On Government’s Duty to Secure the Right to Free Speech

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I see a lot of people say that free speech is only about what the government does. That is wrong. The First Amendment limits the ways in which government can restrict free speech. But it is not the limit of the right. Private actions can be contrary to free speech, and if we as a society believe in free speech, we need to condemn such actions. And in certain circumstances, the government has a duty to take action to halt or punish acts that interfere with the speech of others, or with the exercise of other fundamental rights. The founding document of our country states the case very clearly: government is established “to secure these rights.” That means more than government not actively interfering in the exercise of those rights. It means taking action against non-government people who unlawfully interfere.

There are, of course, situations where no such government action is appropriate. If two groups are in a public park and one out-chants the other, obscuring the quieter group’s message, then that’s simply free speech v. free speech. But in a situation where a group has legally acquired the right to a forum—by reserving an auditorium or buying a bus ad, for example—we should not countenance people who try to restrict that right, and the government should defend that right.

When such forums are controlled by the government, they must be made available without taking into account the content of the speech to be expressed. Indeed, the government should avoid, as much as possible, looking to the content of private speech when setting policy that effects such speech. This principle, when faithfully followed, allows someone who disagrees with a speaker in an auditorium can themselves reserve it later and hold their own speech.

It is important not to interpret what I’m saying as “people shouldn’t protest a speaker.” Protesting speakers is an important part of free speech in our society. But protests should not have the goal of preventing a speaker from being heard, and when they occur in a forum that has been temporarily assigned to a particular speaker, they should not have that effect, either. Nor should protests interfere with other rights.1

Which brings us to the topic of blocking highways. The right to travel the highways is an important civil right. Travel between states has been held to be a fundamental right under the due process clauses of the 5th and 14th Amendments. In some circuits, travel within a state has also been held to be a fundamental right (the issue is unresolved in other circuits). Blocking a roadway denies this right to others. Indeed, blocking limited access highways effectively imprisons people unlucky enough to be between exits when the protest starts. In places like D.C., blocking a single highway can cost tens of thousands of people hours of their time. White collar workers are often lucky enough to have some flexibility in their hours, but many people—especially lower income people—are not so lucky and could lose their jobs.

Of course, we as a society have determined that sometimes people should be allowed to close public streets for expressive activities or simply to have fun (or, to put it another way, to pursue some happiness). Parades, protests, marches, street fairs, block parties, and art shows can, with the appropriate permits, block traffic and cause delays.

Why is this ok when an ad-hoc street closure at the whim of private individuals is not? First, permitted closures are announced ahead of time, allowing people to react and plan accordingly. Second, the government is able to take additional steps—extra Metro trains (although not during SafeTrack), traffic officers at corners, detours, and the like—to reduce the cost of such activities on those not participating. This is one of the things DC does very well, in fact. Third, such permitting procedures are subject to political checks, which means society as a whole is able to balance its commitment to free speech with other important rights (i.e., to strike the balance in “secur[ing] these rights”).

Of course, if that political check begins to impermissibly restrict speech—most likely by being content based, such as parade permits being denied to unpopular groups—then courts can and do step in. First Amendment jurisprudence refers to such schemes as content-neutral time-manner-place regulations, and there is a large body of law discussing what types of regulations comply with the First Amendment.

I’m assuming that, as a general matter, we are all comfortable with the government punishing those who block roads without the proper permits. For example, I doubt anyone would object if the police arrested people who barricaded a street to have a party or a race of some kind. But some people I’ve spoken to think that protesters should not be arrested for blocking streets. And that scares me, because if we allow that then we’re requiring the police to judge when a road-closing is justified by the content of the message (or, as at least one person has put it in conversation with me lately, by the powerlessness of the group doing the protesting).

A scheme like that, where law enforcement makes decisions about whom to arrest for road-blocking, is antithetical to free speech. It allows the government to privilege certain viewpoints over others and to choose whose free-speech rights are worthy of being secured.

Nor is it feasible to refuse to arrest anyone who claims to be engaging in speech, though at least such a policy would be viewpoint neutral. Such a policy would be an incredible burden on the right to travel (which also means the right to earn a living, to put food on one’s table, and to provide for one’s family).2

I was inspired to write this because of an ongoing conversation with a friend of mine, plus this account of a group of students bragging that they shut down a college lecture because they didn’t like what they assumed the lecturer’s message would be. These proud, boastful students denied the professor a right to speak, and denied their fellow students and other members of the public the right to hear him. In situations like this, police action to remove the protestors, and school action to punish them, is not just warranted. I believe it is required if we as a society want to say we believe in free speech. The same goes for arresting those who close public highways without proper permits.3

1. There are, of course, many private actions that limit free speech of others that are not worthy of condemnation. There are also many private actions that limit free speech that, while being worthy of condemnation, should not be legally restricted. I’ve not touched on them in this post to a large degree. Instead I’ve focused on situations where the government should take affirmative action to protect the rights of others.

2. I have no problem with police giving street-blocking protesters a chance to leave before being arrested, as long as such a policy is applied consistently. I’m speaking of situations where the street-blockers have made it clear that, absent direct action by the police, they will continue to hinder the rights of their fellow citizens to travel on the highways.

3. There are, of course, times when it is morally acceptable—even morally required—to disregard the law. That discussion is broader than the issue of protests and road closures, and is not really applicable in the situations I’ve been discussing. Those currently shutting down highways have ample other means to express their message and to get media coverage. And the college students in the link above have more opportunity to express their views than most people in this country today—they have more free time than most adults and are in an environment in which their message is popular and that encourages free expression. We live in a time where it is easier than ever to get a message out to a large audience. The more that becomes true, the less often it will be morally defensible to disregard the rights of others in order to get publicity for a cause.

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