Shrinking space for free expression

From anti-protest statutes targeting environmental activists to restrictions on teaching racial and gender histories, these state-level legislations narrowing the scope of free expression collectively signal a contraction of the First Amendment’s protective reach.

They imperil the expressive rights of citizens and journalists and test the limits of constitutional protections designed to safeguard dissent and democratic participation.

As Hague v. CIO (1939) affirmed, the government may impose reasonable “time, place, and manner” restrictions, but cannot withhold the privilege of public assembly or grant discretion that allows prior restraints on speech in traditional public forums like streets and parks. 

Despite this, many states have moved to criminalize or chill precisely such expressive acts.

PEN America’s report Arresting Dissent (2020) documents how, since 2017, at least 116 anti-protest bills have been introduced in 35 states, many justified as protecting “critical infrastructure”, yet drafted so broadly that peaceful demonstrations could lead to felony charges.

Jenna Ruddock’s Coming Down the Pipeline (2019) situates this wave of legislation in the aftermath of the Dakota Access Pipeline protests, where lawmakers in states like Oklahoma and Louisiana expanded the definition of “critical infrastructure” to include pipeline construction zones. Unconstitutionally overbroad and vague, these laws grant law enforcement excessive discretion while chilling lawful protest. 

In Louisiana, activists arrested on disputed land now face felony charges, while the pipeline company that trespassed on private property was fined only $150 per landowner. This ridiculous double standard reveals a political intent behind such statutes to suppress environmental and Indigenous activism under the guise of property protection. 

The courts have long rejected this kind of legislative overreach. In Butler v. Michigan (1957), the Supreme Court struck down a law that effectively limited adults’ access to books unsuitable for children, holding that it “arbitrarily curtails one of those liberties of the individual... indispensable to the maintenance and progress of a free society”. Similarly, Gooding v. Wilson (1972) reaffirmed that states cannot enact laws so broad as to punish protected speech alongside unprotected “fighting words”. 

Both cases highlight the principle that vague and sweeping laws are inherently dangerous to expressive freedom, a principle clearly disregarded in the laws I previously mentioned. 

The Fourth Amendment

Karen Pita Loor’s The Expressive Fourth Amendment (2021) introduces a crucial insight: the suppression of speech often intersects with abuses of state power under the Fourth Amendment. 

Loor argues that police responses to mass protests—especially during the George Floyd demonstrations—demonstrated a failure to treat expressive conduct as constitutionally significant. Her concept of an “expressive Fourth Amendment” suggests that courts should weigh the political and expressive nature of protests when evaluating the reasonableness of police force. This reframing connects the First and Fourth Amendments, emphasizing that freedom of expression cannot exist without freedom from state violence.

Utilizing policy to regulate speech

Personal politics should not come into play when considering the constitutionality of suppressing protests, a vital yet tough-to-swallow concept underscored in both last week’s and this week’s readings.

These readings reveal how contemporary policy has blurred the line between legitimate regulation and unconstitutional restriction. While a state may regulate speech to protect public safety, policy becomes inappropriate when it targets the content, motive, or viewpoint of expression.

As Hague established, public spaces are “held in trust for the use of the public” for assembly and debate; a trust undermined when legislatures criminalize dissent under politically motivated pretexts. The danger lies not only in the text of these laws but in their chilling effect: the fear they instill in those who would otherwise exercise their right to speak or assemble.

In a democracy, policy should clarify and protect constitutional freedoms, not constrict them. The current wave of legislative and policing practices reflects a regression from those ideals. 

As both Ruddock and Loor show, safeguarding expressive freedom requires public awareness of how state power is wielded against dissent. The First Amendment’s promise endures only if citizens and lawmakers remain committed to protecting it, especially when the speech in question challenges authority.