It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [37]
Although time, place, and manner restrictions may seem less severe than content-based restrictions, nonetheless they should not give the government any more license to regulate speech. It still must demonstrate that the restriction on expression is necessary to prevent the violation of another’s natural rights. Let us consider a few examples. If you lived in a very crowded area, would the government be justified in preventing you from blaring extraordinarily loud music at midnight, or at least requiring you to pay “damages” to your neighbors for doing so? Certainly, by playing obnoxious music, you are diminishing your neighbors’ natural right to the use and enjoyment of their property. And over time, if you were habitually noisy, then most likely you would decrease the market value of their property. Thus, although the government could not criminalize this kind of expression, it would be more than justified in making it actionable, or in other words, the basis for a lawsuit.
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But what about restrictions on picketers outside of your house, and not on your property? Assuming you could enter and leave your house just fine and they weren’t being so noisy as to diminish the use and enjoyment of your property, then there would be absolutely no justification for any restriction of their freedom of speech. In what way are your natural rights violated? Although it might be embarrassing, there is no natural right to be free from embarrassment. Does it seem as if they are invading your privacy? Then simply close the blinds. In sum, although it may seem inconvenient and annoying, the protesters’ fundamental liberty to express themselves must prevail.
I was shocked during a trip to see the Redwoods at the Muir Woods in Northern California to find a small, government-mandated “First Amendment Zone” located adjacent to a parking lot and hundreds of yards away from the Redwoods. How effective can environmental speech activists be when they can’t get anywhere near the trees they want to protect? What gives the government the right to restrict our speech like this on our federal park lands?
Where Do We Go from Here?
While the last few decades provided for the removal of many governmental restrictions on our natural right to free speech, it appears as though the War on Terror may halt these best efforts. As we have seen, so often it is fear of insecurity which provides the impetus for restrictions on speech. Under the Patriot Act, for example, the FBI is provided with the authority to write National Security Letters, or in other words, self-written subpoenas and warrants. Moreover, if an FBI agent shows up at your door with a self-written search warrant, the agent may command you not to tell anyone else about the search—not your spouse at home, your priest in a confessional, your doctor, or your lawyer; not even in a courtroom, under oath, without violating the Patriot Act and risking a five-year sentence in prison.
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Furthermore, the Supreme Court recently held that a section of the United States Code dealing with terrorism is constitutional, even though it makes it a crime “knowingly [to] provide material support or resources to a foreign terrorist or organization.”11 Material support or resources refer to “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance,” a near total ban on not just support to a foreign terrorist or organization, but interaction with. Thus, if you were to encounter an individual identified as a foreign terrorist and attempt to