Wronging Rights

IF YOU’RE NOT IN THE letters industry, you may be unaware of a local tempest-in-a-teapot that popped up here recently. Seems a bunch of seamy books, self-published, for the most part, but not exclusively, have been removed from public view — the aggregator claims temporarily, but with no assurance of the length of the temp involved. (Irish indie author David Gaughran posts.)

Much… well, some as been made of the contention that there is no right to free speech in the UK. Not true. The right exists, the state has merely chosen not to recognize it. We in the United States have what purports to be a constitutional guarantee, which guarantees seem by and large to be honored more in the breach. However, I contend, the defense of it does not go far enough.

You hear this all the time. I suspect the most frequent assertion of the mistake notions about rights comes from the political Right which says “There’s no right to abortion in the Constitution,” with the follow-on claim it therefor doesn’t exist. While I agree that abortion is, on balance, reprehensible — possibly even murder, albeit without a clear legal definition, not much more can be made of it — a right to access the procedure does exist. It must. At the same time, it must be made clear that the right to access a medical procedure (provided one possesses the wherewithal to compensate the providers) does not guarantee that said providers are obligated to — so to speak — provide it, whether compensated or not. “We don’t serve your kind in here,” is well within the most simple and primitive rights of the individual to assert and enforce. That some find it unaesthetic or inconvenient notwithstanding.

The right to freedom speech, expression, the press is free-standing and pre-exists any state. All a state can do is recognize or infringe upon it. And all an individual can do is recognize or infringe upon it.

And that last is where the crowd that says, “Private entities’ infringing upon freedom of speech is not censorship.” Bullshit. It most certainly is. And, it might be seen, such behavior from private individuals or corporations is MORE reprehensible than it may be from governments, as there never was any contemplation of granting private entities any let over the free expression of individuals. The right is free-standing and absolute. It inheres to the individual human being. NO actor may infringe. The right shall not be infringed — under law. (In a lawless state, an individual may do anything he can get away with; that’s the difference between anarchism and libertarianism. The latter acknowledges the possibility of a need for a state, however skeletal and minimal.)

The Constitution limits the state. As the 800lb gorilla of politics, the state must needs be set about with limits. It has too great a potential to damage fragile liberty. But that is not to say that the rights of the individual are not enforceable against infringing individuals or corporation.

Now, granted, there are private property rights and rights of free association — not to mention rights of commercial liberty — in possible conflict in the situation alluded to at the beginning of this post. A merchant has every right to choose what merchandise to stock. However, an entity — such as Amazon — which puts itself forward as the landlord (so to speak) of an open marketplace may be seen as operating a kind of a public accommodation. And, whatever your take on that principle, it is a recognized legal principle of our structure of civil rights.

Where we go from there, I do not know — or haven’t formed an opinion, yet — but it seems clear to me that Smiths, Kobo, Amazon, and the rest are engaged in censorship, are not blameless, and owe it to their suppliers, their customers, and the nation of Man at large to create a structure that meets the needs of everyone, even-handedly, not forcing offending materials on an unwilling public, nor allowing its access by the unprepared young, nor infringing on the freedom of expression of the authors using their marketplaces.

And most certainly, no one should respect the complaints of those who assert the right to infringe upon the rights of individuals for the sake of offense or convenience. Those deserve nothing but our collective (and individual) scorn.

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