The U.S. Supreme Court does not do this.

• Formal vs. Substantive Equality: U.S. jurisprudence often focuses on 'equality as sameness’, disregarding the historical and social context of inequality. This contrasts with the more contextual understanding of equality found in non-US courts, which recognise that treating different situations equally can perpetuate inequality.

Protecting the right to speak, not just existing speech

In the US, freedom of speech is not protected structurally. It is only existing, not potential, speech that is protected. And as we have discovered, it is those with more dollars whose speech is more likely to be heard. There is no longer any ‘free market place of ideas’, if indeed it ever existed.

Germany's Basic Law, by contrast, goes beyond protecting free speech to enshrining a broader right to communication. This framework recognizes a positive duty on the state to not only protect free speech from government intrusion but also to actively promote diverse and accessible communication, for example by regulating media monopolies and ensuring balanced broadcasting. This approach considers the responsibility of both individuals and the state in fostering a democratic society where communication contributes to informed public discourse.

In essence, the US system prioritizes speech irrespective of its meaning, ignoring its likely real-world consequences, whereas other systems prioritize a more contextual and balanced approach that weighs the meaning of any speech against its impact upon other fundamental rights and values, and which gives protection to potential speech.

Going forward

Freedoms need legislative support and government protection. Many of our core values are about freedoms ‘from’ the behaviour of others. So freedoms also involve the need for their protection. The Bill of Rights doesn’t go far enough in enabling such protections, but the USA can also look to the legal systems which have grown up internationally and nationally in response to the Universal Declaration of Human Rights and related international treaties.

The balancing framework I have described above, and its underlying principles, provide an existing and practical system for implementing important social freedoms and values. This is the structure that can support the US in going forward.

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This document draws upon Morton Winston, On the Indivisibility and Interdependence of Human Rights, Paper presented to 20^th World Congress of Philosophy conference, 11 August 1998, Boston University Website, and Alice Donald and Erica Howard, The right to freedom of religion or belief and its intersection with other rights, ILGA-Europe Research Paper, 2015

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^[1] https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law

^[2] These are: the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights of the Child; Convention on the Rights of Persons with Disabilities.

^[3] The last article of the Universal Declaration of Human Rights states specifically that nothing in the Declaration may be interpreted as endorsing acts aimed at the destruction of any of the Declaration’s rights and freedoms, and the previous article approves of restrictions on rights and freedoms only ‘as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’

^[4] Donald and Howard, i.

^[5] Donald and Howard, i.