Fall 1999 Human Rights Magazine

By Wilson A. Schooly and Robert M. O'Neil

We at Human Rights would like to thank Wilson A. Schooley and Robert M. O’Neil for their hard work and invaluable assistance as Special Editors of this fall issue on the conflict between individual and community rights.

Your answers may be as good as any. The questions are likely the most fundamental in our world. Certainly, the issue is central in our little body politic. When two compelling societal interests—a protected individual freedom and a cherished community norm—come in conflict, which prevails? How do we decide? Who decides?

Plainly, we cannot solve that riddle (penetrate that Hyrcanian wood) in these pages. Our system of laws, conceived with reconciliation of divergent individual and community rights in mind, still struggles with the complexities. But what we can, and must, do is fairly consider and discuss the opposing concerns, and continue ever to seek a point of balance between them, however ultimately imperfect. Otherwise, what will be between them is a collision point, a dangerous place of calumny and conflagration that serves neither side of the divide. "

Tis dangerous when the baser nature comes between the pass and fell incensed points of mighty opposites," said Hamlet (to his mother, as it happens).

The "mighty opposites" in our constitutional construct must each be accorded their due, discussed openly, and worked through in words as often and fairly and extensively as life allows, so they need not be worked out in war or underground by oppression.

There are many questions—many "mighty opposites"—straddling this constitutional divide. The archetypal starting point is the First Amendment. When and where do we draw the line between appropriately protected speech and the freedom to, metaphorically or actually, scream "fire" in a crowd? How can we protect our historically oppressed citizens from the vitriol of "hate speech" without unduly compromising the speaker’s rights of expression? What do we do when citizens who once successfully challenged loitering laws used against them discriminatorily by police, find themselves invoking the same laws to protect their communities from street gangs? These are classic confrontations between individual liberties and public order.

Here, in this issue, we touch our toes in the waters of just a few such issues, boiling hot though they all be. Gun control. The Second Amendment right to bear arms. When we cannot even agree on what to call the question, we can be sure it is an intractable dilemma. Doctors and scholars and actors, all of sound and keen mind, find themselves, ironically, at swords points over this question. Can the government tell our children when they can be where on our earth? Why on earth? And speaking of the planet, how in the world will we cyber-speak our way through cyber space with 18th Century candlepower? What about the private lives of public people? That is exactly what "Enquiring" minds want to know. So how do we reconcile the tension between the National Enquirer’s right to know—apparently on our behalf—and the individual’s right to a private life? Can any chunk of life be declared absolutely inviolate? What chunk and who decides? "We will never report on a candidate’s personal relationships unless they involve foreign leaders or yellow Jell-O pudding mix." Would that be your choice? Or do we instead tell public figures that everything is fair game under the First Amendment and they ought follow our parents’ stern admonition to us as children: "Don’t let me catch you doing that again"? (It always sounded good to me.)

You can decide, at least for purposes of the discussions in this issue, what sounds good to you. Along the way, we offer as well an author’s thoughts on possible alternative, creative routes to resolution of what seem eternally burning questions. But ultimately, the choices, like the rights, are yours. Let us all revel in the freedom to debate them.

Wilson A. Schooley and Robert M. O’Neil
Special Editors