The tradeoff between civil liberties and security presents complex, difficult issues for our courts, which must attempt to apply long-standing constitutional and precedential principles to rapidly changing technology and contemporary realities. In “Rights at Risk,” Pulitzer Prize winning journalist and author David Shipler discusses some examples of these complex issues, and the unintended consequences that may follow if we are not careful.
Although we tend to think of our freedom of expression rights as absolute, certain restrictions are valid and necessary to a functioning society. The proverbial prohibition against yelling “Fire!” in a crowded mall is an easy example. Others include noise ordinances, defamation laws and copyright protections. A reasonable person understands that such restrictions are necessary and minimally intrusive.
Other examples are far less clear cut. Shipler discusses the small but noisy Westboro Baptist Church, a group that heckles military funerals (and at one point, planned to protest the funerals of the Sandy Hook Elementary School shooting victims) with unprintable slogans, believing that the soldiers’ deaths represent punishment for our society’s increasing tolerance of homosexuals. Local governments understandably want to prevent riots and fights over such protests, but are often unsure of just how they will accomplish this. Some have used roundabout measures such as prosecuting Westboro members for flag desecration (itself a complex issue).
The Patriot Act, enacted with little opposition in response to the September 11th attacks, greatly expanded the ability of law enforcement agencies to gather intelligence within the US. Over time, civil libertarians and others have increasingly decried the Act’s provisions as being harmful to our liberties. DUI checkpoints provide another interesting example. The Supreme Court, in a strange ruling, held that these random checkpoints, in which officers lack anything resembling probable cause, are unconstitutional but should be tolerated, based on “public policy” considerations.
Technological change perhaps presents the greatest challenge, given the speed of change.  In the US, defamation laws require the public “publishing” of the offending statement. If, for example, a person “tweets” a clearly false statement against another, any civil decision could depend on how many followers this person has, the privacy settings of his/her account, etc. The law is, by design, slow to change, and thus cannot keep up with technological progress.
Public opinion is fickle, and courts must remain grounded and be vigilant against succumbing to short-term whims. After the September 11th attacks, studies found that a large majority of Americans, including those belonging to racial minorities, supported the racial profiling of airline travelers. This is especially interesting and concerning, as minority members are themselves subject to racial profiling as drivers. Tolerating despicable and offensive speech is a necessary evil that society must tolerate. The potential harm from trying to restrict hurtful and extreme expression far outweighs the benefits.