I’ll just state it plainly: yes, states restricting certain components of the 1st amendment does concern me to a high degree. We’ve been a polarized country since I can remember, and if the average American is partisan, then your average legislator is likely an extremist. With the rise of such restrictive legislation, I think it’s important to look at where legislators base their “right”to bend the constitution to their will. Rulings like Hague v. Committee for Industrial Org. expanded our protections over public assembly, but our freedom of expression often collides with the public’s demand for order.
Perry Education Association v. Perry Local Educators’ Association is a ruling that clarified to what extent the government can restrict the freedom to assemble, stating the government may, “reserve a forum for its intended purposes as long as the regulation is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” While this should give clarification to how much our states can limit our right to assembly, it continues to be debated just how far a government can go.
Where I think this debate is often blurred, and is often used as an excuse to further limit the 1st amendment, is through private property. Private property is in fact protected under the constitution, through the 5th and 14th amendment, but these laws seem to give special privileges to private property of private companies.
Freedom of expression is more than just being able to communicate with each other, it’s also being able to communicate our problems to our government. Those problems can, and often do, come from private companies. Private companies are not exempt from being held accountable for their actions and critical infrastructure trespassing laws come off more as a way to let them off the hook.
A big example of this is RS 14:61.1 which expanded protections of oil infrastructure to include it as critical infrastructure. I am not going to argue that oil isn’t an important industry in America; it is. But, they are private companies therefore they are still subject to scrutiny and outcry. And beyond that, the potential punishments are severely harsh. It lets me know that these laws are passed with the explicit goal of protecting private companies from liability.
Yes, I do think it is appropriate to use policy for the regulation of speech. However, there are limits. Butler v. Michiganis a great example of such a limit. The state of Michigan attempted to restrict what they deemed “obscene material”but it was struck down in the pivotal ruling by the Supreme Court. Cases like these show the lines where free speech can be limited, in this case by showcasing that “obscene” isn’t necessarily a clear and present danger, therefore cannot be limited by law. And again going back to Hague v. Committee for Industrial Org. it has already been ruled that public officials cannot limit public assembly without clear reasoning. The Louisiana law provides no such reasoning, therefore it should be struck down under our constitution and precedent.
