Throughout the span of the United States’ history, and most notably throughout the 20th century, we have seen the First Amendment challenged through legislation which has resulted in both expansion and restriction throughout various decisions brought fourth by the courts. In the 21st century, particularly since the 2016 election, there’s been concerns sparked with in-state legislation attempting to narrow and restrict freedom of expression, most notably the right of peaceful assembly and protest. According to PEN America, Americans involved in social/political movement protests increased to one out of every five Americans from 2016-2018, with many of anti-protest bills being promptly introduced to state legislatures upon these various demonstrations. This correlation is significant as prior to 2017, the amount of protest bills being introduced was minimal. While there are various factors as to why these restrictive 116 state bills were introduced, the reflection and overall negative attitude toward these demonstrations from President Donald Trump seems to have instilled some level of influence over a culture of suppressing one’s right to freely assemble when it goes against his party’s interest or political agenda, with him going on record saying, “I think it’s embarrassing for the country to allow protesters”. This level of open hostility from the executive branch towards this first amendment right is particularly concerning as it sets a tone for state governments to introduce legislation to curb legal protection solely based on content.
I don’t believe there is a one-size-fits-all solution when regulating free speech. Policy can be an effective method to assist in maintaining public safety concerning protests that lead to violence or intimidation. However, when lawmakers pursue passing legislation solely based on the content of protests (as opposed to being content neutral), and not external factors regarding the nature of the protest such as public safety, it can create tension for those wanting to express their First Amendment right, yet are deterred for fear of heightened legal or financial intimidation. I think it is important to emphasize what constitutes as “violence” or threats pertaining to violence as well. In the 1972 Supreme Court case, “Gooding v. Wilson”, the ruling established further restrictions on the governments ability to punish speech based solely on vulgarity, and the the speech in question must be likely to cause an immediate violent response. The significance of this court case is that it allows us to be able to live in a country where people aren’t intimidated to freely express themselves and views, no matter if the speech is controversial or unpopular, as long as it does not cause immediate violence or threat of violence.
A more contemporary example of why I believe policy regulation regarding freedom of expression can be nuanced is found in a multitude of the “critical infrastructure” trespass laws that have been enacted since 2016. In some states, these laws have resulted in felony charges, and in others, there has been substantial increase in financial liability to organizations aiding those engaging in protests near the construction of newly installed pipelines. While trespassing on these grounds is already a misdemeanor offense in every state that has enacted these “critical infrastructure” laws, these new penalties brought fourth by this updated legislation shows an attempt in further deterring these protests from occurring. While I believe any involvement impeding construction of critical infrastructure of being built should be met with penalty, I also believe it should be proportional to the severity of the actions taken. I do not believe, however, that verbal protests are acts of obstructing these pipelines from being built, as long as it is being conducted in the appropriate setting (not trespassing on the private land or causing any public safety risks). There are a staggering amount of moving pieces in many of these cases that need to be examined on a specific, case-by-case basis, such as the manner of what these protests entail, but I do think there is a reasonable amount of concern involving some infringement on freedom of expression with the increased penalties that should be continued to be examined and challenged in court.