The comments to Andrew’s post on free speech at Brown University are characterized by talking past each other.  Let’s stipulate that nobody is claiming that New York City Police Commissioner Ray Kelly has a legal case against Brown on the grounds of freedom of speech.

The point is that the United States government is supposed to be founded on the idea that rights supersede the government, that we have them individually, whatever the law might say.  To vary from that principle is to invite in the creeping, cancerous totalitarianism that is redolent in progressive causes.

If we recast Brown as the owner of a home who rents space to a roommate, representing the stop-and-frisk protestors, nobody would claim that the owner’s guest could go to the police because the roommate made it impossible for him to make a speech. That doesn’t end the matter, though.

There would presumably be tacit or explicit rules of the house — who has private space where, what rooms are set aside as common space, what those common spaces can be used for.  And it would be up to the owner to enforce the rules.  If the rules are that the back porch is set aside for intellectual debate on Thursday nights and the roommate determines not only that he’s not going to listen to a particular guest, but that he’s going to make it impossible for her to speak her mind, it would be legitimate for a neighbor to opine that the roommate doesn’t really believe in freedom of speech.

Even more: by failing to enforce the rules, the owner (i.e., Brown) has also brought into question his belief in that particular human right.

Andrew’s key argument, as I understand it, comes with his suggestion that “once society accepts that fundamental rights can be limited by self-appointed groups… then the rational response for every individual is to join a strong group that will protect their basic rights.”  For a sense of what this means, consider a recent column by George Weigel that ran in the October 31 issue of Rhode Island Catholic:

… Christians live in daily fear for their lives in Syria and Egypt, two imploding societies where the majority Muslim factions and sects can seem to agree on one thing only: It’s open season on Christians. Within two decades, perhaps less, Christianity may well have ceased to be a living ecclesial reality in many of the places where Christianity was born, not to mention the cities where sub-apostolic and patristic Christianity developed; the sole exception to this pattern throughout the Middle East and North Africa is Israel.

Weigel contrasts this escalating experience with the ambivalence of Western Christians, who inhabit, he says, “the Church Comfortable, the Church Lax, or the Church of Nice.”  In the terms of Andrew’s post, Western Christians have joined with the “strong group” of their own civilization for the protection of their own rights.  The fear that Andrew expresses and that Weigel implies around the edges could be given specific example as follows: If we don’t actually believe that Middle Eastern Christians have rights to religion and expression, rights that are deserving of protection, then we don’t really believe in those rights except as principles that we’ve agreed upon within our own socio-geographic group.

Bizarre things start to happen, intellectually, when this becomes the case.  The concept of “rights” that the stop-and-frisk protestors and (surprisingly) some libertarians wind up articulating is that they exist only to the extent and in the contexts that the government is required to protect them.  As a practical matter, the declaration that we only have what rights the government is willing to enforce on our behalf is no different than the declaration that we only have what rights the government grants to us.

This isn’t to say that the government should enforce rights outside of its own purview (because then the well-connected neighbor could presume to decide who wins in the balance of rights — the owner, the roommate, or the guest).  Rather, it’s to affirm that rights must be something we have a duty to enforce on our own initiative, outside of and above the head of government.

Another example exists in current events, with the Employment Non-Discrimination Act (ENDA) that just passed the U.S. Senate.  The flip side of activists’ claiming that Ray Kelly has no right to speak at a private organization like Brown University (and Brown’s abrogation of the responsibility to insist otherwise) is activists’ insisting that the government must enforce a new right of non-discrimination among private employers.  In both cases, progressives are defining rights along political lines — determining by their advocacy and their “direct action” the causes and worldviews that are protected and those that are not.

How insidious this trend can be is observable in the distorted, undermining conception of natural rights that arose in my conversation about school choice with Bob Plain and Bill Rappleye.  Somehow, the fact that the United States Constitution protects “the free exercise” of religion has come to mean that religious exercise is actually more suspect than other areas of belief and social convention.

The declaration that government must, up to the federal level, protect one’s right not to have our collective tax dollars pay for religious instruction pairs with a declaration that our neighbors must pay for any non-religious instruction that we have the political power to move through our local school committee, legislature, or federal regulation.  Atheists must never contribute to a pool of money that, in some small portion might pay for Catholic education, but Catholics have no choice but to fund safe-sex education, gun owners to fund anti-gun hysteria, and Tea Partiers to fund the lesson that “the commands of government officials must be obeyed by all.”

The trick, in that last phrase, is to gain the power to dictate what commands government officials will give, making campaigns for office a by-any-means-necessary activity (even to the extent of lying, spying, IRS intimidation, and whatever other means arise). The trick, in education, is to create a government monopoly with the funds that we collectively set aside for education and then to restrict what can be taught there.

In all cases, the trick is to insist that rights only exist where government is required to protect them and then to use political activism to make sure that only approved groups or points of view actually have a right to enter the government-regulated public square in the first place.