Affirmative v negative rights

There were two cases I heard on the radio today that are fantastic examples of the conflict between affirmative and negative rights.  The first story was about the Internet.  According to the Bill of Rights, we have the right to access the media available to communicate within our freedom of speech.  What that means is not that we get free broadband, but it means that the government has the goal to provide universal access (hence the tax we pay on our phone bills) and that a common carrier (like AT&T), even though it is private, cannot deny you service if you have the money to pay.  This is the negative right.  No one has the right to deny you the access (the negative part), but you don’t have the affirmative right to demand it either.  So we have an affirmative right to free speech, but a negative right to Internet access.

Then there are some rights that are related to government restrictions.  In a public place, the government does not have the right to prevent you from saying something.  But in a private place, the owner does.  They can kick you out of the premises if you insist on speaking about a particular topic.  Google is collecting all kinds of data about you when you navigate the Internet but the government cannot do the same.  The Supreme Court is deciding whether the government can subpoena those records and if you have the right to know when they do.

The second story was about a proposed law in Concord, MA whereby restaurants (as private property) can refuse to serve anyone for any reason, including those protected by the Civil Rights laws (race, religion, gender, etc.).  This seems to violate the Civil Rights laws.  What qualities are affirmative rights and what are not?  The show’s hosts and callers were clueless about the law (what else is new with talk radio).  They didn’t see the difference between denying someone service for being black/female/gay and denying them service for being sloppy, smelly or some other attribute that isn’t protected by law.  Even on private property, you have a partial negative right to service to any business serving the public (like a restaurant) – they can’t deny you service for being in a legally protected class, but they can deny you service for anything else they want (like being a jackass, or wearing an ugly purple shirt).  And for some safety and health laws, they have to deny you service (smoking, no shoes, etc). 

Health care is a muddled example.  An emergency room has to serve anyone who comes in.  It isn’t just protected classes that have the positive right, but so does everyone else. They can bill you later, but if you can’t pay it becomes complicated.  But either way, they can’t deny you service up front based on your ability to pay.  So do you have the positive right to emergency room care?  Sort of.  Until we come to a solid and explicit conclusion on this, we will never solve our health care problem.  It is really the basis of whether Obamacare’s individual mandate is Constitutional or not.  The only way the mandate can be unconstitutional is if we let ERs deny service to unprotected classes (i.e. people who can’t pay and don’t have insurance).  But if we have the right to ER treatment, we have to allow the individual mandate.  You can’t have both the right to ER care even if you can’t pay and have the right not to get insurance to pay for it.  That just encourages freeloading.

Then the other muddled part is whether a religious institution or individual can deny a service that violates their religious beliefs.  The controversial one is abortion, but what about birth control (hospitals that will refuse to let your primary doctor give you advice on it, or drugstores that won't give you the morning after pill even if you have a prescription)?  Or can Scientologist parents refuse treatment for their minor children because of their religious beliefs (regardless of what the kid thinks)?  We can make these decisions on pure ideological grounds (freedom of religion or a right to health care) or we can decide based on practical considerations (how easy is it to just go somewhere else for treatment or to buy the item).  If one Walgreens doesn’t sell condoms to minors, I can go to another one or to a CVS.  But if I am at the only hospital covered by my insurance, can they deny me a procedure that my insurance covers?  If not, I have no other options.

Then another good one is whether prisons are legally required to provide Kosher or vegetarian meals to prisoners that need them.  Obviously, the person isn’t in the prison by choice, so they can't just go somewhere else.  But a lot of prisons are privately owned and managed so they aren't governed as strictly as government agencies are.  Religion is a protected class, so do prisons have to serve you a Kosher meal on Kosher plates prepared in a Kosher kitchen?  That could be expensive.  Hotels often go to a nearby Kosher takeout and give you a disposable Styrofoam box and plastic cutlery.  Do prisons do the same?  And what about vegetarian?  This is not a protected class.  So there is no legal obligation for the prison to give you a vegetarian meal.  How about lactose intolerance or allergies?  Those aren’t protected classes, so does the prison have the right to deny you a nut-free eating environment if you are allergic to nuts?  I wonder if you could get paroled just because you are costing the prison too much money to give you a Kosher and vegan meal in a nut-free and gluten-free room.