The US court of appeals for the 10th circuit remanded a lower courts decision to uphold a Wyoming statue* with the phrase
What scrutiny has to be applied to statues regulating speech we definitely know is protected (i.e. a panel of judges says “the statutes at issue regulate protected speech”)? What review does this statue have to survive?
I thought speech could only be limited if it wasn’t determined** as protected (sometimes for reasons that have nothing to do with the inherent value or nature of the speech).
*purely for context, the statute at issue prohibits gathering certain types of information (or recording it in a certain way) about public lands if that information could only be gathered from private property, or by trespassing across private property, and provides penalties in excess of existing penalties for standard trespassing.
**determined can mean ‘explicitly declared’, ‘traditionally treated as’, ‘implied by precedent’, ‘can be reasonably considered as’, or simply that it hasn’t been declared unprotected yet. (AIUI speech is protected by default, until it’s declared otherwise.(
Speech doctrine is complicated. Your question is often answered in a semester-long course. But the basic framework is this:
(1) Is the conduct protected speech, such that it is entitled to any First Amendment protection at all? (It might be not speech at all, or it might be speech that isn’t protected, such as obscenity).
(2) A whole bunch of other legal questions, depending on the nature of the regulation and the nature of the protected speech.
The Court of Appeals answered the first question, whether regulation of one who “[c]rosses private land to access adjacent or proximate land where he collects resource data" is a regulation of protected speech. They did not answer any of the other relevant questions in order to determine whether this regulation survives First Amendment analysis.
Strict scrutiny applies sometimes in the speech context, namely, when the government is regulating non-commercial speech on the basis of its content or viewpoint. Other forms of scrutiny apply to other kinds of regulations or infringements upon protected speech. Other standards apply, such as rational basis or intermediate scrutiny, to other circumstances.
Thank you, Shodan, and Richard. I’d heard of that three-pronged test before, but thought they came before declaring something protected speech (i.e. if it fails the tests, the speech is protected and can’t be touched). @Channing It’s not a privacy issue. It’s state government trying to prevent activists from gathering data about how public lands are impacted by farming practices and general agricultural activities. Here’s the article I read (which also includes a link to the ruling I quoted in the opening post) Law making it illegal to collect data, photo of open land hangs in balance | Ars Technica
It’s not about your rights as a private property owner. It’s about the rights of a trespasser on your private property. Analogy can be made to the Fourth Amendment. You have no expectation of privacy if what you’re doing can be seen from a public place - but if the police go somewhere (without a warrant) that an ordinary citizen could not go and observe something illegal, they have conducted an illegal search.
So what protection do you have against free speech then? If I peep in your window (illegal trespass, whatever) and then report that you are enjoying being urinated on by Russian hookers, and it’s true, can you really get an injunction prevent me from broadcasting the fact to the world? (IIRC the Streisand Effect was so named because Barb wanted to stop helicopters from taking photos of her house and posting them on the internet… today she’s more famous with the younger generation for that than for “People”)
Strict scrutiny handles all basic rights questions quite well. You cannot use your rights to harm others directly and substantively. Laws can be passed to punish this kind of behavior. What you can’t use the law to do is restrict basic rights for nebulous purposes, which legislatures often try to do.
One example I can think of where harming someone with truthful information is to find accurate personal medical information about a person and publish it. You’ve violated a person’s privacy (especially per HIPAA) and there could be a number of negative repercussions toward the victim. Embarrassment of course, or if they have a “scary” disease (think AIDS in the 80s) it could ruin their life.
I can’t see many valid free speech arguments about that.
True, there is an exception for privacy. But that’s why strict scrutiny works. It sets a very high bar for restricting constitutional rights. Any law restricting basic rights has to deal with a compelling government interest, and there must be no other way to satisfy that compelling interest.
So yes, speech can be restricted to prevent actual, substantive harm to individuals, but it cannot protect them from being offended.
Invasion of privacy is a separate tort (or set of torts, rather). In your case, the cause of action would be intrusion upon seclusion or public dissemination of private facts.
IIRC there was a case in England about the fellow who ran Formula One (I think) who was outed in one London tabloid for his weird sex parties. He sued and won because the ruling was his sex habits had nothing to do with his public activities. But then, Britain has pretty much the most restrictive libel laws in the free world. Would such speech be banned here? (Could the victim get an injunction against publishing it - prior restraint?)
No, it’s VERY hard for the government (and thus a court) to prevent speech before it happens. That’s walking right through the free speech minefield.
Fortunately, after the speech has been made, government can take corrective action against the speaker and related parties (including a prohibition against further broadcasting or repeating the speech).
However, even after-the-fact action can’t discourage lawful speech (commonly called a “chilling effect”).
One thing to remember when talking about free speech and related issues is that the relevant amendment only applies to GOVERNMENTAL action. Private citizens and businesses can act however they choose (within law).
In the UK, there’s something called a “super injunction” which AIUI can prevent somebody from broadcasting defamatory material.