(L) Protesters at Chicago’s Daley Plaza. (R) The Chicago Symphony Orchestra. (Photos credit The Weekly Opine)

Free speech balancing act

Although it doesn’t appear until the second paragraph, “the pursuit of happiness” is a key maxim of the Declaration of Independence. And free speech is a pillar of the United States Constitution. The first of ten amendments contained in the Constitution’s Bill of Rights, the First Amendment has been in place since ratification in 1791 and introduces the idea “freedom of speech.”

The First Amendment is a bedrock, arguably the cornerstone of freedom and democracy. However, because of its lofty standing, we are often unwilling to employ basic reasoning when looking at the application of the First Amendment. (This same blind spot occurs – much more severely – during arguments over the Second Amendment right to bear arms). For example, does free speech take precedent over the pursuit of happiness? Or, in a chicken or egg scenario, is the pursuit of happiness prioritized, considering it appeared in the 1776 Declaration of Independence, 15 years before free speech was enshrined in The Constitution?

Unyielding proponents of the First Amendment unfurl it effortlessly, like a blanket laid on one’s bed at the onset of cool weather. Say what you will, whenever you will, because the First Amendment’s free speech has you covered. Whereas the Second Amendment is twisted like a carnival pretzel to fit simple-minded arguments vouching that guns, including assault rifles, are A-OK, the First Amendment mostly fits like a tailored suit. (For the record, I firmly believe in free speech protections. But like anything, there is room for situational common sense, as outlined below.)

Time and places

The First Amendment says nothing that restricts the time (daypart) that freedom of speech may be exercised. Most of us presume freedom of speech does not expire at midnight.

A year ago, following a spring semester of unrest that featured nationwide student protests and encampments decrying genocide in Gaza, Indiana University created an Expressive Activity Policy. A controversial point (later rescinded) was the policy restricted campus protests to the hours between 6am-11pm. Free speech advocates were appalled, arguing the policy stripped away protester’s First Amendment-protected right to free speech between 11pm-6am.

(L) Snipers on the roof of the Indiana University Memorial Union. (R) Snipers on top of the ICE facility in Broadview, Illinois. (Photos credit The Weekly Opine)

While I wholeheartedly believe in free speech, I generally agreed with IU’s policy, although it was vague regarding what constituted protesting. (For example, if students exchanged emails at 3am about Gaza would that count as breaking the no protesting overnight policy?) Common sense says students should not be protesting in the wee hours of the morning. I’d bet most of the students’ parents would be upset to learn their child was on the streets protesting after midnight.

IU’s policy – revised to add clarity and eliminate the time restriction – does not take away free speech. It provides reasonable guidelines that protect protesters, and non-protesters, and the policy protects university property.

During the 2024 Democratic convention in Chicago, protesters, who’d been jonesing for action in the weeks leading up to the convention, were correctly provided a confined but ample space to protest. This was done so protesters would not disrupt convention attendees’ right to safely participate in the convention. (I’m guessing convention protesters probably wish Kamala Harris had won the election. I talked to several protesters who were not voting for Trump or Harris. That uninformed stupidity helped hand us the burgeoning fascist hell we now live in.)

Free but not happy

Broadview, a village of 7,900 residents, is normally pleasant and quietly unassuming. But since late summer the village has been thrust into an unwanted spotlight. Helicopters circle overhead in the early morning and at night. Local and national news media swarm on-scene, cameras trained on peaceful protesters and overly aggressive ICE agents itching for a fight. Each week, encounters between ICE and peaceful protesters become more flammable. ICE, some of them straight up thugs, appear to have been coached to escalate tensions, using tear gas, pepper bullets, and flashbang grenades against protesters. Some ICE personnel now carry military-style rifles.

Broadview, Illinois looks like small towns all across America. (Photo credit The Weekly Opine)

I’ve had occasion to talk with Broadview’s mayor twice, including a few weeks ago at an event honoring a local food pantry. Mayor Katrina Thompson just instituted a policy that’s akin to the expressive policy guidelines (subsequently dropped) that limited protest hours at IU. Prior to initiating the new policy, Mayor Thompson wrote a letter to Homeland Security expressing dissatisfaction that ICE is waging war in Broadview. Mayor Thompson’s new executive order restricts protests at the ICE detention facility. Protesters are welcome between the hours of 9am-6pm. Immediately, free speech advocates complained loudly that Broadview’s new policy stripped away their free speech rights.

My view is the mayor is not taking away the people’s right to free speech. She is, however, protecting tax-paying Broadview residents, and businesses. Unquestionably, the people of Broadview have been negatively impacted by ICE’s presence and accompanying protests. Near-daily clashes between ICE hoodlums and peaceful protesters, along with the din of helicopters overhead and teargas wafting into their neighborhoods, requires intervention by Broadview officials. “I always support the First Amendment right to peacefully protest,” said Mayor Thompson. “But I must also balance [free speech] rights with the safety and well-being of residents and businesses.” (And, I would add, their right to pursue happiness.)

No one is losing their free speech rights. During the timeframe when they cannot protest at the Broadview ICE facility, protesters can use social media or send email or make phone calls to discuss the situation and rally support. As the mayor pointed out, most protesters get to go home, away from Broadview and the increasingly violent confrontations at the ICE facility. Broadview residents cannot run away and can barely hide from what has descended on their village.

(Think of it this way: you have the right to eat at a public restaurant. But, if the restaurant is closed, you can still eat at home. Similarly, you have the First Amendment right to protest. But, if the protest area has limited hours, you can still protest from home by employing electronic media.)

David Hudson is a fellow of the First Amendment with the Freedom Forum, a leading defender of the First Amendment. Hudson writes, “people do not have unlimited right to protest on public property at any hour of the day or night.” Hudson says government officials can restrict the time, place and manner of speech in any public place.

I wish I could predict that things would simmer down as the calendar turns from our steamy, hot summer to the cool air of fall. But the government appears intentional in its desire to start an inferno.

My fingers are crossed for peace.

AMENDMENT PRUDENCE