How State Laws Are Rewriting the First Amendment

The recent surge in state-level legislation is deeply concerning because these bills aim to restrict or eliminate key elements of freedom of expression. And, what is more deeply concerning is the mask these laws hide behind to get backing from citizens who think these laws are helping ensure public order or help national security. Meanwhile, these laws are breaking down our First Amendment rights, like access to education, public discourse, and the way we protest. 

One example of this is the increase in state laws that aim to target the right to protest. In Coming Down the Pipeline by Jenna Ruddock, the author discusses state laws that are targeting protest rights under the guise of protecting critical infrastructure. The article talks about 17 states that have already put these laws in place, which increase penalties for protesting near oil pipelines or similar places. These laws directly affect environmental activists and Native communities whose voices are being silenced while these laws are meant to “protect” the safety of the public. However, Hague v. Committee for Industrial Organization reminds us that “streets and parks have immemorially been held in trust for the use of the public,” and expressed activities in these spaces are protected unless restrictions are justified by a content-neutral significant governmental interest. 

Another issue is legislative interference with the dissemination of ideas. In Butler v. Michigan, the Supreme Court denied a Michigan law that banned the sale of books deemed “harmful to youth.” The decision was made to deny the law because they refused to “reduce the adult population… to reading only what is fit for children.” And, in today’s society, we are seeing more legislation like Michigan’s when it comes to banning books in schools and public libraries that center around race, sexuality, and gender. These ideas and laws are harmful and put the people’s education on the line, especially when it comes to access to diverse perspectives. 

Is policy a legitimate tool for regulating speech? 

Yes, within limits. As discussed in the previous blog, the First Amendment does not provide an absolute shield for all forms of expression. Some examples of that are speech that incites violence, defamation, or speech that falls into other narrowly defined exceptions. However, what we are seeing today are laws crafted not to protect the public, but to suppress them. And, according to PEN America’s Arresting Dissent report, over 100 bills introduced between 2015 and 2020 aimed to criminalize various forms of protest, including road blockades, campus demonstrations, and acts of civil disobedience. 

Additionally, in Nora Benavidez’s article in The Atlantic, the author expresses how these laws are selective and intentional. She argues that the First Amendment rights are held in higher esteem when you “agree with the president,” which explores the ideological biases behind protecting freedom of speech. This selective enforcement completely ignores the true principles of free expression that the Constitution aims to protect. 

While policy can be appropriate for regulating specific types of speech, the current landscape of state legislation seems to be taking a turn for the worse. Focusing more on abusing positions of power and selective hearing rather than protecting the people. These laws are not only harmful and dangerous to the First Amendment but also democracy as a whole. If the goal is to preserve our civil liberties, then we must pay attention to our state legislation and remain informed on what is happening with our communities before it reaches the entire country.