On Moral Acceptability and Legal Permissibility
Freedom of speech is a legal right. Simply put, you have legal license to say almost anything (with some notable exceptions, including incitement to violence, libel, slander, child pornography, and perjury). However, legal authorization does not give you moral justification. If you have the right to commit action X, it does not necessarily mean action X is morally right. For example, suppose there is a line to receive crucial food and medical supplies at a natural disaster site. You, as a resident of the disaster area, are eligible to receive these supplies and therefore begin walking towards the line. You are not severely injured, nor are you particularly hungry, but you wouldn’t mind a free bite to eat. Nearby, there is an elderly lady, carrying two small children. Starving and bleeding from severe wounds, the children cry in her arms. Trembling under the weight of the children, the frail lady trudges towards the line. She arrives just after you, and slides into line behind you. Looking up at you with tear-filled eyes, she asks if you would be willing to trade places with her, so she could get food sooner. You are under no legal obligation to surrender your space in line. You are not legally required to let her stand in front of you. Instead, you have the right to remain in place. Nonetheless, many would argue that exercising such a right would be morally impermissible. In short, simply because you have the right to retain your place in line, does not mean it is morally justified to do so.
The same can be applied to free speech. You have the privilege to say almost anything, but that does not mean all legally permissible forms of speech are morally acceptable. So the question arises: how do we navigate these precarious scenarios wherein we have the legal right to say anything, but a moral pressure to say a particular something or perhaps to say nothing at all?
Here, we enter an interesting discussion of the purpose of rights and the purpose of morality. Why do rights exist? Generally speaking, there are two alternative views on the purpose of rights. One suggests that humans, due to their very nature, must have certain unalienable rights. Humans, for example, have the ability to communicate through language—this ability is integral to our identity as humans. This inherently implies a right to communicate through language (i.e. a right to free expression)—to rob someone of this right is to rob them of doing the very thing which makes them human. The state of being human necessitates this right. Similar arguments are made for freedom of belief, freedom of emotion, the right to pursue happiness, etc. To rob someone of their ability to do these things is to rob them of their very humanity. Essentially, we have certain actions/abilities which make us human—to acknowledge someone as a fellow human is to acknowledge their right to do these things.
The second view argues that no such unalienable human rights exist. Instead, rights are tools, designed to enable the optimal distribution of power. They are instruments that allow us to distribute and assign power in a way that maximizes societal satisfaction. That is why Presidents have the immunity-right (to borrow a term from Hohfeld) to exercise executive privilege, while others don’t. We understand that Presidents need to keep certain information confidential in order to maximize societal welfare; we also understand that ordinary citizens must sometimes be compelled to share information in order to preserve rule of law; we therefore afford Presidents the right to withhold information under executive privilege. This has nothing to do with their being as a human; the right to executive privilege is not an inherent component of what makes us human—otherwise, all humans would enjoy this right. Instead, it is simply a tool, designed to facilitate an optimal functioning of society. I personally support this second view of rights.
Now, we must ask, what is the purpose of morality? Why do morals exist? Why do we have concepts of right and wrong? Here, again the answer lies in social cohesion. We use moral teachings to promote a certain standard of behavior that is conducive to the optimal functioning of society. This is why morals vary so drastically, between societies and within societies over time. The behavioral needs of society changes—some situations call for human sacrifice, for subjugation to a ruler, for monogamy, for polygamy, for child labor, for movements against child labor, for limits on the number of offspring one may raise, for minimum quotas on the acceptable number of children, etc. Now, some may argue that innate universal moral inclinations exist; that all humans inherently feel morally disgusted by certain things. However, even so, why is this the case? Because we have evolved to feel this way! Why? Because these feelings of moral disgust are universally conducive to social existence. We, like prairie dogs, have evolved to become a social species and this inherently involves evolved ‘moral’ tendencies. So, why do morals exist? To facilitate the optimal functioning of society.
If both rights and morality exist to facilitate the optimal functioning of society, how can they warrant opposite actions? How can one have the right to do wrong? The answer is that one claim (either the moral imperative or the legal privilege) must be misguided. That is, if all rights are properly structured to facilitate optimal social cohesion, and all moral codes are similarly structured, they cannot lead one to opposite conclusions. Either the bill of rights or the moral code must be reformed. This is why freedom of speech is not absolute—we recognized that some degree of self-expression was necessary for a well-functioning democracy, but general moral sense also recognized that some forms of expression would undermine social cohesion (for example, libel, slander, child pornography, perjury, etc.). Consequently, we imposed legal limits on the right to self-expression, thus reforming the rights code in order to better match the moral code. Ultimately, then, the ideal society is one in which the rights code and the moral code are identical, and both point to the standard of behavior that maximizes societal satisfaction.
Hence, we return to the original question: how do we navigate these precarious scenarios wherein we have the legal right to say nothing, but a moral pressure to say a particular something? The answer, at least according to the above argument, is that either our rights structure or our moral structure is wrong. Either the legal right to remain silent is undermining social cohesion, since optimal social functioning demands that we say something. Or the moral imperative to say something is actually not the socially optimal procedure, since social satisfaction is predicated upon the privilege to say nothing. So, when confronted with scenarios in which rights contradict morality, the answer must be to reform one of those two systems. The secondary matter, which would require an inappropriate length of pages to explain, is which system warrants reforming.