Continuing arguments over gun rights and violence brought to mind Tocqueville’s observation that he knew “no country where there prevails, in general, less independence of mind and less true freedom of discussion than in America.” This, for Tocqueville, occurred because “In America, the majority draws a formidable ring around thought.”
To be sure, Tocqueville wrote in the 1830s. But there remains an element of truth in Tocqueville’s observation. The American love of rights and rights-talk is part of this ring drawing that Tocqueville mentions. To speak against a right is different than merely asserting a policy disagreement. It’s to commit a faux paus that invites social exclusion. While courts play a role in announcing rights, rights-talk is in the very warp and woof of Americans’ every day conversations.
By its very nature, rights talk highlights those whom it endows, the winners, and tends to blur those harmed by the right. I’ll return to gun rights in a moment. I want to start with a more-or-less settled example from criminal rights. The well-known adage, formulated at least 250 years ago by William Blackstone, is “the law holds it better that ten guilty persons escape than that one innocent party suffer.” Law professors still repeat the adage in class. As a society we still adhere to the maxim, at least domestically, fetid Trumpisms notwithstanding.
But there is a tradeoff here. The one innocent person goes free. That’s good. But so do ten guilty persons. The latter often commit yet new crimes against other innocents. Our commitment to the rights of our innocent suspect does have a cost: suffering imposed on other innocent people who are no more guilty than our wrongly accused person.
While Americans might disagree with appropriate ratio of freed criminals to freed innocents, that the balance is tipped in favor of protecting the innocent, even at the cost of protecting a lot of the guilty, seems a natural, common sense outcome to most Americans, at least in my armchair observations.
Consider, though, what a similar assessment of acceptable harm would mean in the context of gun rights. There is no commonplace adage—at least as far as I know—to the effect that it is better that ten criminals keep their guns than one innocent gun owner lose his. Indeed, the adage would seem ludicrous. But why do we see the victims of gun violence so much more clearly than the victims of criminal violence more generally?
It would be a mistake to think that the consequences of majoritarian rights talk in focusing our attention on those who benefit and away from those harmed is limited to rights dealing with violent outcomes.
Less dramatically, for example, the rights protected by the First Amendment can harm innocents as well. In the celebrated case New York Times v. Sullivan, the U.S. Supreme Court held “the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).” The Court later expanded this holding to include public “figures,” like film celebrities rather than limiting the holding merely to government officials.
This case represented a significant win for First Amendment rights. William J. Brennan wrote passionately for a unanimous Court of the clear public interest they saw in protecting news reporters from libel lawsuits, even when journalists report falsehoods as facts.
I don’t necessarily disagree with the Court’s calculations on the value of the legal privilege to free democratic debate. Yet often the picture we see when thinking of the protection the Justices announced is of a lone, bedraggled journalist doggedly ferreting out the truth against a corrupt public official. I’m sure it happens that way sometimes.
Yet in this specific case, and others as well, the Court effectively protected a large, for-profit corporation, protecting it even when its employees act unprofessionally in reporting a story: as long as a reporter behaves no worse than mere negligence in reporting the story—being negligent means that the reporter fails to exercise the care that a reasonably prudent reporter would exercise in like circumstances—then the reporter is protected. This, despite publishing something false that an ordinarily responsible reporter would not have reported as true, and thereby harming a public person, perhaps seriously. This person could simply be an ordinary, middle-class employee of the county going about his or her business. The story could ruin a life, yet there is no recourse if the reporter’s falsehoods resulted from mere negligence rather than from “actual malice.”
Even less concrete is the mid-20th Century shift in the free speech rights pertaining to obscene material. Up to the 1950s the U.S. Supreme Court applied the Hicklin test, which defined obscenity as that material with a “tendency . . . to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”
While I don’t pretend application of this test was always uniform or was never applied to suppress legitimate art, nonetheless, in principle, it sought to protect those individuals particularly susceptible to becoming addicted to smut—basically, teenage boys and putative dirty old men.
In 1957, the U.S. Supreme Court expanded the free speech right by rejecting the Hicklin test. Instead, it adopted the well-known definition of obscenity, “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
While this is usually spun as a victory against intrusive moralists, in expanding the free speech right the Court nonetheless threw under the bus those people particularly susceptible to becoming consumed by obscenity. We can argue about the nature of the harm, but the Court, as a matter of constitutional right, prohibited protection of those with a particular weakness of this type of material.
This is not to suggest that a person of average maturity’s access to a given sort of material must necessarily be limited by the weakness of particularly susceptible individuals. Nonetheless, it is not clear, at least to me, that the only obvious resolution of the conflicting interests is to raise the preferences of the strong to the status of constitutional right and disable communities from adjusting the competing concerns with a greater eye to the weak.
What hinges on the way these issues are resolved, as well as others, is who gets seen and who becomes unseen, socially as well as politically and legally. Tocqueville’s tyranny of the majority—the tyranny of majority opinion—isn’t simply a matter of whose opinions count, it also can be a matter of whose harms and what type of harms count and which do not.
James R. Rogers is Associate Professor of Political Science at Texas A&M University.