Blog Entry #3: State-level Legislation and Freedom of Expression
How do you respond to the rise in state-level legislation around the United States to narrow various elements of freedom of expression? Do these trends concern you?
State-level legislation around the United States to narrow various elements of freedom of expression has been on the rise, with eight states enacting 11 restrictive voting laws in 2022; seven states enacting election interference laws in 2022; harsher trespassing laws coming to fruition after Standing Rock protests; and 23 bills in 15 states limiting protest rights from 2015 have become law as of 2020.
For me, the response is certainly concern. I find more concern with the fact that legislation surrounding freedom of expression has become rapidly restrictive and bias towards those who align with the policies of those in office. I would have less of a problem with the restrictions if they were universal and not aimed at content. That being said, if "imminent lawless action," isn't being incited, I still find it to be unconstitutional.
Seeing as I know people who've been at protests where their freedom of expression has been limited--simply because they're protesting against the government or whomever holds the purse--it's concerning that the limitations are legal, despite the fact that they're unconstitutional. The people who were at the protests are not violent people and they had nor have any intention of harming others, yet they've been treated like the villains.
As it's our duty as Americans, patriots, to foster conversation and free expression, we can't shut people down because we dislike their message. It's honestly unpatriotic to be okay with restrictive legislation just because it's what the government implemented; we don't have to and shouldn't always agree with the government. If anything, I'm more concerned with the lack of pushback on restrictive legislation, as only two of the 23 bills have been challenged in court.
Is policy an appropriate avenue to regulate freedom of speech?
As a general rule, I don't think policy is an appropriate avenue to regulate freedom of speech. If we rely on policy to regulate freedom of speech, we'll end up with more cases like Grosjean v. American Press Co., Inc., New York Times v. US/Washington Post v. US, and Gertz v. Robert Welch, Inc; the difference being that the law would allow content-based restrictions, going against the Supreme Court precedents. From an economic standpoint, it seems like a waste of money to rehash the same cases, because someone in the government or with money doesn't like what the press has to say about them--per New York Times v. Sullivan and the former cases listed, as long as there's no actual malice, it's the press' right and duty to hold people, corporations, and the government accountable regardless of how it presents them.
Additionally, Hague v. Committee for Industrial Organization established that it is unconstitutional for local ordinances to be used to restrict or deny permits for peaceful assembly in public spaces (also establishing the public forum) based on content. Like the current state-level legislation being created with the intent to limit free expression based on content, the city mayor, Frank Hague, was displeased with the promotion of union membership, labeling it as radicalism that disrupts public order. Police were ordered to break up meetings and seize material. In other words, restricting protests by using local ordinances because the content is "disagreeable" is unconstitutional, so policy is not an appropriate way to regulate freedom of speech.
The Supreme Court also struck down the Michigan law and Georgia law that were used in Butler v. Michigan and Gooding v. Wilson, respectively, as both were too broad and could be used to restrict freedom of speech, punish protected speech, and deny the rights guaranteed by the First Amendment. Ipso facto, the current state-level legislation restricting free expression are unconstitutional and further affirm that policy is not the appropriate avenue to regulate freedom of speech.