Many support balancing rights with social costs, seeing them as equally important.
Cigarette advertising ex.
Problem is, if rights are limited to those that are cheap or free, people will have very few rights.
So Dworkin disagrees. Rights trump non-right interests. 2 motorcyclists ex.
To supercede rights, there must be a compelling or unusual reason
The values protected by the original right are not significantly at stake here (strip dancing ex.)
Some competing right is abridged (not right vs. interest, but right vs. right) (more on balancing next week)
The cost to society is not simply incremental, but of a degree far beyond the cost paid to grant the original right (nuclear bomb plans ex.) (see Smith’s analogous “compelling state interest” test CM 31)
Dworkin recognizes these fundamental rights:
HLA Hart’s modified democracy (protection for minorities) because they lack the ability to use democracy to protect themselves.
US Constitution’s stricter scrutiny
Lord Devlin: Mill is wrong, culture has right to defend itself, ban things even where no one is hurt. Rights should be defined by culture, not Mill’s philosophy.