The inadequacy of rights

The First Amendment to the U.S. Constitution, preeminent within the Bill of Rights, is undoubtedly a powerful tool of great utility. Limited though it is by the efforts of technocrats and authoritarians alike, it nonetheless protects a vast range of behaviors and serves as a potent emotional rallying point for allies and advocates of freedom.

But the notion of a right to “freedom of speech” is misleading. Yes, this legal hack helps to protect people, but it goes only so far: it is a negative right, serving merely to constrain the activities of the government. While direct government censorship is rare in the United States, the discursive activities of its inhabitants are not “free.” The power to censor or repress is certainly a mighty one, but I would argue that it is not the primary way in which people are subjected to control. Power carries its effects not only as a limit or restraint: power networks are creative, too, and this positive effect is not always welcome. (Hat tip to Michel Foucault.)

Example: School students certainly are subject to censorship and prohibition; but even more they are the victims and subjects of a great proliferation of speech. Teachers, parents, school officials, doctors, counselors, police: what they say, how they say it, to whom they speak, which boxes they pencil in and which they leave blank — these constitute potent methods of control. And the speech which is required of you — who cares if you have the right to remain silent? If you do not speak, they will happily speak for you. The negative right of free speech does nothing to protect you. Indeed, free speech can be a cover which enables others to speak over you, for you, to you, about you. The phone call from principal to parent; the parent-teacher conference; the report card. What right protects you? What right can ever protect you from these reports and conferences of control?

(In fact, we may find that one of the prime functions of the First Amendment’s rights to speech and assembly is to serve as an ideological spine-stiffener. The actual legal protections promised by the First Amendment are not themselves universally available or homogenously deployed; but the general understanding that you can say and write whatever you want helps give people determination and the moral / mental force they need to mount their resistance. Rights bear great moral weight, and so can sometimes be used to sway those who otherwise don’t give two shits about you. Rights are activist tarbabies — if you can trick your interlocutor to violate your right, you’ve got them, but all it requires to nullify your power is to stay just outside the boundaries of Violation. Skirting the edges of the range of your weapon … )

Rights are powerful and often effective discursive and legal tools of resistance. They allow groups and individuals to push back against direct domination and certain types of government actions. It is proper to seek out and secure our rights. But the rights discourse completely bypasses whole realms of power relations which together influence and determine our lives in profound ways. Rights help you only insofar as the power networks you find yourself caught in are primarily juridical, or can be moved to that sphere. They give you something to hang on to; a cause of action or someone to sue; they are shields and rallying points, if you can somehow force your opponents to focus in and get trapped. But we need more pivots and handles than any regime of rights can ever supply. We need to branch out and find other tools of resistance — and perhaps more imaginative applications for the discourses and legal constructs we already live within.

I want more attention paid to our concrete experiences of resistance and more focus on what untapped opportunities we can find for (Memetics is an interesting field in this vein.)

Questions: Can rights have effects greater than the narrow ones I allow them? Might it be helpful to have a “medical bill of rights” (or “fill-in-the-blank bill of rights”)? Was this all too abstract, requiring more and more blog posts to make sensible?


~ by dejavuoracle on April 16, 2009.

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