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The Right to Remain Loud

The government doesn't grant you the right to free speech. It only protects it.

Comments (5)
Thursday, October 29, 2009

If you think the First Amendment of the Constitution explicitly grants you the right to free speech, you are completely wrong.

The First Amendment does not grant you that right. You have the right to free speech, as well as all of the other rights that come from being a free person, such as the right to self-defense and freedom of worship, not because some governmental entity grants them to you, but because you are human. What the First Amendment does is explicitly clarify that the government is restricted only to certain enumerated powers, that it shall not, in particular, step on your inherent freedom of speech.

This is not a subtle point. The American constitution is remarkable in acknowledging the legitimacy and sovereignty of every individual. Every free human being intrinsically has rights, and the purpose of government is to protect those rights.

Contrast this with the United Nations' Universal Declaration of Human Rights. This document states that certain rights are granted to certain individuals in certain circumstances by the government. The Constitution enumerates the few things that the government can do; everything else is prohibited. The U.N. document enumerates the few rights that people are granted; everything else is prohibited.

A few weeks ago, President Barack Obama authorized the U.S. to become a co-signatory of a U.N. draft resolution regarding freedom of opinion and expression. Had he taken the founders' view of freedom, the resolution would have said something like, "No government can abridge the natural and preexisting right of an individual." In other words, it would have limited government.

Instead, this resolution implies free speech is important not because we are free people, but because it is "one of the essential foundations of a democratic society" and because it is "essential to full and effective participation in a free and democratic society." In other words, free speech is good because it helps the government.

If free speech were a natural right not to be abridged by government, as our founders clearly intended, this would be the end of it: Simply forbid the government from zipping our lips and government's role is fulfilled. But if free speech is a privilege granted to support government, it must be supported by more laws. It is now the government's responsibility to ensure freedom of speech.

So how does the draft resolution Obama wants to sign ensure the government's grant of free speech?

Obviously, we must be educated. The resolution "reaffirms that full and equal access to education for girls and boys, women and men, is crucial for the full enjoyment of the right to freedom of opinion and expression."

And of course, the government can't explicitly grant you the right to say bad things. That would reflect poorly on the government. Your freedom of speech can't extend to racially discriminating speech or any speech that might cause someone else to discriminate — literally, to choose. The resolution "condemns, in this context, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination." (Note there is no such problem if we consider our rights truly ours and the government's job merely to protect them — then the government is not responsible for us, we are.)

There's more. No matter what you say (so long as it is pre-approved by the government), you cannot be discriminated against by anybody else. If I want to rent my apartment only to libertarians, I will be thrown in jail, because I am discriminating against those who exercise their freedom of opinion that large government is great.

There's still more. "[U]ndue concentration of ownership in the media in the private sector" must be broken up. If I have a successful media company, one that people voluntarily pay to read or watch or hear, my success may prevent other people's opinions from being heard as loudly as mine are, and from the government point of view, that is bad.

How interesting that the government will decide what concentration is due or undue, regardless of the people voluntarily paying for my service. How interesting that even undue concentration in the public sector — government-run media — is okay.

If the founding fathers had thought people had a right to health care, they would have written an amendment, something like, "The government may not infringe on the people's right to provide health care for themselves or their loved ones." Period.

Today's politicians would write the law the exact opposite way: Government grants people the right to health care because healthier people are better voters. Now the government is on the hook to make sure it provides what it promises. Should we have a public option? Should we regulate insurance? Should we grant them anti-trust exemptions? Should we offer regulated and subsidized medical care to the elderly? All these questions are atrocious to a founding father, but follow inevitably once we are fooled into thinking the government grants us our rights.

Dr. Phil Maymin is an Assistant Professor of Finance and Risk Engineering at the Polytechnic Institute of New York University.

Comments (5)
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It is clear that the mouth can only speak of what is inside an individual. It is a sad day in America when the Leader of America refuses to pray in the NATIONAL Language of the Land , on a National DAY of PRAYER,but will fly to a foreign land and PRAY FLUENTLY in a moslem LANGUAGE.AND have the nerve to declare that AMERICA is no longer a CHRISTIAN COUNTRY. The silent majority is wiping the sleep from their eyes and realizeing OUT OF THE HEART THE MOUTH SPEAKS. AMERICANS KNOW OUR FOUDATIONAL PRINCIPALS .WE AMERICANS ARE REALIZING MORE AND MORE THAT WE ARE BEING MOVED AWAY FROM THESE FOUNDATIONAL FACTS,which are to many to put here, and when the PURPOSE of AMERICA has been fulfilled the WORLD will NO LONGER NEED US in order to finish putting the finishing touches of GLOBAL GOVERNMENT. THE ONLY THING THAT HAS ANY REAL WORTH IN AMERICA IS THE FUNDAMENTAL PRINCIPALS THAT ARE INGRAINED IN US ALL AND THAT AS AMERICANS WE REALIZE WE MUST PURSUE EQUAL RIGHTS FOR ALL AMERICANS WITH A FIRM UNDERSTANDING THAT WITH EQUAL RIGHTS THERE MUST BE EQUAL RESPOSIBILITY A.I am 52 years old and I know the old Patriotic way and I know the new liberal way .I could right a book about standing in the thresh hole of America.
Posted by Michael Sims on 10.29.09 at 4.25
Thanks for the provocative analysis, Phil. I prefer a government as protector of rights to a government as grantor of rights as well. That's one reason the Patriot Act was so disturbing -- the protector became the abuser.
That said, the framers might not have established that the government needs to protect the rights of citizens to receive health care -- might have been that there were not enough leeches to go around. Let's not get mired in debates that simply could not have taken place in 1776. There is no doubt that our health care system is in a shambles and needs to be fixed, for all sorts of reasons, including the fact that brutal social darwinism is no excuse for letting poor people suffer because they can't afford medical care, or that everyone should be expected to pay the inflated cost that results from having poor people be treated in the medical facility of last resort -- emergency rooms -- where costs are the highest.
We can do better than this.
Posted by Josh Mamis on 10.29.09 at 5.37
Hi Josh,

Could you clarify what you find disturbing? It seems to me that you can either believe people have natural rights that government is instituted among men to protect, or believe that government grants us whatever we have.

Either the Patriot Act was bad because it infringed on our rights, and similarly government health care and welfare and Social Security are equally bad in the exact same way, or you think there is a role for government to redistribute money and lives and privacy regardless of what natural rights it tramples on, in which case there is nothing disturbing about the Patriot Act, it's just another manifestation of the same thing.

Best,
Phil
Posted by Phil Maymin on 10.29.09 at 12.57
I guess where we differ is that I do not find taxation a trampling of our natural rights (especially taxation with representation). You ran for office and lost. Presumably, had you won, you could have taken your anti-tax message to Congress and eventually maybe built a movement and gotten other Libertarians elected and repealed small "d" democratically enacted, legal, taxation (at least for government services you find heinous).
Provisions of the Patriot Act (among many) that I find disturbing and have the government taking away the natural rights you refer to include giving the government the power to arrest those expressing fundamental rights of free expression, forcing librarians to spy on citizens using the library and reveal what books and materials they have been looking at, eradicating due process for those accused of crimes or collaborating with those accused of crimes without even having to reveal the evidence ....
But Social Security? Frankly, I'm glad my mother has it right now. Without that, to which she has contributed her entire life, and Medicare, she would be destitute or dead.
Posted by Josh Mamis on 11.2.09 at 6.00
You missed the point entirely, Josh. Phil asked you by what PRINCIPLE can you say that the patriot act is bad but social security is good? You have only provided subjective reasons so far.
Posted by nurbsoldier on 11.5.09 at 11.41
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