By Denis G. Rancourt
The legal theory of "competing rights" is repugnant. It is a construct born of power's need to hide the true function of the so-called "justice system". Society's dominance hierarchy imposes itself via a self-organizing integration of brute force, coercion, stealth, and "cooling the mark out" [1]. The competing rights paradigm is a self-serving false justification for power to be an arbiter of "rights". Is such a paradigm necessary or unavoidable in a modern society?
The purpose of the present essay is to provide an analytical framework to resolve what one might call "the free expression paradox". The paradox can be explained as follows. If free expression is a human right then, by definition, it must be absolute. Momentarily leaving aside all the "words that wound" nonsense, words are words, and are the instrument of social participation and influence, such that no person can ever legitimately be silenced. However, is not a general's order to commit a war crime an authentic expression? Is not an attendee's "Fire!" cry in a crowded cinema an authentic expression?
The establishment's answer is that "competing rights must be balanced", and that the justice system will do the balancing. This answer drives home two points: (i) rights compete and can be balanced, and (ii) the courts are impartial and are capable of delivering justice. Within this framework, "words that wound" can be accommodated by postulating a "right to not be emotionally hurt" or a "right to not be defamed", and so on into the downward spiral.
The paradox can be solved by what physicists such as Einstein have called "a thought experiment". In a thought experiment, one mind-creates any desired experimental conditions in order to thought-observe the consequences of the imagined conditions. The relevant thought experiment is to imagine a society entirely absent of any dominance hierarchy. In this society, individuals are actually free to associate and to organize as they choose, and to join or leave associations whenever they choose.
In such a society, the right to freedom of expression is absolute because no one has hierarchical power over another. Therefore, expression is an individual's attempt at influence or persuasion, without being amplified by hierarchical dominance. In such a society, the individuals are independent thinkers, and are use to a barrage of differing messages from other individuals, because there are no power structures to align thought or impose rules.
In this society, screaming "Fire!" in a crowded cinema will not cause a stampede because the independent thinkers present will ascertain for themselves whether there is an actual danger. Having been raised in a society without dominance hierarchies, the individuals are more secure and less easily subject to irrational fears that stem from exposure to indiscriminate applications of authority. The individuals are use to negotiation and are not subject to frantic "every man for himself" reactions which have no purpose. Such reactions make sense in a society where wars can erupt, but have no evolutionary use in a world without dominance.
In this society, individuals are free to efficiently learn about themselves via dialogue, and therefore quickly come to understand their emotional reactions as useful internal messaging, as physiological reactions to their circumstances, rather than as positive or negative states
caused by others. These individuals own and interpret their own emotions rather than blame others for "causing" one's emotions. Sticks and stones, yes, but names can never hurt them. Anyway, the "names" usually speak to hierarchical status and lose their meaning in this society without hierarchy.
Regarding the army general, he is free to give his "order", but these soldiers are free to decide if they want to follow the order. The general becomes constrained to only proposing orders that are likely to be received... Each individual has the same societal power potential. Consequently, the "general" has absolute freedom of expression, as does each "soldier". This army is self-organized and self-run.
In such a society without dominance hierarchies, therefore, the right to free expression is absolute. The problem with free expression arises when society is not free, when society is burdened by dominance hierarchies.
As soon as the general has hierarchical power, then his order constitutes a crime, and cannot be viewed as protected pursuant to the general's right to free expression. Likewise, as soon as individuals are made unnaturally irrational and prone to stampedes or mobbing by long-term oppression from a dominance hierarchy, then screaming "Fire!" is not protected by an absolute and unqualified right to free expression.
Of course, society could in theory choose to make the general's order and the screamer's "Fire!" protected by an absolute right to free expression, as part of shifting the onus entirely on the soldier's responsibility and entirely on the attendee's irrational and dangerous stampede reaction. And one can reasonably argue that this would be a more correct assignment of responsibility, consistent with personal responsibility for one's own actions, while leaving the right of free expression as a true right. This would push the army to allow a larger degree of soldier dissent, and the individual citizen to make more rational evaluations of danger warnings (which would be more frequent).
But institutional power is such that merely imposing an absolute right to free expression would not resolve the problem of harm done by some expression in a hierarchical society. Thus, "balancing opposing rights" is born.
In this way, once we understand the "balancing opposing rights" paradigm as a mechanism to justify and stabilize society's dominance hierarchy, we are brought to a careful examination of who will do the balancing and how will the balancing be achieved.
It is a fundamental law of hierarchies that a hierarchy will always act to strengthen itself. Likewise, it is a law of nature that individual freedoms threaten hierarchy, and that hierarchies always act to suppress individual freedoms [2].
"How the balancing will be achieved" depends on whether we want to move towards more hierarchical control, towards corporate fascism, or towards more individual freedom. In practice, an absolute right to free expression is not an allowed option in a dominance hierarchy. It is especially not allowed by the hierarchy itself. The only option is the on-going give-and-take battle regarding how the "balancing" is achieved.
We must understand this battle as a battle between increasing fascism, which is the natural tendency of dominance hierarchies [2], and increasing individual freedoms. The two are incompatible end points. Increasing one, diminishes the other. It is society's constant battle between hierarchical control and individual freedom. All the institutions are engaged in this battle.
The above understanding leads us to a clear view of how to fight for individual freedom and against advancing fascism, within the "balancing of rights" battle.
When should the right to free expression trump other rights? I propose the following rule. If the individual's free expression weakens the dominance hierarchy's control (employer, institution, etc.) then this freedom is "up freedom" (up the hierarchy) and trumps the other "rights", including contractual rights, employer control, etc. If, on the other hand, the expression, such as corporate propaganda, illegitimate orders, etc., acts against individual freedom, then this "down freedom" (down the hierarchy) is trumped by the interests of the individuals.
In the language of physics, the presence of hierarchy "breaks the symmetry of the system", such that we must define two kinds of freedom, "up" and "down" freedoms. Freedoms must be allowed differently, depending on whether they act up or down the hierarchy.
As one consequence, whistleblowing becomes absolutely protected.
Of course, the justice system argues that it is already achieving the optimum balance to "protect" individual rights within a strong hierarchical (institutional) framework. And so the battle goes.
On the other hand, if I had the power to do so, I would make free expression an absolute right for all immediately, and let the pieces fall where they may. As a thought experiment, there is no doubt in my mind that an absolute right to free expression would overwhelmingly work in favor of increasing individual freedom and towards pushing back corporate/government fascism. It would make for a happier place.
References
[1] Goffman, Erving, "
On Cooling the Mark Out: Some Aspects of Adaptation to Failure",
Psychiatry, 1952.
[2] Rancourt, Denis G., "
Hierarchy and free expression in the Fight Against Racism", Stairway Press, 2013.
Other essays by Denis Rancourt are
HERE.
