Blog Post 3

The blog post for Module 4 asks us to consider two questions regarding how the government may attempt to regulate free expression, especially the freedom of assembly, and states the following prompts:

  • 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? If not, please explain. If so, please explain why.
  • Is policy an appropriate avenue to regulate freedom of speech? If yes, please explain your analysis with citations to at least two of this week’s readings.

For this first prompt: “Do [trends regulating assembly] concern you?” Yes, certainly! But at least prior to the readings, I’d have answered that I wasn’t sure how concerned to be. As pointed out in Arresting Dissent: Legislative Restrictions on the Right to Protest protests are often disruptive and unpopular:

“As Sue Udry, executive director of Defending Rights and Dissent, told to PEN America: “Protest movements are rarely welcomed when they are happening. After all, their job is to push the envelope beyond where the popular consensus is, to bend the arc toward justice. It isn’t usually until after gains have been made—the right to vote for women and Blacks, the eight hour work day, gay marriage—that the rest of the world catches up and begins to appreciate the protesters.”

So, I had assumed, some backlash in response to recent surge in protests shouldn’t be surprising. However, after our readings, there are several elements of the recent bills that are definitely alarming. In particular, bills intended to “immunize public or private actors from liability for harm caused to protesters” seem to not only remove important protections but also to support the state treating protesters as a threat, as opposed to emphasizing the state’s obligation to protect protesters’ rights. Maybe more troubling, it seems like many of these bills are intended to intimidate and suppress expression. This is especially true of the bills criminalizing the role of organizers or those “aiding or abetting” protests. Pivoting to our second prompt for this blog post, that’s clearly not an appropriate role for policy. I sincerely appreciated this point in Module 4 Lecture 1.  Bills that are clearly unconstitutional and aren’t actually designed to be effective laws, but instead are intended to intimidate people the legislator disagrees with are appalling. Stating that these are obviously inappropriate, I’m not sure what to do about it, though. Is there a response other the sponsors out of office, or volunteering to test their legality?

In our reading “The Expressive Fourth Amendment”, the author explores reframing the standard used to evaluate police response to protests. The author asserts that the current standard of “reasonableness” should not only recognize protesters’ protection under the Fourth Amendment but should also emphasize the protester’s First Amendment right to free expression when evaluating “reasonableness”.  This doesn’t exactly explore the appropriateness of policy but rather argues for clarification on current standards and expectations related to policing in response to protests.

In my opinion, shifting the weight of the interests involved away from the current “reasonable response to an alleged crime” to include room for protesters’ rights to free expression seems compelling, even obvious. However, in addition to re-evaluating the standard for reasonableness, we might explore a step (slightly) further than the author, and also consider the state of mind or motivations for the officers involved. Simply asking “why are the police here” and then evaluating whether their actions are consistent with that purpose might make a more reliable standard than reasonableness.  

As the author points out, “The court warned against ‘reviewing police officer’s actions with the ‘20/20 vision of hindsight.’” Instead, we could ask whether police actions are consistent with an obligation to protect both public safety and the protester’s expressive interest. This seems less subjective than the standard of “reasonableness”, and avoids the court having to implicitly accept the narrative of an individual officer making split-second decisions involving a presumed criminal.  

Finally, I hadn’t considered the right to vote to be directly related to expression, but it was encouraging to see the roundup included in the readings. Voting rights and the policies around it have been a deep concern for my wife and I for several years now. My wife was closely involved in this effort through her participation in Isiah, and our home state Minnesota did some excellent work expanding voting rights this year. While that’s laudable as a whole, the project I’m closest to, Ranked Choice Voting, is struggling to find traction with policymakers.