Balkinization: On the Common Saying, "He Has the Right to Do That, But He's Not Right to Do It"

On the Common Saying, "He Has the Right to Do That, But He's Not Right to Do It"

Mark Tushnet

Preparing for what would otherwise be a very brief talk on the legal issues associated with the controversy over the location of an Islamic Center in New York, I've been puzzled by my own reaction to what has become a common trope in the "discussions." (The talk would be short because the legal issues are beyond simple. The planners of the Center complied with all applicable local land-use requirements and got all the permissions required at this point in the planning. Denying them permission to move forward, because they propose to build an Islamic Center rather than, for example, a clothing store, would plainly be a violation of their rights to free exercise of religion, and their statutory rights under the federal Religious Land Use and Institutionalized Persons Act as well.)

The trope is this: "They have the right to build the Center, but they shouldn't do it." Analytically, that's also obviously correct. The fact that someone has a legal right to do something doesn't mean that she has a moral right to do so, or -- more weakly -- doesn't mean that as a decent person respectful of her neighbors she should do so in the face of reasonable objections. (There are scores of movies and plays taking this as their theme.) And yet, I got a bit nervous as the trope emerged, and I think I've figured out why.

Consider a parallel situation: A speaker in a public place makes statements that many listeners find offensive, although others in the audience want to hear the speaker. The offended listeners boo, jeer, and shout throughout the speaker's comments, to the point where it's very hard for anyone to hear what the speaker is saying. Many people think that this sort of behavior -- which may be protected by principles of free expression, just as the speaker's right to speak is -- is somehow troubling. The label is "heckler's veto," and many people don't think that we ought to allow a heckler's veto. (As a matter of technical free speech law, the term "heckler's veto" refers to the government's response to heckling: The government can't take the existence of heckling as a reason for it -- the government -- stopping the speaker from speaking. As far as I know, there's relatively little well-reasoned law saying that the government may punish the hecklers in the context I've described, although there's some not-so-well-reasoned law to that effect.)

If you think that there's something troubling with heckling to the point of shouting down a speaker, then maybe you ought to think that there's something wrong with saying that the sponsors have the right to build the Center but but shouldn't do so. Saying that, it seems to me, is a genteel form of heckler's veto, at least if enough people say it (just as there's nothing particularly bothersome about a single heckler, but perhaps something troubling about a large enough group of hecklers).

I should add that "nervousness" and "it's troubling" are my own responses, and that, on reflection, I actually don't think that there's anything ultimately bothersome about heckling to the point of shouting down a speaker -- and so don't think, in the end, that there's anything ultimately bothersome about the trope I've described. But any readers who do think that there's something wrong with shouting down a speaker ought, I think, reflect on whether it's consistent to think that and to think that the sponsors of the Islamic Center shouldn't exercise their legal rights.

Posted 10:58 PM by Mark Tushnet [link]