Free Speech

Protests: Enforce the Laws on the Books Before Writing New Ones

Every time there is a crisis, the pressure is on legislators to do something about it. Recently the crisis has been protests. In the wake of violent protests, the burning question is: what can be done to avoid similar incidents in the future?

While citizens may say “there should be a law about that” this instinctive reaction does not lead to limited government. In fact, the resulting multiplication of laws leads to the growth of the bureaucracy and makes it increasingly complex for the average citizen to understand the law.

It is a testimony both to the state of society and the state of the law that today one might consult the law to see if it specifically addresses whether it is acceptable to hit a protestor with a vehicle? The default answer on this should be no. It should not be necessary to make a law that specifically addresses this situation. If these incidents are so frequent that laws are necessary to address this matter, then today’s society has a cultural problem that more laws cannot fix.

Nevertheless, several states have recently proposed new laws to deal with the problem of protesters on public roads. While this is a real problem, is a new law really necessary to handle it? One would think that the problem of protesters stopping traffic is not new.

Regardless of their views, the rights of protesters to peaceably assemble and express themselves must be protected. The government’s role in relation to speech must be very limited. The rights to peaceably assemble, express oneself and petition the government for a redress of grievances are checks in place to ensure that the government remains accountable to the people and does not step outside its proper role.

Exercising one’s free speech rights should be easy. It should not be like going to get a driver’s license. The more rules, restrictions, caveats, and forms that are involved in free speech, the less likely people are to exercise their free speech rights. If a bill makes it more complicated to exercise one’s free speech rights, then it should be considered suspect.

So how can one respond to these incidents while continuing to promote limited government? Here is a modest suggestion:

Before considering proposing legislation, ask this question:

  1. “Is this bill urgent and necessary?”

This follow-up question will help determine whether the bill is necessary:

  1. “If the law(s) already on the books had been enforced, would the incident have occurred?”

If the answers to these questions is no, then it is time for state legislators to switch to oversight mode. Hold committee hearings. Bring in anyone who is responsible for enforcing the law or oversees those enforcing the law and ask:

  1. Why wasn’t the law enforced?
  2. Did you receive instructions not to enforce the law?
  3. Is something holding you back from enforcing the law? If so, who/what?
  4. How can we enable you to enforce the laws already on the books?

Frequently, enforcement of the current laws will eliminate the problem.

Consider the example of North Carolina. A quick look at the laws already in place in North Carolina reveals that the state has indeed taken this matter into consideration in the past and taken measures to handle it.

Section 20-174.1 of the North Carolina Statutes says “(a) No person shall willfully stand, sit, or lie upon the highway or street in such a manner as to impede the regular flow of traffic. (b) Violation of this section is a Class 2 misdemeanor.”

If this law is enforced, the issue of motorists and protesters is handled without a new law. A new law that exempts motorists from civil liability if they injure protesters who are on the road without a permit would simply be redundant and perhaps confusing. In fact, such a bill assumes that the law will not be enforced and that protesters will be on the road. Moreover, if the law is not currently being enforced, why would passing another law solve the problem? Why would legislatures continue to fund people and agencies who are not fulfilling their duty to enforce the law?

It is bad enough that laws are passed because current laws are not being enforced, but this type of bill sends exactly the wrong message about free speech. Protesters will be unsure of their safety and more reluctant to protest. Consequently, this proposal chills speech and gives the impression that lawmakers are more concerned about regulating protesters than they are with ensuring the laws on the books are enforced.

Unfortunately, North Carolina is not alone in considering such measures. North Dakota, Tennessee, Minnesota and Indiana have also considered similar measures targeting protesters. Indiana ultimately moved in the right direction by amending its bill to instead urge its “legislative council to assign to the appropriate interim study committee the topic of a unit’s use of law enforcement to respond to a mass traffic obstruction.” This was a positive development in that they decided to study the issue, rather than creating a new problem through poorly considered legislation.

Before drafting new proposals, make sure that the laws already in place are being enforced. It may not be the easy answer. It may not be the most appealing. But it is the right one.


In Depth: Free Speech

Freedom of speech is paramount for the American system of government and American culture. Born from revolution, American society has been created, evolved and progressed based in part, on the First Amendment. More specifically, free speech allows individual’s to use their own voice to ensure “We the People” would control …

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