The Protection of the Exercise of Freedom of Expression
Suppose the right of freedom of expression requires the government to permit speakers to stand on the sidewalk and criticize the government’s foreign policy. And suppose the government does in fact permit speakers to do so.
Has the government fully discharged its duties correlative to the right of freedom of expression, or is there further action that the right requires it to take? Specifically, does the right of freedom of expression require government to take affirmative steps to protect speakers exercising their rights from reprisals by private citizens? More specifically, does freedom of expression require government to spend resources on police protection of, and on prosecutions and injunctive actions against, private parties who seek to intimidate, drown out, or retaliate against those exercising their right of freedom of expression?This issue has arisen in United States Supreme Court jurisprudence only once in any explicit way. In Feiner v. New York,11 a “hostile audience” case, the Court dealt with whether police, faced with a crowd apparently on the verge of violence, could silence the speaker whose speech was roiling the crowd, or could only prevent violence through attempts at crowd control. In a divided opinion, the majority held that the police could silence the speaker. The dissent, however, argued that freedom of expression required the police to make all reasonable efforts to deal with the crowd before taking action against the speaker.[228] [229] Note, however, that all acts by the police (and prosecutors and courts) consume resources. Money, time, and personnel are always finite. Therefore, under the dissent’s approach, the question is what level of resources should be devoted to affirmatively protecting speakers exercising their freedom of expression, either from private acts designed to curtail that expression (such as threats against the speaker), or from consequences caused by the expression that might otherwise justify government’s curtailing it (such as riots or violence against third parties)? Once we see that the question is a resource question, it should be clear that we are dealing with just another Track Two issue.[230] For Track Two cases all deal with the trade-off between values that content-neutral laws seek to promote - aesthetics, safety, redistribution of wealth, property, and so on - and the value of those myriad message-effects that every possible set of Track Two laws will produce. I argued in Chapter Two that the evaluative neutrality principle that lies at the core of any recognizable right of freedom of expression precludes the possibility of a Track Two freedom of expression jurisprudence because it rules out the possibility of weighing the message effects of Track Two laws against the other values those laws promote, or weighing those message effects against the message effects of alternative Track Two laws. The same point applies here. Police sent to protect speakers cannot patrol against burglaries. Extra money for the police budget to protect speakers means less money for schools and hospitals. Prosecution of audiences crowds court dockets and prosecutors’ time. And so on. It is impossible not only in practice but also as a matter of principle to specify the resource commitments governments should make to protect speakers exercising their freedom of expression.[231] As with Track Two cases in general, all that freedom of expression can demand is making sure that what appears to be a Track Two resource allocation decision is not really a covert Track One content-based decision, with government withholding the level of protection it would normally provide because of (unjustified) hostility to the message being expressed.21 III.