Conflicts with other Rights

Conflicts with other Rights

Right	Breakout	Contents
Freedom of Association		Differences in state and federal law contribute to varying levels of freedom of association across the United States. While Supreme Court cases such as Bates v. Little Rock, Shelton v. Tucker, Roberts vs. United States Jaycees, Boy Scouts of America vs. Dale, and Christian Legal Society vs. Martinez upheld the right to freedom of association, the right continues to be violated across states. Furthermore, despite its support from the Supreme Court, the system of federalism often leads to the restriction of freedom of association by local courts and authorities. Particularly in South Florida, Lance Compa investigates how nursing home workers’ rights to free association have been violated. Furthermore, Compa explains how federalism exacerbates these violations. Noting the Palm Garden nursing home case, Copa discusses how nursing home workers were threatened with pay and benefit cuts if they decided to join unions. Additionally, Compa notes Palm Garden’s personnel manual, which states, “This is a non-union health center...if you are approached to join a union, we sincerely hope you will consider the individual freedoms you could give up, and the countless risks you could be taking.” After workers were in fact fired for joining unions, Compa notes, the NLRB asserted that Palm Garden must reinstate employees, as they had violated the workers’ right to free association. Still rejecting rehiring the employees, Compa explains that Palm Garden appealed to federal court, where the case still remains pending indefinitely. Furthermore, while the Supreme Court may uphold freedom of association, this does not mean the right can be strictly enforced throughout the United States, as appealing to federal courts demonstrates a significant challenge. Additionally, Compa notes how freedom of association has been restricted for food processing workers. Specifically, Compa discusses the abuses faced by Smithfield workers in North Carolina, a state dominated by the food processing industry. Firing union activists and actively intimidating and discriminating against organizing workers, the Smithfield Plant violated its workers' freedom of association in numerous ways. Compa stresses that these abuses were ultimately the result of federalism, a system that contributes to the restriction of freedom of association. Compa states, “Instead of fulfilling the affirmative responsibility of government authorities to protect workers’ rights, state power was used to interfere with workers’ freedom of association in violation of international human rights norms.” Noting how local police were permitted to intimidate workers at the Smithfield Plant, Copa affirms how local authorities restrict freedom of association, countering federal law. This demonstrates how the division of state and federal power can weaken the strength of freedom of association, as local governments can discreetly work to limit the right.
Freedom of Association		The right to associate - specifically, the right for associations to exclude people from membership for whatever reason they want - may conflict with the right not to face discrimination based on immutable characteristics such as race and gender. The US Supreme Court has decided cases where an association’s decision to exclude members conflicts with non-discrimination law. In Roberts v. US Jaycees ( 1984) , the court rejected the free-association claim of a male-only business organization because its association was neither “expressive” nor “intimate.” In Boy Scouts v. Dale ( 2000) , however, the court held that the Boy Scouts of America could exclude gay members because not being able to do so would violate the organization’s right to expressive association. Free expression is critical to the practice of free association. The US Supreme Court explicitly protects “expressive” association because many associations exist to express a particular viewpoint. If a government restricts the advocacy of certain ideas, it will almost certainly restrict the activity of groups whose purpose is to express those ideas. Additionally, freedom of association depends on the free exercise of religion. As Locke wrote in A Letter Concerning Toleration, a church is a “a society of members voluntarily uniting” (Locke 1689, 9). Religious observance often requires worship in large groups, so restricting these religious practices entails the abridgement of free association. Roberts v. US Jaycees: https://supreme.justia.com/cases/federal/us/468/609 Boy Scouts of America v. Dale: https://www.oyez.org/cases/ 1999/ 99-699 A Letter Concerning Toleration: https://socialsciences.mcmaster.ca/~econ/ugcm/3ll3/locke/toleration.pdf
Freedom of Association		Numerous scholars offer interpretations of the hierarchy of rights, placing freedom of association at differing levels of importance. Noted by Tom Farer in “The Hierarchy of Human Rights”, human rights are non-negotiable, and thus are prioritized within the hierarchy. As to why certain rights remain at the top of the hierarchy, Farer answers “because all other rights are dependent on them.” Furthermore, Farer claims that a consensus among United States human rights organizations is that the rights to life, physical security, and due process are essential human rights. Excluding freedom of association from his selection of non-negotiable human rights, Farer undermines its importance within the hierarchy of rights. Thus, Farer emphasizes that the rights to life, physical security, and due process hold precedence over the right to free association. Fernando Surez Muller argues that there is a select group of fundamental rights that are essential to the exercise of all other rights. With this, Muller emphasizes that certain rights must be prioritized in order for others to be functionally implemented. When analyzing the Universal Declaration of Human Rights, Muller interprets freedom of association to be a right of particular importance. Muller argues that the rights to communication and expression are impossible to exercise without the right of free association, claiming, “Related to this transcendental right to communication (cell 6) are also all mobility rights (mentioned in articles 13 to 15) because communication is not only a matter of expression but it is also a matter of transporting and receiving the message and this requires freedom of association.” Thus, from Muller’s perspective, freedom of association maintains a high position within the hierarchy of human rights. Explained by Kimberley Brownlee and David Jenkins of the Stanford Encyclopedia of Philosophy, the right to associate often only pertains to certain associations. Because of this, different rights to different associations have varying ranks within the hierarchy of rights. Brownlee and Jenkins claim “However, since not all associations operate according to either implicit or explicit declarations of consent, exactly what counts as consent is a difficult thing to assess: How do we know when association is free? This problem is exacerbated by the hierarchical form that many associations take.” For this reason, Brownlee and Jenkins note that explicit associations, group identifications that are easy to identify and thus protect, are often prioritized within the hierarchy of rights.
Freedom of Association		The Universal Declaration of Human Rights places freedom of association at a high position of value. The document asserts: “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” While the document does not enumerate human rights in hierarchical order, the platform of the United Nations and the inclusion of the freedom of association within the document suffices the right’s universally accepted importance and position of high status. Additionally, the inclusion of freedom of association within the European Convention on Human Rights emphasizes the value of the right. Asserting the importance of freedom of association, Article 11 claims, “Everyone has the right to freedom of peaceful assembly and of association with others, including the right to form and join trade unions for the protection of his interests.” Stressing freedom of association to be an essential human right, the Convention echoes the Universal Declaration of Human Rights, upholding the value of freedom of association. The Canadian Charter of Rights and Freedoms similarly elevates freedom of association to a high status. Within its fundamental freedoms section, the charter emphasizes “Everyone has the following fundamental freedoms: a. Freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association.” Explicitly stating that the freedom of association is one of the four fundamental freedoms, the Charter clearly asserts that freedom of association is essential to the liberty of individuals. Given the select group of fundamental freedoms, the placement of freedom of association within the list demonstrates its uplifted position within the greater hierarchy of human rights. In the Declaration on Fundamental Principles and Rights at Work, the International Labour Organization additionally upholds the pertinence of freedom of association. Within the declaration, the ILO asserts four categories to be promoted by member states, including freedom of association. Similar to The Canadian Charter of Rights and Freedoms, by only including a select group of rights, the Declaration affirms the high status of these freedoms. Thus, the inclusion of freedom of association within the four categories asserts its importance
Freedom of Association		Freedom of expression and freedom of religion are two of the most critical liberties for upholding freedom of association. As noted by the International Commission of Jurists (ICJ), “freedom of expression is frequently a necessary component of the rights to freedom of assembly and association when people join together for an expressive purpose” (ICJ n.d.), indicating that the liberties are intertwined. The United States Supreme Court itself has also stated that it “has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion” (Roberts v. United States Jaycees 1984, 618). In other words, true freedom of association is not possible without the freedom to speak or to practice a religion, both of which often involve congregation and organization among citizens. Freedom of expression and freedom of religion are often discussed together in court cases, indicating that the two rights are enmeshed. For example, in 2009 the country of Honduras experienced a coup d’etat when then-President Zelaya was forced out of office by members of his own cabinet and other government organs. Many protested this act, including four judges who expressed their support for rule of law by attending demonstrations and conversing with others. These individuals were also a part of the Association of Judges for Democracy (AJD), and used the organization’s platform to speak out against the coup. Once it was found that the judges had and expressed political opinions in these ways, they were stripped of their positions, prevented from holding AJD membership, and convicted of violating the judicial code of ethics (Lopez Lone et al. v. Honduras 2015, 14-48). The plaintiffs, then, appealed the judgements to the Inter-American Court on Human Rights (IACHR), citing infringements on both freedom of expression and freedom of association. The Court eventually confirmed that the rights of the judges had been violated, explaining that their political participation was acceptable “in a context in which democracy is being impaired” (Lopez Lone et al. v. Honduras 2015, 57), while in other cases impartiality of officials is necessary. On the subject of the liberties that were violated and their importance, the Court stated that “it has recognized the relationship that exists between political rights, freedom of expression, the right of assembly and freedom of association, and that these rights, taken as a whole, make the democratic process possible. In situations where there is a breakdown of institutional order following a coup d’état, the relationship between these rights is even clearer, especially when they are all exercised at the same time in order to protest against actions by the public authorities that are contrary to the constitutional order” (Lopez Lone et al. v. Honduras 2015, 52). In addition, it claimed that “the ability to protest publicly and peacefully is one of the most accessible ways to exercise the right to freedom of expression, and can contribute to the protection of other rights” (Lopez Lone et al. v. Honduras 2015, 55). Through this case, the IACHR affirmed that freedom of expression is deeply intertwined with freedom of association. The critical connection between freedom of expression and freedom of association is further made clear in the African Commission on Human and Peoples’ Rights (ACHPR) case of Williams v. Zimbabwe. Between 2003 and 2013, individuals representing the organization Women of Zimbabwe Arise (WOZA) participated in protests where they used verbal expressions, held placards, and more. As a result, members were arrested multiple times by the Zimbabwean police and charged with attempts to disturb the peace and similar crimes under the state’s criminal code. Even after the Supreme Court of Zimbabwe stepped in and defended the rights of the victims, police continued to perform arbitrary arrests and blocked members of WOZA from peacefully protesting. As a result, members of the organization filed a complaint to the ACHPR stating that the Zimbabwean government had denied them multiple rights, including freedom of association and freedom of expression, as defined by the African Charter (Williams v. Zimbabwe 2021, 1-3). When deciding this case, the Court states that they would analyze the alleged violations of both rights at the same time, because “the rights to freedom of expression, assembly, and association are intertwined to the extent that they are fundamental human rights that form the foundations of democratic societies”(Williams v. Zimbabwe 2021, 18). The Commission also stated that, in the past, they had “found a violation of freedom of expression when the State violated the rights to freedom of association and freedom of assembly” (Williams v. Zimbabwe 2021, 18). Eventually, the body was led to the conclusion that the restrictions placed on freedom of expression, and by default freedom of association, were not justified. As noted in the case report, “associations must be given the freedom to pursue a wide range of activities, including exercising their rights to freedom of expression and assembly” (Williams v. Zimbabwe 2021, 18), summarizing how both rights are critical to each other in the context of the case and in general. Judiciaries have also often examined freedom of religion and freedom of association together, as can be seen in the European Court of Human Rights (ECHR) case Metropolitan Church of Bessarabia and Others v. Moldova. In 1992, the Metropolitan Church of Bessarabia was created. It applied to the Moldovan government for recognition as a religious denomination, as was required by Moldovan law. However, the application went unanswered by the government, and so for the next seven years the institution alternated between pursuing legal proceedings against the government and reapplying for recognition. In every case, the government ignored or refused the Church’s requests, stating that it was “not a denomination distinct from the Orthodox Church but a schismatic group within the Metropolitan Church of Moldova and that any interference by the State to resolve the conflict would be contrary to the Moldovan Constitution” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 10). On top of this, members of the Church of Bessarabia were continually harassed, intimidated, assaulted, and prevented from worshiping or conducting services by authorities. As a result, the institution and individual members applied to the ECHR to hear their case on the grounds that it was breaching the freedom of religion as defined by Article 9 of the European Convention on Human Rights. In their assessment, the court sided with the applicants, noting that “refusing to recognise the applicant Church…amounted to forbidding it to operate, both as a liturgical body and as an association” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 24), indicating that religious communities are akin to associations, which are also protected under the Convention. As a result, the Court ruled that the Moldovan government had violated the right to freedom of expression, and added that the regime’s “refusal to recognise, coupled with the authorities’ stubborn persistence in holding to the view that the applicants could practice their religion within the Metropolitan Church of Moldova, infringed their freedom of association, contrary to Article 11 of the Convention” (Metropolitan Church of Bessarabia and Others v. Moldova 2001, 35). The ruling, then, exemplifies how associations can be religious in nature, and religions can act as associations, meaning that the protection of religion is critical to upholding freedom of association, and vice versa. References International Commission of Jurists. “Chapter four: Freedom of Assembly, Association, and Expression.” Accessed July 5, 2023. https://www.icj.org/sogi-casebook-introduction/chapter-four-freedom-of-assembly-association-and-expression/ Lopez Lone et al. v. Honduras. Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 30 ¶ 14-18, 52, 55, 57 (Oct. 6, 2015). https://www.corteidh.or.cr/docs/casos/articulos/seriec_302_ing.pdf Metropolitan Church of Bessarabia and Others v. Moldova, Application no. 45701/99, ECtHR of 2001. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59985%22]} Roberts v. United States Jaycees, 468 U.S. 609 (1984). https://tile.loc.gov/storage-services/service/ll/usrep/usrep468/usrep468609/usrep468609.pdf Williams v. Zimbabwe, African Comm. Hum. & Peoples’ Rights, Comm. No. 446/13 (February 25, 2021) https://rfkhr.imgix.net/asset/WOZA-Case-_-ACHPR-Full-Decision-compressed-2.pdf
Freedom of Expression		The principles of federalism play an interesting role in the manner in which the right to freedom of expression is exercised. Historically, the founding fathers were divided on whether there should even be a bill of rights; the Constitutional Convention of 1787 did not include an explication of rights in the writing of the Constitution (Hail, 2020). The Bill of Rights was written as an afterthought, and as political scientist James Burnham observed, “ ‘These rights, in short, are limits, not powers’ (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights” (Hail, 2020). Eventually, with the growth of the Union over the next 200 years, state constitutions started to include explications of the protected rights within their states, and as a result, some states are more protective over individual rights than the federal government itself: “For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.” (Hail, 2020). Federalism scholar Daniel J. Elazar observed that the states participate in policy experimentation and also provide more legal protection in addressing the unique and specific local/regional needs (Hail, 2020). However, in terms of actual exercise of the freedom of expression in particular, and related conflicting law between that of state and federal, “Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.” (Winkler 187, 2009). The federal government holds more power regarding cases involving freedom of expression, often bending both federal and state law to its will, oftentimes going out of its way to justify federal laws while heavily scrutinizing already narrow state laws. In the 1999 case of United States v. McCorkle, a federal court declined to identify the federal government’s reasoning for compelling secrecy regarding an order sealing transcripts of in camera proceedings sought by a newspaper. Another court deemed that the newspaper who was seeking access to the transcripts had failed at its job to offer effective alternatives to complete closure, “yet, under strict scrutiny the burden of showing no less-restrictive alternatives belongs to the government, not the challenger. Moreover, the newspaper had no information about what the subject of the bench conferences was and thus could not reasonably be expected to offer suitable alternatives to closure” (Winkler 172, 2009). This case saw federal right-of-access restrictions upheld solely because courts supposedly did not follow the traditional requirements of the strict scrutiny standard. Another case, contrastingly, shows the federal courts doing everything they could to invalidate the state restrictions. In the 1993 case of Lind v. Grimmer, a federal court “invalidated the application of a state law denying media access to pending complaints filed with the state campaign-finance spending commission. The court reasoned that the government interest in encouraging people to run for office was not protected by the restriction because complainants and others remained free to air their charges informally to the public. Yet, the same could be said about any restriction on the right of access” (Winkler 172-173, 2009). Since the 1965 case of Bond v. Floyd, legislators, like any other citizen, are protected under the free expression embodied in the First Amendment. After being elected to the Georgia House of Representatives, Julian Bond, who was an African-American, was refused his seat due to anti-Vietnam war statements he made. Some House members challenged that his statements aided the US’s enemies and violated his mandatory oath to support the Constitution and therefore, he was not permitted to a seat in the House (Hudson Jr., 2009). The Court ruled in favor of Bond due to his fundamental rights to freedom of expression and speech because: “Free expression in the legislature not only serves the deliberative process and allows voters to choose their representatives according to their expressed beliefs and opinions, it also reinforces the constitutional safeguards of federalism and the separation of powers. As an expressive act that registers the will, preference, and opinion of a legislator, voting performs a unique communicative function. It expresses loyalty or dissension, agreement or abstention. It can also inform voters of a legislator's position on matters of public concern. Not only is legislative voting expressive, it is also representative and political, and therefore critical to the proper functioning of participatory democracy” (Scherr 257, 1991). From the provided evidence, federalism can serve to protect the right to freedom of expression, but oftentimes, it allows for the federal government to somewhat bully state courts into the decisions that best suit them at the time. References: Federalism, Michael W. Hail, The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro. Freedom and Federalism: The First Amendment’s Protection of Legislative Voting, Steven N. Scherr, 257, The Yale Law Journal, 1991 New Haven. Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo Free Speech Federalism, Adam Winkler, 172-173, 187, Michigan Law Review, 2009 Ann Arbor.
Freedom of Expression		Rights to privacy may in some cases conflict with the right to free expression. For instance, according to Duke University Law Professor George Christie, there are cases in Europe in which speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). However, Christie argues that this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie). As explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression. Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression. In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “"directed at inciting or producing imminent lawless action and is likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted. References: Christie, George. "Private: The Conflict between Freedom of Speech and Other Rights and Values." ACS Expert Forum (2011). https://www.acslaw.org/?post_type=acsblog&p=7987 "Freedom of Speech: Historical Background." Cornell Law School. Legal Information Institute. https://www.law.cornell.edu/constitution-conan/amendment-1/freedom-of-speech-historical-background Govindu, V. “CONTRADICTIONS IN FREEDOM OF SPEECH AND EXPRESSION.” The Indian Journal of Political Science 72, no. 3 (2011): 641–50.
Freedom of Expression		The freedom of expression is essential to the development and upholding of an individual’s inherent sense of self and personal dignity, and as a result, the protection of this right is necessary to the protection of society as a whole (Civic 118-119, 1997). After the court ruling of Whitney v. California, which deemed that the freedom of expression is not an absolute right, Justice Brandeis “declared free expression to be the means to attain the truth, and the truth to be at the foundation of liberty and happiness” (Civic 120, 1997).The fundamental nature of this right is protected in the Preambles of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, and both assert human dignity as the foundation for all other rights protected in the documents, further asserting that human dignity is the foundation of all human rights (Civic 134, 1997). A survey carried out by FindLaw in 2015 found that of the 1,000 American adults asked to participate, 30% believed their freedom of speech to be the right of upmost importance from the Bill of Rights. Although all given rights are important, and it can be dangerous to start ranking rights’ power and relevance, Stephanie Rahlfs, attorney-editor with FindLaw.com states “it's interesting to note that the Founding Fathers placed freedom of speech into the First Amendment as a cornerstone of the Bill of Rights” (FindLaw, 2015). As time has passed, The Supreme Court has even professed this freedom to be “the matrix, the indispensable condition of nearly every other form of freedom;” for example, this right is what allows for the fundamental right to vote, the right which powers democracy, to be constitutionally protected (ACLU 2020). Although the right to freedom of expression falls under a small category of rights with “preferred position,” (a concept which was inspired by Justice Oliver Wendell Holmes Jr.’s opinion in the 1919 case of Schenck v. United States, which ultimately recognized the hierarchal primacy of the First Amendment and the rights protected under it), the right has been tested many times throughout American history (Pacelle Jr.). For example, during times of compromised national security such as WWI, First Amendment rights have been significantly compromised, with some citizens having been censored, fined, and jailed: “It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets” (ACLU, 2020). From this example, we see that although freedom of expression ranks high on the list of protected rights, it does not outweigh the importance of the common good or the need for general societal peace. References: Americans Say Freedom of Speech is the Most Important Constitutional Right, According to FindLaw.com Survey for Law Day, May 1, PR Newswire Association LLC, 2015 New York. Freedom of Expression, American Civil Liberties Union, 2020 New York. The Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection Within All Nations and Across Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia.
Freedom of Expression		In 1919, Justice Holmes, in his dissent regarding the case of Abrams v. United States which saw the arrest of Russian immigrants convicted for handing out anti-war leaflets in New York City, stated that “the right to freedom of expression is at the very foundation of our constitutional theory. The expression of competing ideas in the marketplace of ideas is the best means of discovering the truth.” (Civic 119, 1997). Holmes advocated that the truth is at the “foundation of pursuit of the ultimate good, and pursuit of the ultimate good is the theoretical framework of the Constitution. Therefore, through free expression and the search for the truth, the ‘purpose’ of American liberty and democracy is realized” (Civic 120, 1997). Almost 20 years later, Justice Benjamin N. Cardozo wrote in the majority opinion of the 1937 case of Palko v. Connecticut (which questioned whether Palko’s second conviction of a crime violated the Fifth Amendment’s protection against double jeopardy) the first explicit hierarchal ordering of human rights (Pacelle Jr.). The verdict of this case caused to Cardozo write that “some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right” (Oyez 2020). Cardozo argued further that certain fundamental rights, including the rights to freedom of speech, religion, and press were the “very essence of a scheme of ordered liberty”(Pacelle Jr., 2020). The next year, Justice Harlan Fiske Stone argued in Footnote 4 of the majority opinion in United States v. Carolene Products that the Court should allow civil and individual rights to occupy a “preferred position” when dealing with economic disputes that also affect fundamental rights (Pacelle Jr., 2020). Ultimately, from these Supreme Court rulings, one can gather that freedom of expression is a fundamental right that “also underpins most other rights and allows them to flourish. The right to speak your mind freely on important issues in society, access information and hold the powers that be to account, plays a vital role in the healthy development process of any society” (Index on Censorship, 2013). As Amartya Sen writes in his book “Development as Freedom,” access to the freedom of expression is a necessity in the development process of a society and is a developmental goal of its own. The freedom is “both the primary end and the principal means of development” (Index on Censorship, 2013). References: Preferred Position Doctrine, Richard L. Pacelle Jr., The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro. The Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection Within All Nations and Across Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia. Why is access to freedom of expression important?, Index on Censorship, 2013 United Kingdom: https://www.indexoncensorship.org/2013/03/why-is-access-to-freedom-of-expression-important/#:~:text=Freedom%20of%20expression%20is%20a,development%20process%20of%20any%20society.
Freedom of Expression		Although the idea of freedom of expression, as a right distinct from other rights, was only elucidated in the mid-20th century, multiple theorists advocated for something closely resembling freedom of expression long before that, even if they did not use the term. From these sources we get a sense of what freedom of expression entails, and of its value as a foundation for so many of the other rights that citizens exercise in a democratic society. What seems less evident, however, is the rights that freedom of expression is itself founded on – and therefore, what rights one must have to be able to exercise it. Based on an analysis of the meaning of expression, those rights include freedom of speech and of the press, freedom of assembly, and freedom of religion. Freedom of expression was first explicitly guaranteed, or at least widely accepted for the first time, in the system of international law established in the aftermath of World War II. Article 19 of the 1948 Universal Declaration of Human Rights reads, “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Universal Declaration of Human Rights 1948, 5). The 1966 International Covenant on Civil and Political Rights similarly states that “everyone shall have the right to freedom of expression;” this consists of the “freedom to seek, receive and impart information and ideas of all kinds… orally, in writing or in print, in the form of art, or through any other media of his choice” (International Covenant on Civil and Political Rights 1966, 10). Long before this, though, ideas hinting at a right to hold and express opinions can be found in political literature. In 1644, after Parliament passed an ordinance requiring pre-publication review of any printed material by the government, English poet-philosopher John Milton protested by anonymously publishing the polemic Areopagitica, in which he wrote, “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties” (Milton 1644, 57). In 1789, James Madison wrote an early draft of the First Amendment which read, “the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…” (Read 2009). In his seminal 1859 treatise On Liberty, John Stuart Mill defended the freedom to express socially disfavored opinions: “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it” (Mill 1859, 19). United States Supreme Court Justice Louis Brandeis wrote in 1927: “[the Founding Fathers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile…that public discussion is a political duty, and that this should be a fundamental principle of the American government” (Whitney v. California 1927, 274). Ten years later, his colleague Justice Benjamin Cardozo wrote that the “freedom of thought, and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom” (Palko v. Connecticut 1937, 302). Together, these quotes imply a multi-pronged freedom of expression, which can be seen mirrored in the definitions (“seek, receive, impart”) given in the international statutes that guarantee this right today. Freedom of expression can thus be understood as comprised of the freedom to form opinions (and therefore the freedom to access the information required to do so), the freedom to proclaim those opinions, and the freedom to share and debate those opinions with one’s fellow citizens. They likewise give a sense of how crucial freedom of expression is to the functioning of democracy, and indeed to liberty itself; that it acts as a safeguard that protects all other rights. Therefore, to answer the question of what rights are needed for one to have freedom of expression, we can ask what rights are necessary for the realization of each of the above prongs. First and foremost, we can intuitively appreciate that freedom of speech and of the press are essential for the ability to form, declare, and discuss opinions. This double-barreled right is intimated in the aforementioned writings: Milton advocates the liberty to “utter,” and Madison and both Justices specifically refer to speech; the necessity of a concomitant freedom of the press is supported by Milton’s call for a liberty to know, and by Madison’s reference to the freedom to write and publish one’s views in a manner distinct from speech. Freedom of assembly (referenced by Brandeis) is similarly crucial for the practical ability to exercise the right to expression: a citizen cannot fully acquire information and form opinions based on it, or fully participate in debates about those opinions, without the freedom to interact with as many diverse voices as they possibly can. Finally, though not specifically mentioned above, freedom of religion is required as well. This is not only because one topic that many people wish to express the strongest of opinions about is religion, but because religious expression often encompasses actions as well as speech and writing, and thus would not be sufficiently protected without its own discrete supportive right. The most foundational body of law laying out these rights is the First Amendment of the United States Constitution, which has inspired language in the constitutions of countless other countries. Moreover, due to the uniquely American practice of judicial review, US Supreme Court cases can provide illustrative examples of how these rights are vital to the freedom of expression. In the early history of First Amendment jurisprudence, the Supreme Court proved amenable to claims that speech and the press could be restricted if there was a “clear and present danger” to national security or other critical national interests, as outlined in the 1919 case Schenck v. United States, and subsequently reinforced with Abrams v. United States that same year. Issued amid the nationalist fervor of World War I, both cases concerned people punished for distributing anti-war writings under the 1917 Espionage Act, which broadly criminalized interfering with the war effort or undermining public morale (Schenck v. United States 1919, Abrams v. United States 1919). Likewise in Whitney v. California (1927), the Court upheld a conviction under California’s “criminal syndicalism” law, which criminalized speech that advocated for social or political change by force, even if it was in general and imprecise terms. In that case, the convicted person had been a member of a Communist organization that broadly advocated revolution against the government, but insisted she had never personally called for or supported violence (Whitney v. California 1927). The tide began to turn with Stromberg v. California (1931), where the Court struck down a state law banning the display of red flags, and notably incorporated the right to free speech against the states for the first time. The Court found that a “sign, symbol, or emblem” like a flag was protected speech under the First Amendment, and further wrote that free speech is a central component of the liberty protected by the Constitution: “It has been determined that the conception of liberty … embraces the right of free speech” (Stromberg v. California 1931, 283). The Court subsequently relied on that right to free speech to offer a passionate defense of the “opportunity for free political discussion,” which it called “essential to the security of the Republic” (Stromberg v. California 1931, 283). Still, it took decades for the overly permissive “clear and present danger” test for limits on free speech to be effectively superseded by a more protective standard of “imminent lawless action,” which the Court invoked in the 1969 case Brandenburg v. Ohio. Explicitly overturning Whitney, the Court wrote that Ohio’s criminal syndicalism statute punishes “mere advocacy” (which can be translated as political expression), and thus is unconstitutional based on the First Amendment freedoms of speech and the press (Brandenburg v. Ohio 1969, 395). Apart from national security/law and order, the predominant justification for government attempts to restrict speech and the press has tended to be some form of offense or social disruption caused by the expression. The Court invoked something like the freedom of expression when it ruled for a plaintiff arrested for wearing a jacket with the words “fuck the draft” in Cohen v. California (1971), finding that California could not exercise a “governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression,” and justified this statement under the First Amendment right to free speech (Cohen v. California 1971, 403). In Miller v. California (1973), the Court largely overturned obscenity laws restricting printed material (which had famously ensnared classics like Ulysses, Lady Chatterley’s Lover, and Tropic of Cancer due to sexual content), similarly deriving a wide-ranging right to express one’s views in writing from the First Amendment: “in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression” (Miller v. California 1973, 413). Freedom of assembly, as provided for in the First Amendment right to peaceably assemble, is another supportive right for freedom of expression. This right was notably litigated before the Supreme Court in the 1937 case De Jonge v. Oregon, in which the Court upheld the plaintiff’s right to speak at a peaceful meeting of the Communist Party (and incorporated this right to the states for the first time). In its ruling, the Court defended the importance of “free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means” (De Jonge v. Oregon 1937, 299). Of this opportunity the Court said, “therein lies the security of the Republic, the very foundation of constitutional government” (De Jonge v. Oregon 1937, 299). The final right undergirding the freedom of expression is freedom of religion. Multiple rulings have found that the Free Exercise Clause of the First Amendment imposes a high standard for restrictions on religious acts. For example, in Sherbert v. Verner (1963), the Court ruled in favor of a plaintiff who was denied unemployment benefits after losing her job for refusing to work on Saturdays on account of her Seventh-Day Adventist faith. The Court’s opinion indicated that a right to expression stems from the First Amendment right to free exercise of religion: “the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression;” therefore, to “condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith” is impermissible because it “effectively penalizes the free exercise of her constitutional liberties” (Sherbert v. Verner 1963, 374). Subsequent rulings would similarly protect religious life choices and behaviors on the grounds of a Free Exercise Clause right to religious expression, such as Wisconsin v. Yoder (1972), where the Court found that Wisconsin could not require parents to send their children to school past eighth grade when it was contrary to their Amish beliefs (Wisconsin v. Yoder 1972). Likewise in Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah (1993), the Court overturned a city ordinance targeting ritual animal sacrifice by practitioners of the Caribbean religion Santeria (Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah 1993). In Roman Catholic Archdiocese of Brooklyn v. Cuomo (2020), concerning COVID-19 capacity restrictions on houses of worship, the Court found that even a temporary abridgement of the ability to attend religious services constitutes an “irreparable harm” to free exercise rights, and thus must meet the highest level of judicial scrutiny (Roman Catholic Archdiocese of Brooklyn v. Cuomo 2020, 5). Most recently, the Court made clear that the Free Exercise Clause protects religious expression in Kennedy v. Bremerton School District (2022), where it ruled in favor of a high school football coach’s practice of praying on the field after games: “The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts’” (Kennedy v. Bremerton School District 2022, 12). While a clearly delineated freedom of expression is relatively recent, these examples show how it has been identified decades and centuries prior, in a wide variety of situations. The rights of freedom of speech and the press, assembly, and religion have all been highlighted as essential to free expression. These rights are therefore crucial not just for themselves, but because of the right to expression that grows out of them, that being the groundwork without which any definition of a free society cannot exist. References: Abrams v. United States, 250 U.S. 616 (1919), Justia, https://supreme.justia.com/cases/federal/us/250/616/ (accessed June 9, 2023) Brandenburg v. Ohio, 395 U.S. 444 (1969), Justia, https://supreme.justia.com/cases/federal/us/395/444/ (accessed June 9, 2023) Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), Justia, https://supreme.justia.com/cases/federal/us/508/520/ (accessed June 9, 2023) Cohen v. California, 403 U.S. 15 (1971), Justia, https://supreme.justia.com/cases/federal/us/403/15/ (accessed June 9, 2023) De Jonge v. Oregon, 299 U.S. 353 (1937), Justia, https://supreme.justia.com/cases/federal/us/299/353/ (accessed June 9, 2023) International Covenant on Civil and Political Rights, 1966, UN Office of the High Commissioner of Human Rights, https://www.ohchr.org/sites/default/files/ccpr.pdf Kennedy v. Bremerton School District, 597 U.S. ___ (2022), Justia, https://supreme.justia.com/cases/federal/us/597/21-418/#:~:text=Justia%20Summary&text=The%20Constitution%20neither%20mandates%20nor,it%20allows%20comparable%20secular%20speech (accessed June 9, 2023) Mill, John Stuart. 1859. On Liberty. Kitchener, Ontario, Canada: Batoche Books Limited, https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf Miller v. California, 413 U.S. 15 (1973), Justia, https://supreme.justia.com/cases/federal/us/413/15/ (accessed June 9, 2023) Milton, John. 1644. Areopagitica. Courtesy of the Online Library of Liberty, Liberty Fund, Inc., 2006, http://files.libertyfund.org/files/103/1224_Bk.pdf Palko v. Connecticut, 302 U.S. 319 (1937), Justia, https://supreme.justia.com/cases/federal/us/302/319/ (accessed June 9, 2023) Read, James. 2009. “James Madison.” The First Amendment Encyclopedia, Free Speech Center, Middle Tennessee State University, https://www.mtsu.edu/first-amendment/article/1220/james-madison#:~:text=%22The%20people%20shall%20not%20be,of%20liberty%2C%20shall%20be%20inviolable Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020), Justia, https://supreme.justia.com/cases/federal/us/592/20a87/#:~:text=Justia%20Summary&text=In%20challenges%20under%20the%20Free,requirement%20of%20neutrality%20to%20religion (accessed June 9, 2023) Schenck v. United States, 249 U.S. 47 (1919), Justia, https://supreme.justia.com/cases/federal/us/249/47/ (accessed June 9, 2023) Sherbert v. Verner, 374 U.S. 398 (1963), Justia, https://supreme.justia.com/cases/federal/us/374/398/ (accessed June 9, 2023) Stromberg v. California, 283 U.S. 359 (1931), Justia, https://supreme.justia.com/cases/federal/us/283/359/ (accessed June 9, 2023) Universal Declaration of Human Rights, 1948, United Nations, https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf Whitney v. California, 274 U.S. 357 (1927), Justia, https://supreme.justia.com/cases/federal/us/274/357/ (accessed June 9, 2023) Wisconsin v. Yoder, 406 U.S. 205 (1972), Justia, https://supreme.justia.com/cases/federal/us/406/205/ (accessed June 9, 2023)
Freedom of Religion		When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on 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” (Donald and Howard, 2015) All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. The right to freedom of religion falls well under the category to the right to freedom of conscience. And within this category, the right against religious discrimination is a distinct and complimentary right to freedom of religion: “Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies” (Norton and Khaitan 1125, 2019). One example regarding the right to non-discrimination and freedom of conscience working in tandem with the freedom of religion is the 2013 case of Eweida and Others v UK. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The workings of freedom of religion and the expression of said religion as well as conscientious objection work in tandem to support the right to freedom of religion. REFERENCES: Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London. Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York.
Freedom of Religion		In regards to gay marriage and religious freedom, two often interconnected topics, federalism is particularly apparent. Furthermore, many conservatives argue that states should be able to use religious rights in deciding whether or not gay marriage is legal. Robert A. Levy of the Cato Institute explains how technically, this position is legally valid, as “Clearly, federalism allows states to decide whether to recognize both same-sex and conventional marriages, or assign a different label, or privatize marriage altogether.” In this way, Levy emphasizes that due to federalism, depending on the region of the country, religious rights may be used to justify denying gay couples the ability to marry. Though, ultimately Levy questions the realistic strengths of federalism, asserting that the Constitution’s limits on discrimination outweigh the powers allocated to the states by federalism. Thus, according to Levy, federalism does not allow for states to exercise religious rights in a way that permits them to discriminate against LGBTQ+ individuals. Following this logic, federalism can be viewed to weaken the exercise of religious freedom. Additionally, states’ varying approaches to school prayer demonstrate how religious rights are subject to federalism. Although federal law prohibits prayer in public schools, upholding it to be a violation of the establishment clause, certain school districts have acted to protect school prayer. For example, nearly forty years after Engel v. Vitale and Abington School District v. Schempp, which struck down on school prayer, Santa Fe Independent School District v. Doe proved school prayer was still alive in certain states, as the case presented a situation of student-led prayer prior to high school football games. Demonstrated by Santa Fe, while federal law may prohibit school-mandated prayer, certain states may permit public school districts to contradict these laws with student lead prayer. Furthermore, depending on the state, the degree of secularism within public schools may differ. This emphasizes how federalism can bolster religious rights, as state’s rights may permit them to evoke certain religious practices misaligned with federal law. Lastly, state constitutions additionally demonstrate how federalism affects religious freedom. Noted by Christopher Hammons, numerous states invoke religion in their constitutions, asserting God to be “the foundation of order, liberty, and good government.” (226) The emphasis on god and direct religious references within certain state’s constitutions demonstrate how federalism, which provides states with specific liberties, allows for a varying image of religious freedom throughout the United States. REFERENCES: Christopher Hammons, State Constitutions, Religious Protection, and Federalism, 7 U. ST. THOMAS J.L. & PUB. POL'Y 226 (2013) Robert A. Levy, Marriage equality: religious freedom, federalism, and judicial activism, SCOTUSblog (Aug. 15, 2011, 4:32 PM), https://www.scotusblog.com/2011/08/marriage-equality-religious-freedom-federalism-and-judicial-activism/
Freedom of Religion		The freedom of religion possess two main components: “The first is the right to freedom of thought, conscience and religion, which means the right to hold or to change one’s religion or belief and which cannot be restricted under any circumstances. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others” (Donald and Howard 2, 2015). The practice of freedom of religion often conflicts with several other guaranteed freedoms due to its intersectional nature, and can therefore, legally be restricted when it encroaches upon other fundamental and guaranteed human rights. In 2015, when the US Supreme Court deemed same-sex marriage constitutional, religious freedom cases flooded state legislatures and courthouses, many of which were seeking exceptions to anti-LGBTQIA+ legislature under the basis of religious beliefs (Russell-Kraft, 2017). Some of these cases, including the previous 2013 case of Elane Photography v. Willock, represent the power of the freedom of expression, the freedom to be married, and the right to not be discriminated against, to undermine certain instances of the practice of the freedom of religion. This case was between two women who sought to hire photography company Elane Photography for their wedding ceremony and the named photography company who refused to provide services due to religious reasons. The case eventually was ruled in favor of the same-sex couple citing that the state of New Mexico prohibited any discrimination on the basis of sexual orientation, and that the claims of the photographer for her freedom of religion and speech were not protected in this case due to the (Russell-Kraft, 2017). The Constitution does indeed “have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up” (Russell-Kraft, 2017). When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on 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” (Donald and Howard, 2015) All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. One example regarding the right to non-discrimination and freedom of conscience favoring the rights of freedom of religion is the 2013 case of Eweida and Others v UK. The outcome of this case saw a contrary ruling to that of the Elane Photography v. Willock case. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed that the freedom to not to be discriminated against on the ground of sexual orientation is, in fact, protected under the Convention on human rights and that difference in treatment requires significant and legal justification and legitimate reasoning for doing so; however, in this case, the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The two opposing cases demonstrate the flexibility and conflicting natures of fundamental rights such as that of conscience and non-discrimination both for and against the practice of freedom of religion. The ECtHR recognizes further the conflicting rights of people to teach others about their religion or belief in contrast with the right of other people to be free from interference with their own freedom of religion or belief (which encompasses their right to be free from religion or belief): “For example, the European Centre for Law and Justice has argued within the Council of Europe for a ‘general provision reaffirming the fundamental right to freedom of religious opinion’ and argues that the concept of hate speech should ‘never end in a limitation of free speech’ (emphasis added). However, this is not entirely possible, seeing as international human rights laws draw limitations to ensure that conflicting rights in each particular case are proportionally balanced so that neither right in question is inappropriately sacrificed” (Donald and Howard 9, 2015). Lastly, even the freedom of assembly, which is guaranteed by Articles 20 of the Universal Declaration of Human Rights, 21 of the International Covenant on Civil and Political Rights and 11 of the European Convention on Human Rights comes into conflict with the freedom of religion. Some instances of peaceable assemblies such as LBGTQIA+ rallies have been prohibited and/or confined to venues out of public sight: “Where these events are not prohibited and do take place, there is often inadequate protection of participants by law enforcement agencies. This not only infringes the right of LGBTI people to freedom of expression and assembly, but it also makes them vulnerable to discrimination, abuse and violence… Despite these principles, claims based on religious conscience expressed in morally absolute terms persist” (Donald and Howard 10, 14, 2015). The rights of non-practicing individuals often conflict with the rights to freedom of religion. Furthermore, the concept of “freedom from religion” questions the strength of freedom of religion, as many believe that non-practicing individuals have an equally important right to not be subjected to religious practices (Sapir and Statman). Often this results in conflict between state power and religious rights, as the state is often expected to protect the rights of non-religious individuals. Gidon Sapir and Daniel Statman note how freedom from religion manifests itself, claiming “a law prohibiting the sale of goods on the sabbath would violate the would-be vendors freedom from religion.” Demonstrated by Sapir and Statman, religious rights may be contested when they conflict with the laws prescribed by the state upholding the rights of non-practicing individuals, for example that stores can operate on the sabbath day. In this way, the rights of non-religious individuals, as supported by the state, can act to diminish the power of religious rights. Additionally, conflicts of religious rights and the rights to free association have been notably observed throughout American jurisprudence. Most predominantly, this issue manifests itself in issues pertaining to First Amendment rights and civil rights. For example, the right for an individual to identify as LGBTQ+ has often been at odds with the Free Exercise Clause of the First Amendment. This was observed in Masterpiece Cakeshop v. Colorado Civil Rights Commision, when a Colorado bakery asserted their First Amendment rights to deny a gay couple service, arguing that “it would displease God to create cakes for same-sex marriages.” In response to the bakery’s actions, the couple sued, claiming that their rights to non-discrimination as protected by Colorado’s Anti-Discrimination Act had been violated. Although challenged by the couple’s discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission ultimately demonstrated that the right to free religious exercise has historically infringed upon individual’s rights to non-discrimination, as the Supreme Court ruled in favor of the bakery, claiming that under the Free Exercise Clause the bakery was permitted to deny service to the couple. Thus, while civil rights often create a legitimate conflict with religious rights, religious rights often take precedence. Though, as the issue of discrimination and religious rights has evolved, the strength of the First Amendment has weakened, reinforcing Civil Rights. Observed by the Bostock v. Clayton County decision, the Supreme Court now upholds that discrimination against LGBTQ+ individuals is a violation of Title VIII of the Civil Rights Act (Hollis-Brusky). This landmark decision curtails many of the arguments, such as those made by the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commision, which had previously bolstered the rights to religious freedom over the rights of LGBTQ+ individuals. Furthermore, unlike the justices concluded in Masterpiece Cakeshop v. Colorado Civil Rights Commision, Bostock’s support of the primacy of civil rights undermines the belief that the First Amendment can be used to legally protect individuals who discriminate against LGBTQ+ individuals. Thus, exhibited by the Bostock v. Clayton County case, freedom of religion, specifically the Free Exercise Clause, can be limited by civil rights to non-discrimination. REFERENCES: Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London. Hollis-Brusky, Amanda, “The Supreme Court Closed the Door on LGBTQ Discrimination. But it Opened a Window.” Monkey Cage at The Washington Post. June 16, 2020. Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York. Stephanie Russell-Kraft, The Clash Between Religious Freedom and Equality Law, John C. Danforth Center on Religion and Politics 2017 St. Louis. Sapir, Gidon, and Daniel Statman. “Why Freedom of Religion Does Not Include Freedom from Religion.” Law and philosophy 24, no. 5 (2005): 467–508.
Freedom of Religion		Freedom of religion often conflicts with other human rights. Specifically in contemporary times, other fundamental rights are often prioritized over religious rights. In particular, this is observed with LGBTQ+ rights. Explained by Dr Alice Donald and Erica Howard of Middlesex University, the rights to religious freedom and anti-discrimination are both globally upheld as fundamental rights. Though, Donald and Howard argue, ultimately LGBTQ+ individuals’ rights to non-discrimination hold precedence over religious rights. Explaining how religious freedom is enshrined in numerous human rights treaties, Donald and Howard do not shy from acknowledging the importance of freedom of religion. Though, later explaining its intersectionality with anti-discrimination rights, which they further assert to be a fundamental human right, Donald and Howard ultimately uphold the importance and prioritization of LGBTQ+ rights. In this way, Donald and Howard diminish the dominance of freedom of religion within the hierarchy of fundamental rights. Donald and Howard assert, “As mentioned, the right to manifest one’s religion or belief can be restricted if this is necessary for the protection of public safety, public order, health or morals or the rights of others. The latter includes the right of others not to be discriminated against.” Thus, as explained by Donald and Howard, the right to anti-discrimination places the right to free religious exercise at a lower position within the hierarchy of rights. Though, recent United States court cases have countered Donald and Howard’s positions, denoting a higher status to freedom of religion. Furthermore, within American jurisprudence, freedom of religion holds a particularly higher position in the hierarchy of rights. This was most notably observed in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the court defended a baker’s denial of services to a gay couple on the grounds of religion. Upholding the ability of the baker to discriminate against the gay couple, the court asserted the dominance of religious rights over anti-discrimination laws. Noted by Justice Gorsuch, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.” Through this, the court demonstrated that religious rights hold a principal position above other fundamental rights within the United States. REFERENCES: Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Freedom of Religion		Explained by Donald and Howard, freedom of religion is upheld by all major human right treaties. Demonstrated by this, freedom of religion is prioritized within international human rights law. Article 18 of the Universal Declaration of Human Rights, Article 18(1) of the International Covenant on Civil and Political Rights and Article 9(1) of the European Convention for the Protection of Human rights and Fundamental Freedoms all protect individuals’ freedom of religion, which includes “freedom of thought, conscience, and religion.” Present in each of these major treaties, freedom of religion is observed to be highly respected and prioritized by the United Nations. Additionally, freedom of religion is enshrined in most constitutions, demonstrating its high status. For example, only 43 countries, 20% of all nations, assert a state religion in their constitutions, denying religious freedom. As the majority of countries do not uphold a state religion, they allow for degrees of religious freedom. Observed by this trend among the majority of countries, there is a general global consensus that freedom of religion is a highly regarded fundamental right. REFERENCES: Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Freedom of the Press		The first right that is critical to the exercise of freedom of the press is the right to free speech and expression. The Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (United Nations 1948) . Without the right to free speech and expression, the press would be very limited. This leads to another right which is critical to the exercise of freedom of the press which is the right to criticize the government. Before the American Revolution, the government did not allow freedom of the press because they were fearful of the spread of unfavorable information. The first American newspaper was published in Boston in 1690 called, Publick Occurrences, Both Foreign and Domestick. The British government banned this publication because it was critical (Kahane 1976, 203). Years later in 1773, Hamilton helped to establish the principle that libel could not be punished unless it was false information. This meant that critiques of the government could be published, so long as that information was true (Kahane 1976, 205). Hence, the ability to criticize the government became recognized as necessary for the realization of freedom of the press. A similar principle was later upheld within the case of New York Times Company vs. Sullivan in 1964 (New York Times Company v. Sullivan). In 1960, the New York Times printed a newspaper with a civil-rights fundraising editorial advertisement titled, “Heed Their Rising Voices.” The advertisement was opposed to the way Alabama law enforcement had treated Rev. Martin Luther King Jr.. L.B. Sullivan filed a lawsuit against the New York Times on the basis that there were mistakes in the newspaper that called his reputation into question because he was a supervisor of the Alabama local police. Originally, a jury awarded him $500,000 in damages. However, the Supreme Court later reversed this decision and dismissed the damage award. The Court established the “actual malice” test which made it so public officials could only receive damages against libel in cases where the libel was stated “with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Company v. Sullivan). In the case of New York Times Company vs. Sullivan, the publication did not meet the standards of the actual malice test. According to Justice William J. Brennan Jr. and the majority, “debate on public issues should be uninhibited, robust and wide-open” (New York Times Company v. Sullivan). The majority implied that mistakes within publication would happen within any democratic society, and that debate and criticism of government affairs would be necessary for a truly free press. Another right that is critical to the exercise of freedom of the press is the right of the public to receive information. Between 1964 and 1968, the modern conception of freedom of the press changed. Free press began to not only mean the ability to publish as one pleases, but also that citizens have a right to receive information about the government in order to promote democracy. This would act as a check on the power of officials. With this, the extent to which freedom of the press could be protected expanded (Coyle 2017) . In 1996, the Federal Freedom of Information Act granted citizens the right to access many federal records. There are exceptions and limitations to this access, such as for privacy concerns, but in general, the right to know is upheld (Emerson 1979, 351). References: Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360 Kahane, Dennis S. “Colonial Origins of Our Free Press.” American Bar Association journal 62, no. 2 (1976): 202–206. New York Times Co. v. Sullivan, 376 U.S. 254 (1964): https://www.oyez.org/cases/1963/39
Freedom of the Press		A fundamental right that tends to conflict with freedom of the press is the right to privacy, which includes the protection of reputation. Two common conflicts between freedom of the press and the right to privacy are that between the right to publish and privacy and that between the right of the press to obtain information and the right to privacy. Beginning with the conflict between the right to publish and privacy, the issues concern the disclosure of embarrassing factual information about a person and the publishing of information that falsely displays a person to the public (Emerson 1979, 332). Historically, in cases where privacy law is applicable, the courts have tended to balance the importance of the publication for news purposes with the extent of the invasion of privacy. For instance, if the publication is not thought to be newsworthy or necessary, but most people would view it as offensive, the court would allow a claim to privacy. Although, the same claim to privacy may not stand in a case in which the publication is considered newsworthy. Similarly, in defamation cases, courts consider the extent to which reputation is harmed, and therefore courts may be more likely to protect the reputation of a public figure over that of someone more private (Emerson 1979, 333). A specific case involving the conflict between the right to publish and privacy is Time Inc. v. Hill which took place in 1967 (Time, Inc. v. Hill 1967) . Hill and his family were held hostage in their home in 1952, and upon being released unharmed, they moved homes and requested limited publicity about what took place. Later, a novel came out about a similar situation which was also made into a play. Life magazine published an article about the play suggesting that it was a depiction of what happened to Hill’s family, even though the play reflected various incidents. The family sued for damages on the grounds that Life had knowingly presented false information about the Hill incident. Life suggested that the article was of public interest and was not published with malicious intent. The court determined that the Life article was not intended to be a source of news, but was rather distributed for advertising purposes. Subsequently, the family received compensatory damages (Time, Inc. v. Hill 1967) . Another specific example is Cox Broadcasting Corporation v. Cohn which took place in 1975 (Cox Broadcasting Corporation v. Cohn 1975) . Cohn was the father of a seventeen year old girl who had been raped and killed in Georgia. Cox Broadcasting had obtained the girl’s name from public records and broadcasted the name during a news report. According to a Georgia privacy statute, names and identities of rape victims cannot be publicized. The court ultimately decided that the girl’s name was not a matter of public interest, and hence sided with Cohn, that the incident was an invasion of privacy (Cox Broadcasting Corporation v. Cohn 1975) . From these two cases, it is clear that at times, the right to privacy can limit the First Amendment right to freedom of the press, especially in cases presenting information in a false light. The second main conflict is that between the right to privacy and the right to obtain information. The press has a right to obtain information voluntarily from private sources, however, it does not have the right to compel such information. The press is generally restricted by laws against wiretapping, trespass, theft, etc. In terms of receiving information from government sources, the press can claim the constitutional right to know. The right to know is used for the purpose of informing and transmitting information to the public, especially when the government is barring such communication (Emerson 1979, 333). There have however been cases in which the right of the press to obtain information has been limited for privacy concerns. For instance, in Pell v. Procunier journalists were prevented from interviewing prison inmates (Pell v. Procunier 1974) . Similar to the conflict between the right to publish and privacy, in many cases involving the right of the press to obtain information, the court attempts to balance the public’s right to know with privacy concerns. In the case of Pell v. Procunier, interviewing the inmates would not have provided the public with important information regarding the conditions of the prisons, and therefore the privacy of the inmates was upheld (Pell v. Procunier 1974) . As of 1996, the Federal Freedom of Information Act was passed which gives public access to many federal records. However, there are nine exemptions to the Act that restrict public access to certain health and medical records, documents for the purpose of law enforcement, trade secrets or classified documents, among others. These exemptions are commonly referred to in right to know cases. Additionally, the Government in Sunshine Act of 1976 ensures that federal agency meetings are open to the public. An exception to this act is made in cases where the meetings contain, “information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.” The phrase, “clearly unwarranted invasion of personal privacy” has been broadly interpreted. Overall, the conflicts surrounding freedom of the press and privacy lack consistent legal procedure (Emerson 1979, 351). References: Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975): https://www.oyez.org/search/Cox%20Broadcasting%20Corporation%20v.%20Cohn Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360 Pell v. Procunier, 417 U.S. 817 (1974): https://www.oyez.org/cases/1973/73-918 Time, Inc. v. Hill, 385 U.S. 374 (1967): https://www.oyez.org/cases/1965/22
Freedom of the Press		The right to freedom of the press is commonly balanced against other rights and concerns, such as the right to privacy/ reputation and national security concerns. Freedom of the press is not inherently viewed to be above or higher than the right to privacy and potential security concerns, but rather the importance of freedom of the press is considered on a case by case basis, in comparison with the degree of other concerns. In the case of the right to privacy, free press can lead to an invasion of privacy in terms of the right of the public and the government to receive information, and can also lead to defamation especially in the case of false press or press being presented in a false light. When privacy law is applicable, historically, the courts try to assess how newsworthy and important the publication or information is for the public. The right to privacy often falls higher in the hierarchy of rights when the publication is not obviously important or newsworthy, whereas when the publication is very important for news purposes, the right to freedom of the press tends to be perceived as above the right to privacy. Additionally, in defamation cases, the degree to which reputation is harmed is considered by the courts. The courts may be more likely to uphold the right to reputation when a public figure is involved, and the cost to reputation is greater (Emerson 1979, 333). Another important factor is national security concerns; a tricky issue in terms of freedom of the press. There has been disagreement over what necessitates or makes permissible prior restraint on the press due to national security concerns. One example includes the case of New York Times Company vs. United States in 1971 (New York Times Company v. United States). In 1967, Robert McNamara, the Secretary of Defense, conducted a government study about America’s involvement in Vietnam. The work was compiled in 7,000 pages, and only 15 copies were printed. The work revealed that the government had not been transparent with the American people about its engagement with Vietnam. The study was considered classified. Daniel Ellsberg, who had helped with the project, later secretly made more copies of the study and distributed them to New York Times employees who referred to them as “Pentagon Papers.” The Nixon Administration barred further publication of the papers by means of a restraining order due to what they considered national security concerns. The New York Times appealed to the Supreme Court, and the Court ruled that the New York Times could continue to publish the Pentagon Papers. The Court decided that the Nixon Administration did not have enough justification for barring the publication of the Pentagon Papers. Justices took different stances on the issue at hand, with some believing prior restraint to never be justified and others believing it to be justified in certain circumstances, if a national security threat is clear and serious. These justices referred to the need for a “clear and present danger,” a precedent that established, in the case of Schenck vs. United States in 1919, that the First Amendment does not protect speech which creates a clear and present danger with which Congress is equipped to prevent, (Schenck v. United States). In New York Times Company v. United States, the majority ruled that the threat to national security by publishing the Pentagon Papers was too vague and unclear to impose restrictions on the press (New York Times Company v. United States). In certain circumstances, the Supreme Court has restricted First Amendment rights due to national security concerns. Typically, the Supreme Court attempts to find a balance between allowing freedom of the press and disallowing real security threats. References: Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360 New York Times Co. v. United States, 403 U.S. 713 (1971): https://www.oyez.org/cases/1970/1873 Schenck v. United States, 249 U.S. 47 (1919): https://www.oyez.org/cases/1900-1940/249us47
Freedom of the Press		Freedom of the press is extremely entrenched in international law, demonstrating its high status. In 1644, John Milton began the discussion about freedom of the press in response to the British government having to approve each publication before it went to print. Before this time, media wasn’t common, so refuting such regulation didn’t make sense (Cunningham). In 1766, Sweden passed the first known act requiring freedom of the press (Cunningham). It was intended to prevent the Swedish government from having to approve each publication, much like Milton was advocating for in Britain a century earlier (Cunningham). Ten years later, this right appeared in the Virginia Declaration of Rights in 1776 and was later brought by Virginian James Madison to the United States Bill of Rights (Freedom of the press, 2018) . Today, the protection of expression, media, and opinion is seen in conventions and declarations worldwide. The United Nations Universal Declaration of Human Rights (UDHR, 1948) has a wide reach and a broad expression of freedom as it is intended to apply to all people. Article 19 states “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UDHR, 1948) . Although the UDHR is neither a treaty nor legally binding, it has heavily influenced the development of international human rights law (Australian Human Rights Commission). The UN has also signed the International Covenant on Civil and Political Rights (ICCPR), a treaty that outlines rights that “derive from the inherent dignity of a person” ( 1966, Art. 19). Article 19 of the ICCPR ( 1966) outlines the freedom of expression, explicitly calling out the right to freely “seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Article 5 of the UN’s 1965 International Convention on the Elimination of Racial Discrimination explicitly expands this right to all people. Regional supranational organizations have also called out this right explicitly. In 1953, the Council of Europe (which contains more member states than the European Union) adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Article 10 of the ECHR ( 1950) says the right of free expression “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The European Union has also adopted the EU Charter of Fundamental Rights ( 2009) , which states in Article 11 “the freedom and pluralism of media shall be respected.” The African Union and Organization of American States (OAS) took similar steps in 1981 and 1969, respectively, with Article 9 of the African Charter on Human and People’s Rights and Article 13 of the American Convention on Human Rights, also called the Pact of San Jose. These freedoms were reaffirmed in 2001 with a joint statement between the UN, OAS, and Organization for Security and Co-operation in Europe (OSCE) and again by the OSCE in the 2003 Amsterdam Recommendations. At a state level, there are two extremes along a spectrum of free expression and press: Egypt and Norway. In Egypt, the 2014 constitution protects freedom of the press, though it is not protected in practice – government implemented censorship, imprisonment of journalists, and closures of media outlets are all prominent (Press freedom in Egypt, 2019) . Moreover, since 2015, journalists have been restricted to telling the “official” story rather than the real one (Egypt, 2021) . In Norway, there is a yearly report on the freedom of the press and expression, with the main complaints resulting from online government meetings, limiting press access (Norway, 2021) . The United States is between these two states, where freedom of the press is a highly respected right from the First Amendment of the Constitution and is fervently protected with limited exceptions usually resulting from Supreme Court decisions. Even so, today media freedom is limited due to distrust of “mainstream” sources and the loss of local news (United States, 2021) . Even local government recognizes the importance of this right, demonstrated by the 2019 passage of Queensland, Australia’s Human Rights Act. References: African Charter on Human and Peoples’ Rights. African Union. June 1, 1981. https://au.int/en/treaties/african-charter-human-and-peoples-rights American Convention on Human Rights. Organization of American States. Nov. 22, 1969. http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp Amsterdam Recommendations. Organization for Security and Co-operation in Europe. June 14, 2003. https://www.osce.org/files/f/documents/4/a/4 1903. pdf Australian Human Rights Commission. (n.d.) What is the Universal Declaration of Human Rights? https://humanrights.gov.au/our-work/what-universal-declaration-human-rights Cunningham. (n.d.) Brief history of press freedom, A. Britannica. Retrieved Sept. 3, 2021, from https://www.britannica.com/story/250-years-of-press-freedom Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter Egypt. ( 2021) . Reporters without Borders. Retrieved Sept. 8, 2021, from https://rsf.org/en/taxonomy/term/156 European Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf Freedom of the press. ( 2018, Aug. 21). History.com. Retrieved Sept. 3, 2021, from https://www.history.com/topics/united-states-constitution/freedom-of-the-press Human Rights Act. Queensland Legislative Assembly. Mar. 7, 2019. Retrieved Sept. 3, 2021, from https://www.legislation.qld.gov.au/view/html/inforce/current/act- 2019- 005 International Convention on the Elimination of All Forms of Racial Discrimination. United Nations General Assembly (UNGA). Dec. 21, 1965. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx Norway. ( 2021) . Reporters without Borders. Retrieved Sept. 8, 2021, from https://rsf.org/en/norway Tahir Institute for Middle East Policy. ( 2019, May 24). Press freedom in Egypt. https://timep.org/reports-briefings/timep-briefs/timep-brief-press-freedom-in-egypt/ United States. ( 2021) . Reporters without Borders. Retrieved Sept. 8, 2021, from https://rsf.org/en/united-states Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights U.S. Constitution. Amendment I. https://www.archives.gov/founding-docs/constitution-transcript
Freedom of the Press		Federalism as a system does not affect the way freedom of the press is interpreted, exercised, or applied.
Privacy Rights		“Privacy claims began gradually to be made independently of the trespass rules essential to property rights” (Heffernan, 2016, 102). The connection between these rights was recognized early on by Hixon (“the right to privacy…carried at least an implied right of property”) from Warren & Brandeis’s 1890 writing and by New York Court of Appeals judge John C. Grey (Hixon, 1987, 39). These rights are protected and exercised jointly in many constitutions and states, likely as privacy rights’ origins are rooted in property rights (Heffernan, 2016, 113). For instance, in Grenada Article 1(c) of the 1973 constitution protects both privacy and property (Constitute Project, Grenada 1973, reinst. 1991, rev. 1992) . Without the right to privacy, property rights would be lessened as it would only grant the right to ownership and, barring other protections, leave the property vulnerable to searches that may expose private information. When exercised in conjunction with property rights, privacy protections expand. This is explicit in the constitution of Saint Kitts and Nevis, which, in granting privacy rights, also prevents the deprivation of property without compensation (Constitute Project, Saint Kitts and Nevis 1983) . The right to privacy also convenes with the right to be forgotten in some states. This right is “the right of a past individual to be forgotten by people in the present” (Gadja, 2018, 205). The European Court of Justice (ECJ) ruled in 2014 that the right to privacy granted in Europe extended to past economic troubles and that this lack of privacy that caused the lawsuit was harming his ability to move past these troubles (Gadja, 2018, abstract). This ruling allowed the past troubles to be forgotten. Since this ruling in 2014, the United States courts have also alluded to the right to be forgotten as a sect of privacy rights, despite many believing at the time “this right [would not] cross the Atlantic” because of the First Amendment and others believing this right was present before the conventional right to privacy (Gadja, 2018, 206). While the US Supreme Court has not ruled on this right, lower courts have, as the California Supreme Court did in Briscoe v. Reader’s Digest Association in 1971. Briscoe opined that while the reports of previous crimes were newsworthy, the “identification of the actor in reports of long past crimes usually serve[d] little independent public purpose” other than curiosity given the rehabilitation that had taken place (Briscoe v. Reader’s Digest Association, 1971) . The plaintiff was allowed to have his past forgotten and the press was not allowed to take this right away, in this instance (Gadja, 2018, 212). However, this right is not internationally recognized, as other states such as Brazil have not supported this right (Library of Congress, 2021) . The right to be forgotten and property combine to create the right to one’s name and likeness which is especially important for those in the public eye (Mills, 2008, 220). It is accepted that people have a right to profit off of their own image, much like they have the right to profit off of their inventions or intellectual property (Mills, 2-008, 217-218). This right became clear in court cases soon after the 1890 publication of the Warren & Brandeis article, beginning with Robertson v. Rochester Folding Box Co. in 1902 (Hixon, 1987, 39). Beyond this, of course, are other sects of privacy law that remain pivotal in the protection of privacy rights as it is known today. References Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html Constitute Project. (2021). Grenada 1973, reinstated 1991, revised 1992. https://constituteproject.org/constitution/Grenada_1992?lang=en Constitute Project. (2021). Saint Kitts and Nevis 1983. https://constituteproject.org/constitution/St_Kitts_and_Nevis_1983?lang=en Gadja, A. (2018). Privacy, press, and the right to be forgotten in the United States. Washington Law Review 93(1), 201-264. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3144077 Heffernan, W.C. (2016). Privacy and the American Constitution: New rights through interpretation of an old text. Palgrave Macmillan. Hixon, R.F. (1987). Privacy in a public society: Human rights in conflict. Oxford University Press. Library of Congress. (2021, Mar. 15). Brazil: Federal supreme court decides right to be forgotten is not supported by constitution. https://www.loc.gov/item/global-legal-monitor/2021-03-15/brazil-federal-supreme-court-decides-right-to-be-forgotten-is-not-supported-by-constitution/ U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript
Privacy Rights		With federalism, there is often one state that leads the rest – in terms of privacy legislation, California leads the United States, and the German state Hessen led Germany and the European Union (Mills, 2008, 167; Petkova, 2016, 5, 4). Though the EU is not properly a federalist entity, federalism encouraged and promoted privacy as a fundamental right. Privacy rights began in Hessen, became federal law after German parliamentary action, and eventually became supranational as the EU passed encompassing privacy legislation in 1995 (Petkova, 2016, 4). Later iterations of the 1995 law led to the 2018 General Data Protection Regulation which has provisions that help regulate information privacy outside of EU borders, including in the United States. In the United States, federalism clarifies and further protects the right to privacy. This is important because the federal right is still based on Supreme Court opinions rather than explicit constitutional provisions or legislation. This lack of explicit language allows states to “provide leadership in the privacy area because of the constitutional options available” and drive for change (Mills, 2008, 162; Petkova, 2017, 24). As of 2008, ten states in the US (Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington) explicitly protect privacy in their constitutions (Mills, 2008, Appendix II). At least twenty states have passed privacy legislation (with some overlap between the ten with constitutional provisions, namely California). State privacy legislation focuses on data privacy, improving security measures for storing personal information, notifying individuals of security breaches, and enabling security alerts and/or freezes on credit reports (Mills, 2008, 167). Most states hoped their passage would signal the federal government to pass privacy legislation (Sabin, 2021) . Schwartz acknowledges that this legislation would be possible under the Commerce Clause, though the effects would depend on the text ( 2009, 922). Some scholars are wary of federal legislation as states have created a successful legal landscape based on experimentation and consequence, and federal legislation could disrupt the balance, create uncertainty, and be hard to amend (Bellia, 2009; Schwartz, 2009, 922-931). Federalism results in the lack of consistent privacy laws and rights. For instance, in Germany, every company needs to have a data protection officer. In the EU, the GDPR only requires public companies and certain private companies to have this position, while allowing all other private companies to opt-in to having this role (Petkova, 2017, 20). These different laws can alter privacy protection outcomes based on the jurisdiction in which the incident took place, especially if the rights are challenged in courts. This was the case in Florida’s Rolling v. State. Six college students were brutally murdered in Gainesville, Florida and their families hoped to prevent the press from releasing the photos of their bodies. Mills, who was asked to consult on the case, knew this would be a complex legal question as the Florida laws technically allowed for these records to be open to ensure police accountability, but he also knew the families would suffer severe harm were these photos to appear publicly. The Florida Supreme Court decided that the laws in place allowed for a compromise: the photos could be made available to the public by the records custodian upon a reasonable request provided there were restrictions on the copying and removal of the photos. Mills acknowledges that had the situation been occurred in another jurisdiction, the result would not have been the same and the photos likely would have been published (Mills, 2008, 247-251). References: Bellia, P.L. ( 2009) . Federalization of Information Privacy Law. Yale Law Journal 118(5), 868-900. https://www.jstor.org/stable/40389431 Mills, J.L. ( 2008) . Privacy: The lost right. Oxford University Press. Petkova, B. ( 2016) . The Safeguards of Privacy Federalism. Lewis & Clark Law Review 20(2). https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20The%20Safeguards%20of%20Privacy%20Federalsim_0.pdf Petkova, B. ( 2017) . Domesticating the “foreign” in making transatlantic data privacy law. International Journal of Constitutional Law 15(4), 1135- 1156) . https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20Domesticating%20the%20Foreign%20in%20Making.pdf Sabin, S. ( 2021, Apr. 27). States are moving on privacy bills. Morning Consult. https://morningconsult.com/ 2021/ 04/27/state-privacy-congress-priority-poll/ Schwartz, P.M. ( 2009) . Preemption and privacy. Yale Law Journal 118(5). https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5155&context=ylj
Privacy Rights		As Warren & Brandeis suggest in The Right to Privacy ( 1890) , the right to privacy directly conflicts with freedom of the press and speech. They wanted to protect people from writings beyond what defamation and publishing law covered. However, by proposing privacy protections that extended beyond these laws, they were inherently limiting what could be published. While this limitation was intentional, it was sure to be contentious as the First Amendment had been in place and protected for nearly 100 years and privacy rights were not prominent in any part of the world before this time. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (US Constitution, 1787, Amd. 1). The United States Supreme Court Cases offer plenty of examples of press and privacy rights conflicting, as “the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy” (Briscoe v. Reader’s Digest Association, Inc., 1971) . In some cases, privacy prevails, in others, the First Amendment. One of the cases was New York Times Company v. United States ( 1971) in which the New York Times published the Pentagon Papers but the Nixon administration argued that those should be kept private for national security concerns. In a 6-3 decision, the Court claimed that these were not to be considered private or secure and that the freedom of the press prevailed (NYT v. US, n.d.). Also in 1971, the Court ordered Branzburg to reveal his sources to a grand jury, despite the sources explicitly asking to not be revealed in Bransburg v. Hayes. Had secrecy been maintained, the press would have more rights than individuals during the grand jury (Branzburg v. Hayes, n.d.). Additionally, other cases such as Cox Broadcasting Corporation v. Cohn ( 1975) and Florida Star v. BJF ( 1989) held that freedom of the press overtakes privacy rights when the information is lawfully and publicly available. Cohen v. Cowles Media Company ( 1991) granted privacy to press informants if they had been promised confidentiality with promissory estoppel because the principle applies generally not just to the press (Cohen v. Cowles Media Company, n.d.). The contrast of Branzburg and Cohen shows how interpretive and circumstantial privacy rights are, while NYT v. NASA ( 1991) reveals that privacy rights are dependent on the media used to publish the information. In this instance, the US District Court for the District of Columbia allowed for transcripts of the Challenger astronauts’ last words to be published by the Times, but not the voice recordings (Mills, 2008, 36). Privacy rights also conflict with the right to information. The government recognized this right with the Freedom of Information Act in 1966 (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. The goal of having public records is to keep the government accountable, but this risks people’s privacy based on the nature of the information agencies collect (Mills, 2008, 50). However, nine exemptions and three exclusions in FOIA limit access to these records. The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA. The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d). Luckily, the exceptions and exemptions and the Privacy Act of 1974 considered the right of privacy and aimed to prevent the collision of these rights (Mills, 2008, 51). Privacy is also put aside when considering public security and health (Mills, 2008, 227). In the United States, this lack of priority became clear with the 1978 Foreign Intelligence Surveillance Act (FISA) and PATRIOT Act of 2001, which both expanded the ability of the FBI to have access to information on individuals that may or may not be a threat to the nation’s security. Many courts have upheld acts that place public security over personal privacy rights. To use an example less severe than terrorism, such is the case with the release of sex offenders (Mills, 2008, 224). While it hurts one’s reputation to have their name released in connection with this crime, it protects the greater community and their neighbors by alerting them. References: Branzburg v. Hayes. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1971/70-85 Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html Cohen v. Cowles Media Company. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1990/90-634 Cox Broadcasting Corporation v. Cohn. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1974/73-938 Florida Star v. B. J. F. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1988/87-329 Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx Mills, J.L. (2008). Privacy: The lost right. Oxford University Press. New York Times Company v. United States. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1970/1873 U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C
Privacy Rights		Joseph Wronka posits that the UDHR has tiers of rights, arranged by article. Article 1, human dignity, is the first and foremost right. Articles 2-21, which includes the right to privacy in Article 12, are civil and political rights, protecting people from their government. The right to speech, press, religion, and vote are also protected in these articles (Wronka, 1994; UDHR 1948) . Below these rights were the positive rights in which a government should provide “to ensure an existence worthy of human dignity” and solidarity rights (Wronka, 1994) . So, there is some recognition of a hierarchy between fundamental rights, but nothing has been written on the hierarchy among rights of the same tier. In practice, however, privacy seems to be overshadowed by other rights. On one hand, privacy rights can overtake rights such as the freedoms of speech and press. On the other hand, these rights have stifled privacy rights in many instances. Hixon suggests that privacy rights prevail in cases of information gathering but press and speech rights prevail during and after publishing (Hixon, 1987, 178). Mills suggests this difference in protection is due to the publication medium and the perceived benefit to the public (Mills, 2008, 36, 117). In the United States, some scholars have noted that “free-speech and free-press rights almost always trump information privacy rights,” suggesting there is a hierarchy within fundamental rights in at least one nation (Mills, 2008, 108). Hixon referred to privacy as “at best a correlative right,” and “sociological notion,” while Milles calls it a “precondition” (Hixon, 1987, 44, 45; Mills, 2008, 116). Press freedoms only require a “newsworthy” and “public interest” standard to be upheld, while privacy rights have had to be fought for continuously in courts. In this fight, the inadequacy of American privacy law has shown through, stemming from the lack of explicit protection in the Constitution (Hixon, 1987, 76). Public figures continuously have information published about them, protected under free speech, leaving them vulnerable to the news cycles (Hixon, 1987, 133). References: Hixon, R.F. ( 1987) . Privacy in a public society: Human rights in conflict. Oxford University Press. Mills, J.L. ( 2008) . Privacy: The lost right. Oxford University Press. Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights Wronka, J. ( 1994) . Human rights and social policy in the United States: An educational agenda for the 21st Century. Journal of Moral Education 23(3). https://doi.org/10. 1080/ 0305724940230304
Privacy Rights		The right to privacy is listed in many international treaties – the Universal Declaration of Human Rights ( 1948) , the European Convention for the Protection of Human Rights and Fundamental Freedoms ( 1950) , the International Covenant on Civil and Political Rights ( 1966) , International Covenant on the Protection of All Migrant Workers and Members of their Families ( 1990) , and Convention on the Rights of the Child ( 1989) . The consistency with which it is held as a fundamental right certainly suggests it’s high status. The consistency with which it is present in many national constitutions confirms this suggestion (see “What is the oldest written source in this country that mentions this right” above). References: Convention on the Rights of the Child. United Nations General Assembly (UNGA). Nov. 20, 1989. https://www.ohchr.org/en/professionalinterest/pages/crc.aspx European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx International Covenant on the Protection of All Migrant Workers and Members of Their Families. UNGA. Dec. 18, 1990. https://www.ohchr.org/Documents/ProfessionalInterest/cmw.pdf Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights
Voting Rights and Suffrage		Federalism is a system in which governing and law-making powers are shared or divided between federal authorities and regional entities, such as states. One of the policy areas heavily influenced by federalism is voting rights. The right to vote has undergone several changes in scope and implementation as a result of the ongoing ebb and flow between state and federal powers. The sections that follow will highlight major legislative and judicial events that affected- and continue to affect- voting rights in America as a result of federalism. Two important aspects of the relationship between federalism and voting rights are found in our Constitution. The first of these is Article I Section IV, which empowers state legislatures to set the parameters for their own elections. Because each state can have different electoral procedures and regulations, the exercise of voting rights is varied. It may be harder to exercise one’s right to vote, for example, if their state has stringent identification laws or restrictions on mail-in and absentee voting. As much as the federal government may want to protect voting rights universally, the federalist implications of Article I Section IV gives states the power to determine the scope and practice of suffrage during their elections. Another portion of the Constitution relevant to federalism is the section of Article VI commonly referred to as the Supremacy Clause. In contrast to the provision mentioned above, this clause empowers the federal government with a degree of control over the states. Specifically, the clause asserts that the laws of the federal government should be recognized as “the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” In relation to voting rights, the supremacy clause gives the federal government the authority to set national standards for suffrage, even if individual states have passed their own legislation. The Supremacy Clause is a facet of federalism unique to the United States. One of the most significant developments in American voting came as the federal government exercised this legislative supremacy by passing the Voting Rights Act of 1965. The VRA outlawed the discriminatory electoral procedures that had been adopted throughout the South following the Civil War. Most notably, its passage brought an end to the use of literacy tests to determine voter eligibility, which had long been a thinly veiled tool of racial discrimination and disenfranchisement. The VRA significantly altered the scope of American voting rights and remains an example of effectively leveraged federal supremacy. The 1965 Voting Rights Act and the changes that followed were thus an embodiment of federalism’s balancing of power. Another major development in voting rights affected by federalism came in 2013, with the Supreme Court’s landmark decision in Shelby County vs. Holder. Shelby County, Alabama had issued a challenge to Sections 4 and 5 of the Voting Rights Act which stated certain states with a history of racial discrimination had to receive federal preclearance in order to make changes to their voting laws and procedures. With a 5-4 decision, the Supreme Court ruled in favor of Shelby County, and deemed both sections 4 and 5 of the VRA unconstitutional. The fact that blatant discrimination in the form of literacy tests was no longer present meant that Congress lacked the authority to impose these VRA restrictions, and that doing so “violated the ‘basic principles’ of federalism” (Charles 2015, p. 113). Whereas the passage of the Voting Rights Act represented a victory for the authority of the federal government, the decision in Shelby County vs. Holder swung the pendulum back towards states’ rights. This fluctuation between state and federal authority is the true embodiment of federalism. Federalism’s impact on voting rights continues to develop and evolve today. As a response to alleged fraud in the 2020 presidential election, numerous state legislatures have advanced bills that would tighten regulations on voter ID, in addition to mail-in and absentee voting procedures. The modern battle over voting rights takes place within the arena of federalism, as different levels of government vie for authority over elections. In conclusion, federalism has a major impact on the exercise and application of voting rights in America. Federalism has played a consistent role in shaping the balance of power, from the writing of the Constitution, to the struggle for civil rights, to the congressional politics of today. In a piece for Texas Law Review, David Landau and his coauthors effectively summarize the function of federalism with relation to voting: “By separating and dispersing the functions of governance—the day-to-day work of governing—U.S. federalism provides some protection against authoritarianism. The decentralization of authority over elections offers one particularly dramatic example of this dynamic in action” (Landau et al. 2021, p.96). In other words, federalism remains a central component of American politics, and will continue to dictate voting rights and suffrage in future elections. References: Charles, Guy-Uriel, and Luis Fuentes-Rohwer. 2015. “Race, Federalism, and Voting Rights.” University of Chicago Legal Forum, January, 113–52. Landau, David, Hannah Wiseman, and Samuel Wiseman. 2021. “Federalism, Democracy, and the 2020 Election.” Texas Law Review 99 (February): 96–121. Sarbanes, John. 2021. For the People Act of 2021.
Voting Rights and Suffrage		Freedom of the press is extremely entrenched in international law, demonstrating its high status. In 1644, John Milton began the discussion about freedom of the press in response to the British government having to approve each publication before it went to print. Before this time, media wasn’t common, so refuting such regulation didn’t make sense (Cunningham). In 1766, Sweden passed the first known act requiring freedom of the press (Cunningham). It was intended to prevent the Swedish government from having to approve each publication, much like Milton was advocating for in Britain a century earlier (Cunningham). Ten years later, this right appeared in the Virginia Declaration of Rights in 1776 and was later brought by Virginian James Madison to the United States Bill of Rights (Freedom of the press, 2018) Today, the protection of expression, media, and opinion is seen in conventions and declarations worldwide. The United Nations Universal Declaration of Human Rights (UDHR, 1948) has a wide reach and a broad expression of freedom as it is intended to apply to all people. Article 19 states “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UDHR, 1948). Although the UDHR is neither a treaty nor legally binding, it has heavily influenced the development of international human rights law (Australian Human Rights Commission). The UN has also signed the International Covenant on Civil and Political Rights (ICCPR), a treaty that outlines rights that “derive from the inherent dignity of a person” (1966, Art. 19). Article 19 of the ICCPR (1966) outlines the freedom of expression, explicitly calling out the right to freely “seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Article 5 of the UN’s 1965 International Convention on the Elimination of Racial Discrimination explicitly expands this right to all people. Regional supranational organizations have also called out this right explicitly. In 1953, the Council of Europe (which contains more member states than the European Union) adopted the European Convention on Human Rights (ECHR). Article 10 of the ECHR (1950) says the right of free expression “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The European Union has also adopted the EU Charter of Fundamental Rights (2009), which states in Article 11 “the freedom and pluralism of media shall be respected.” The African Union and Organization of American States (OAS) took similar steps in 1981 and 1969, respectively, with Article 9 of the African Charter on Human and People’s Rights and Article 13 of the American Convention on Human Rights, also called the Pact of San Jose. These freedoms were reaffirmed in 2001 with a joint statement between the UN, OAS, and Organization for Security and Co-operation in Europe (OSCE) and again by the OSCE in the 2003 Amsterdam Recommendations. References: African Charter on Human and Peoples’ Rights. African Union. June 1, 1981. https://au.int/en/treaties/african-charter-human-and-peoples-rights American Convention on Human Rights. Organization of American States. Nov. 22, 1969. http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp Amsterdam Recommendations. Organization for Security and Co-operation in Europe. June 14, 2003. https://www.osce.org/files/f/documents/4/a/41903.pdf Australian Human Rights Commission. (n.d.) What is the Universal Declaration of Human Rights? https://humanrights.gov.au/our-work/what-universal-declaration-human-rights Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf Freedom of the press. (2018, Aug. 21). History.com. Retrieved Sept. 3, 2021, from https://www.history.com/topics/united-states-constitution/freedom-of-the-press International Convention on the Elimination of All Forms of Racial Discrimination. United Nations General Assembly (UNGA). Dec. 21, 1965. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights