The recent rise in state-level legislation around the United States aimed towards narrowing various elements of freedom of expression requires critical analysis and special attention. Over recent years, bills that target groups such as classrooms, online communities, protest groups, and more have been introduced by states that show signs of giving the government more control over speech. Some of the claims backing these bills state that they are necessary for public safety or for keeping educational aspects safe, though they also may raise concerns regarding the First Amendment’s protections against bills such as these.
I believe that these recent trends are concerning as they seem to be an attempt at suppressing the freedom of expression or giving the government more control over the spread of information. In the Hague v. CIO (1939) case, the Supreme Court established that historically, public parks and public streets have been open to the public for whatever expressive activities they may be interested in doing, and stated that the government may not restrict the public’s ability for assembly or political advocacy in these historically public spaces. The court also ruled that the foundations of a democratic government and participation in democracy are built on this freedom of expression, therefore any bills or laws that restrict this freedom goes against the First Amendment. The recent new laws that attempt to restrict the usage of these public spaces for political advocacy or protests as well as attempts to restrict certain educational contents may be concerning for the protection of freedom of expression.
These recent trends that aim to narrow the restrictions of elements of freedom of expression become more problematic when governments overstep their power and attempt to define what speech is acceptable and which is not. In Gooding v. Wilson (1972), the Court ruled that a Georgia statue that made it a crime to use “opprobrious words or abusive language” invalid due to the vagueness of the statute, claiming that it was not narrowed down to only punish abusive language and would likely result with negative reactions. This case reinforces the key framework of the First Amendment, that any laws or regulations which wish to regulate or restrict speech must be clear and precise as to not punish any speech for simply being “offensive.” Although these cases and many others provide examples of how bills such as these should be handled, many recent state laws contain similar restrictions that can be seen as going against the First Amendment.
Whether or not policy is an appropriate avenue to regulate freedom of speech is a more delicate question that depends mostly on where you stand on the question. I believe that policy is an appropriate avenue for the regulation of freedom of speech, but needs to be very narrow as to only target very specific actions and make clear which actions are not allowed. Regulations should also only be used when additional protections are required as a response to the public’s misuse of their right to freely express themselves. In this article by the American University Law Review, it talks about when, in 2018 “two sets of trespassing charges were filed in southern Louisiana in connection with the Bayou Bridge pipeline. . .” The first charges were filed against pipeline protesters, and just two weeks earlier, a new law had been passed by Louisiana’s legislature that heightened protections for “critical infrastructure”, which included sites such as water treatment facilities and power stations. I believe that this example provides an insight on when policy is an appropriate avenue to regulate freedom of speech, as protests that disrupt critical infrastructure may be viewed as exceeding the rights of the First Amendment. In the “Arresting Dissent” article, it is further explained how many of the recent bills that have been introduced are intended to create “new penalties or harsher sentences for protesters.” While I do believe that policy can be appropriately used to regulate freedom of speech, I believe that the process in which it happens must be a slow, carefully constructed process to explicitly state which actions are prohibited while still protecting the basic rights of freedom of expression.