The rise in state-level legislation narrowing various elements of freedom of expression around the United States is a very concerning trend.

A great visual representation of this occurrence is this Google Doc, which categorizes 115 bills introduced between 2015 until 2019. After going through the status of each of the bills, I found these results:

Died: 69

Passed: 23

Pending: 17

Vetoed: 6

Ironically in hindsight, many of the bills were presented regarding the criminalization of face coverings prior to the COVID pandemic:

January 2017, HB 1304: “Subjects individuals who commit certain crimes to harsher punishments if wearing a mask.” This bill ended up passing.

February 2017, HB488: regarded masks criminal when used to evade a crime, but died.

August 2017, BR175: was a bill that died but folded into HB 53, which would penalize, “…wearing masks or protective gear…” while in public.

January 2018, HB 2007: bill passed making it a felony wearing a mask to avoid identification during crimes. Passed in direct response to a Trump rally from August.

2019, SB 78: regarding face coverings died, which would create more strict penalties, “…while wearing a mask or facial covering”

These bills either focus on protestors or actual criminals. Protestors and people actively committing crimes appear to be some of the only targets.

In fact, the term “protest” can be found 128 times in the document. Considering that again 115 bills are mentioned on this list, this is staggering. Based on a Word Frequency Counter, the 6th most common word was infrastructure, 7th died, 14th highway, 15th protests, 19 protesters. However, this conclusion isn’t based solely on word frequency analysis. In terms of targeting protestors specifically, this can be seen in more additional cases.

PEN America is an organization dedicated to keeping free speech free. They have acutely been painstakingly keeping track of bills for a while now.

Their very informative article reflects this shocking discovery of legislation being passed as aforementioned. This article states that since 2015, out of 116 proposed bills, “…23 have become law across 15 states. Nearly a third of all states have implemented new regulations on protest-related activity in the past five years.” This group found that, since 2017, the rate of bills passing is 20% – which is significant considering these recent numbers. They also document a recent boom of bills, with 110 being introduced between 2017 and 2019 alone and typically single out protestors.

This has been traced back to the November 2016 American election, where more bills have been planned and sometimes enacted. According to PEN America, they use a strong comparison showing that if you add the years 2015 and 2016 together, only six bills were suggested surrounding protestor rights.

Similar to book bans, these suggested bills clearly have a ‘chilling effect’ in terms of free speech. With threat of strict regulations to possibly be passed, people can be deterred from exercising their rights and it may even discourage protest activity.

The PEN America article “Arresting Dissent: Legislative Restrictions on the Right to Protest” concluded in finding a correlation between, “…the increase in these legislative proposals and the rise of broad-based protest movements in the relevant states,” and reported at times it is made, “explicitly clear that their bills have been proposed with specific protestors in mind.” This is concerning.

Suppression on the right to assemble and speech freely is clearly a violation of First Amendment rights, ever so carefully disguised as a well-intentioned bills. This trend toward restricting protest activity presents a significant shift in how states approach First Amendment protections.

As far as a policy being an appropriate avenue to regulate freedom of speech, this doesn’t seem to work when done. Gooding v. Wilson shows a policy from Georgia that was shot down. This policy had outlawed the use of, “opprobrious words or abusive language tending to cause a breach of the peace,” but this was found to be unconstitutional. Overall, it can be shown that policing language has its challenges.

In 2020, several news organizations faced defamation lawsuits regarding their election coverage and the tension between freedom of the press and accountability came into sharp focus.

The First Amendment provides that, “Congress make no law respecting an establishment of religion, or prohibiting its free exercise thereof; or abridging the freedom of speech, or of the press,” according to the First Amendment to the U.S. Constitution. Additionally, it protects assembly as well as the right to petition the Government for a redress of grievances. Primarily, America prides itself in allowing its citizens to speak freely and extends this protection to news outlets.

However, this protection does not grant reporters an impenetrable shield behind which anything can be said without consequence. Complete and absolute immunity from accountability would be irresponsible and dangerous. Journalists and the organizations they represent hold themselves to certain standards. Writers also have reputations at stake to uphold. Although reputation is not an important value to everyone, editors and peer reviewers aid in screening out mistakes.

It is essential for information to be accessible to the public and responsibly dispersed. Although it is technically alright by law to produce inaccurate information, the social penalties of doing so or the threat of career loss typically prevent this from occurring intentionally.

Considering the First Amendment speaks against censorship of the press, reporters unequivocally have the right to the freedom of expression. Media organizations have standards of writing, as well as codes of conduct. The New York Times, for example, has a Standards and Ethics page which begins with, “The trust of our readers is essential.” Their public ethics handbook outlines specific practices in order to fact-check, verify sources, and discloses conflicts of interest. This requires that reporters have integrity by verifying their information through multiple sources and also ensures distinguishing between advocacy and news reporting. They demonstrate this sentiment through their actions as a company. With an Ethical Journalism Booklet provided for the public to view, it is taken very seriously.

Professionals in the media have stringent standards. The Society of Professional Journalists states the first of four principles for ethical journalism to be, “Seek Truth and Report It,” which goes on to provide a detailed and strict way of writing that reporters must follow. The journalism community’s commitment to truth is evident in these rigorous codes, which hold media professionals accountable for their work.

It’s important to remember what might be thought of as a fact today can be seen as a mistake tomorrow. From nutritional guidelines that shift between recommending and warning against certain foods, there is new information being produced and processed daily. The First Amendment should protect reporters and news organizations to inform the public.

Through the 1990s until current day, issues pertaining to the media v. free speech have graced the courts. Notable cases include:

Grosjean v. American Press Co. in 1936 established that any interference from the government preventing free expression is not allowed according to the First Amendment as it explicitly provides the press with protection. Specifically, this case covers an instance where media was being taxed for its content in Louisiana, which had violated First Amendment rights.

The New York Times v. Sullivan in 1964 finalized a malice standard which, “…is the legal standard established by the Supreme Court for libel cases to determine when public officials or public figures may recover damages in lawsuits against the news media.” This means they must provide evidence that false statements were made while clearly knowing they were incorrect. I believe in the instance of malice there should be no shield for the media, by principle and based on these court proceedings.

The weaponized defamation lawsuit against members of the media is concerning. Even with litigation funding, where court costs are financially backed by private parties, courts take time which in turn takes even more money. This creates a chilling effect on investigative reporting, as the threat of being sued majorly interferes with the natural flow of information. Even if supported for legal fees, news organizations might instead choose silence rather than reporting important stories.

In cases where a news organization is sued for defamation, it has to be proven that the statement is false. If true, that is not defamation. Reputational harm and malice need to be preexisting for it to constitute as a defamation case as well.

Anti-SLAPP, or Strategic Lawsuit Against Public Participation, laws are statutes that have been put in place to lessen the amount of lawsuits used to intimidate another party into not speaking out. These types of tricky lawsuits made to silence others result in court fees and can take considerable time and energy. Anti-SLAPP statutes are in place to protect individuals’ wallets, time, and energy.