The Right to Dignity Rex D. Glensy - Columbia Law School

2011] The Right to Dignity 125
First Amendment cases probably present the most nuanced
version of the negative rights approach when it comes to the right to
dignity. 275 The Supreme Court seems to have agreed with him, noting
that “the right to live in human dignity,” which is a basic guarantee
of the Constitution, is a key principle embodied by the First
Amendment. 276 In challenges to the freedom of speech, there could be
dual dignity interests at play: that of the speaker and that of the
subject of that speech. That scenario would be especially true where
the First Amendment is asserted as a defense against a defamation
suit. In such circumstances, the negative right, i.e., the proscription
on governmental interference with the dignitary interests of a
speaker, would probably be a tipping point in the analysis, and would
usually favor the speaker. 277 Nevertheless, not all limitations on
speech would trigger a negative analysis of dignitary interests.
Commercial speech, for example, might seem immune from this kind
of framework (although, given the Citizens United 278 case, it is
difficult to predict how the Court would construe commercial speech),
but certainly any speech that would relate “to the essence of the
individual’s right to express . . . herself” would likely involve some
version of “degrading treatment that violates human dignity.” 279
These examples show that the negative treatment of the right
to dignity has been present in American law for some time now,
particularly in Supreme Court jurisprudence with respect to a host of
different constitutional rights. Thus, possible criticisms levied at
employing the right to dignity in this way would differ from those
illustrated above. Such criticisms would probably take the form of
admonishments not to add “new rights” to the Constitution, or
275. See generally, Ronald Dworkin, Liberty and Pornography, N.Y. Rev. of
Books, Aug. 15, 1991, at 12, 15. (noting, for example, that the freedom to publish
pornography may be contradictory if it results in the silencing of women. “[A]
woman’s speech may be silenced . . . by . . . images that change her audience’s
perceptions of her character . . . and also . . . change her own sense of who she is
and what she wants.”).
276. See N.Y. Times v. Sullivan, 376 U.S. 254, 256 (1964).
277. The right to abortion also creates scenarios pitting competing
dignitary interests. Here, it is less certain which side of the equation the right to
dignity is more likely to help. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157
(2007) (dignity interests curtailed the rights of others in the prohibition of certain
lateterm abortion procedures deemed constitutional partially out of “respect for
the dignity of human life.”).
278. Citizens United v. Fed. Election Comm., 130 S.Ct. 876 (2010).
279. David Kretzmer, Human Dignity in Israeli Jurisprudence, in D.
Kretzmer & E. Klein, The concept of Human Dignity in Human Rights Discourse
161, 174 (2002).