Robbins: Can I cough in your grandmother’s face?
“Give me your tired, your poor, Your huddled masses yearning to breathe free…” — Emma Lazarus, New Colossus
Where do your rights end and mine begin? It is one of the most fundamental questions of civilized society, democracies in particular.
If we may define a democracy as a government “by the people,” one in which supreme power is vested in the people, isn’t, therefore, each of us one of “the people?” And doesn’t that mean our liberty is guided only by the beacon of each of our own lights?
While you ponder that a moment, ponder this as well: E pluribus unum. “Out of many, one.” It is more than a Latin catchphrase embossed on our coins. Instead, it is a traditional motto of the United States, appearing on the great seal of the nation and approved by an act of Congress in 1782. While its status as a national motto was for many years unofficial, E pluribus unum was still considered the de facto motto of the United States from its early history. In 1956, however, Congress passed an act replacing it with “In God We Trust” as the official motto. Yet its echo lingers and its chords run deep.
Our rights — though guaranteed by and under the Constitution — are not absolute. If you cogitate on it for a sec, it will occur to you that, after all, is what law is. The sine qua non of any law is to paint the chalk lines on the playing field. Law may be understood as a system of rules that are created and enforced through social or governmental institutions to regulate behavior. You may go this far but no further. If you step out of bounds, the whistle of the law will blow. At its core, law is always about how far your rights — when butted up against mine or against the buttress of society — may reach.
The right to free speech is central to our American democracy. The Constitution guarantees it. The First Amendment — which, by the way, is first, and by implication is, therefore, preeminent — provides that “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.”
At first blush this seems pretty clear; “Congress shall make no law …abridging the freedom of speech.” Doesn’t this mean that you or I or any citizen can say damn-well what we please anywhere, anytime, and under any circumstance?
Limits to freedom
Well hold on, pardner; no.
Although repeated so frequently it has become almost trite, the late great Supreme Court Justice Oliver Wendell Holmes, Jr. set the record straight. In Schenck v. the United States (a 1919 case where Schenck was charged with conspiracy to violate the Espionage Act of 1917), Holmes wrote that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” There are, in other words, limits even upon this most fundamental right.
Similarly, although a free press is fundamental to our democracy and the courts are loathe to impose restraints of any kind or nature, one can go only so far and then no further, boundaries that were shaped, in among other cases, the landmark 1964 case of New York Times v. Sullivan.
Gun rights advocates will tout that the right to bear arms, as protected by the Second Amendment, are — or perhaps should be — unfettered. But, um … no they’re not. One only needs to review the march of cases from Cruikshank to Miller to Heller to MacDonald and a host of others to see that “absolute” is almost never entirely unqualified.
Cuts both ways
But what about the right to breathe?
In our present world, what a sticky wicket that presents. Isn’t the right to breathe the most fundamental right of all, one without which life itself would be impossible?
Indeed. And that cuts both ways.
Think if you will for just a moment on the symbol we employ for justice. Think of Lady Liberty balancing her scales. It is an apt and enduring metaphor. Your rights may balance on the left scale and mine on the right. Your exhale falls on the left and my inhale on the right. My inspiration is no less sacred than your exhalation. And that is where the conundrum lies.
Are you entitled to breathe? Of course. Am I entitled to as well? Undoubtedly. But what if your breathing threatens mine? May society impose some reasonable restraint so that we may safely share the air we bring into our lungs? May the law say, “Hey, buddy, put a mask on it!?”
Most times, the balance is this. The law may impose upon an individual the least intrusive restraint necessary to protect the general welfare. May you cough in Grandma’s face? In a world aswirl with COVID-19 virus, likely not. That would be a toe across the chalk line of our collective liberties. And our rights, as a people, must, and do, at times outweigh those otherwise reserved to the individual.
Out of many, one.
Even if that means, sometimes, you’ve got to smack a damn mask on your gob.