The concept of "dignity," which emerged in the law in America and abroad primarily after World War II, is specific enough to have legal force but vague enough to be marshaled both in favor of robust free speech protections and by those seeking to regulate "offensive" speech. A recently published law review article by Professor Neomi Rao, Three Concepts of Dignity in Constitutional Law, 86 Notre Dame L. Rev. 183 (2011), explores the different understandings of dignity applied by the courts. Rao ultimately concludes that if American courts wish to invoke the concept of dignity, they should do so in a way that accords with our constitutional tradition of protecting free speech and autonomy rights.
Ideals like "liberty" and "equality," while somewhat nebulous, have fairly established meanings in America’s constitutional jurisprudence. Liberty is the right to be free of governmental intrusion into various aspects of one’s life; for instance, the liberty to travel from state to state and the liberty to make certain decisions about one’s body. Equality, as defined in Fourteenth Amendment jurisprudence, is the right to be free from discrimination and classification by the government for impermissible and irrational reasons, including the prohibition on the government segregating schools by race. Dignity, however, has no such set meaning, and may therefore be invoked more informally in the name of any number of conflicting rights.
Rao’s article explores how three distinct concepts of dignity have been used by American courts and courts abroad. The American legal tradition largely uses the term dignity to protect what Rao labels "intrinsic dignity." Those who favor this understanding of dignity believe that, because all humans have a capacity for self-awareness and rational decisionmaking, we all deserve respect. Personhood itself "requires a certain degree of respect." The intrinsic dignity model usually yields court decisions that safeguard individual choices about what constitutes the good life without governmental interference (this is also called negative liberty). "The basic idea," according to Rao, "is that a person’s dignity is best respected or enabled when he can pursue his own ends in his own way":
Negative liberty is pluralistic—it does not pick and choose among good ways of living, but rather leaves each individual to pursue his own good in a manner that leaves others free to do the same. Similarly, human dignity as individual agency does not require a particular commitment on ultimate questions of the good. Even if we cannot agree on ultimate values, we may be able to agree to allow others to pursue their various ends within society. The individualistic account of dignity leaves a space for such personal decisions. Because of its commitment to pluralism and universality, inherent dignity, which reflects our human agency, seems naturally and traditionally linked to liberal values and negative liberty.
The intrinsic or inherent conception of liberty has been cited by the Supreme Court to protect the right to privacy, the right to represent oneself in criminal proceedings, and the right make choices about sex and reproduction. Notably, inherent dignity also protects America’s exceptional right to free speech, even if that speech is deemed uncivil by others. (FIRE has cited rights like legal equality, free speech, and due process as "essential qualities of individual liberty and dignity.") For example, in Cohen v. California (1971), the Supreme Court upheld the right of a Vietnam War protester to wear a jacket that said "Fuck the Draft" in a courthouse. The Court cited the "individual dignity and choice upon which our political system rests" as a basis for reversing Cohen’s conviction for disturbing the peace. In Cohen, Rao explains, "[d]ignity did not depend upon an externally defined conception of respectful or civil speech; rather dignity inhered simply in the human capacity for self-expression."
In contrast, many European constitutional courts (and occasionally American courts) adhere to a substantive conception of dignity. Instead of dignity inhering in all humans, society as a community decides what constitutes and fosters dignity. In order to protect individuals’ and society’s dignity, external values determine what is and is not permitted. Although in the intrinsic conception of dignity, courts and society must still decide which autonomy rights are protected, society does not decide how to exercise those choices. In the substantive conception of dignity, however, external, evolving, and subjective standards about human behavior determine which ways people must act, and what they deserve from others, as a product and exercise of their dignity. According to Rao:
Dignity here stands for what is valuable for individuals and society at large. Constitutional courts sometimes use this conception of dignity to justify political constraints and to promote values such as community or public morality. In this line of reasoning, a "proper" conception of dignity means guiding the individual and society toward particular dignified choices. These forms of dignity will often conflict with the dignity of the autonomous individual.
The substantive conception of dignity has been cited by courts abroad to uphold the ban on dwarf-throwing in France, the prohibition on Muslim women wearing the burqa in some European countries (because it runs "counter to women’s dignity"), and bans on pornography and prostitution in Canada. Substantive dignity is also cited (again, mostly in Europe) to justify requiring the state to provide food, shelter, and financial support to its citizens. By contrast, according to Rao, "the United States remains an outlier amongst modern democracies because it maintains a very limited conception of what the state must affirmatively do to protect its citizens."
The third understanding of dignity goes even farther than requiring the state to provide certain goods to people and allowing the state to make certain decisions about what is dignified; it requires an "attitude" of respect by both citizens and the state. Rao calls this conception "dignity as recognition," which "requires esteem and respect for the particularity of each individual." Dignity as recognition is "the demand that others respect one’s choices, a demand that state policies demonstrate the proper regard for individual differences." Under dignity as recognition, instead of having a right to privacy, individuals might have a right to compel the government and individuals to show respect for how that privacy right is exercised.
The difficulty with this conception of dignity, Rao argues, is that it does not apply equally to everyone. Different groups, based on subjective and evolving understandings of what demeans dignity, must convince the courts that their group deserves special recognition and protection.
This third type of dignity underlies European and Canadian hate speech prohibitions, which ban speech that vilifies or disrespects groups based on specific attributes like race, ethnicity, religion, or gender. The Canadian Supreme Court has articulated that "[t]he derision, hostility and abuse encouraged by hate propaganda … have a severely negative impact on the individual’s sense of self-worth and acceptance." Professor Jeremy Waldron, in an article called Dignity and Defamation: The Visibility of Hate, 123 Harv. L. Rev. 1596 (2010), has also argued that citizens should be entitled to protection against publications that attack their dignity as people. We all have an obligation, according to Waldron, to "nourish and maintain" the dignity of others.
In the United States, "hate speech" is not recognized as a category undeserving of First Amendment protection. America has an exceptional record of protecting even the most virulent forms of racist speech, Holocaust denial, and profane denouncements of particular religions, so long as the expression does not become true threats or incitement to imminent lawless action. Waldron’s desire to extend the right to equal status under the law to the entitlement of "a general assurance of decent … respect" by individuals breaches the established divide in this country between laws that regulate action and behavior and laws that censor speech or seek to control individuals’ consciences.
Indeed, Rao argues that the dignity of recognition exists in great tension with a right commonly associated with intrinsic dignity—the dignity of speakers to express themselves. As a result, she believes that the term "dignity" alone cannot resolve conflicts between the value of free speech and the "right" of the listener to feel respected. To the extent that American courts do use the term dignity, they must establish a more concrete definition. Rao concludes, and I agree, that although a solidified definition of dignity may contain elements of all three types of dignity, and may incorporate a mix of liberty and equality, courts in this country should especially defer to the intrinsic dignity conception, which has the deepest roots in American constitutional traditions.
I highly recommend reading the entirety of Rao’s article. Although there is room for disagreement on whether she has properly distinguished the three types of dignity from each other, her exploration of how the concept of dignity affects rights both here and abroad is an important project. The words we choose to label our rights (like liberty, equality, and dignity) greatly influence the scope of these rights, further highlighting the importance of allowing speech to flourish freely.