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Essay on Freedom of Speech-The Patriot Act and the Influence of Sept. 11, 2004
Current proposals and new practices and policies will certainly have an effect on the freedom and privacy of travelers. Closely related to this is the possibility that racial and ethnic profiling will be tolerated in practice (even if profiling is not considered right in principle) in measures aimed at ensuring the safety of travelers and in initiatives to investigate terrorism.
A major question is the extent to which citizens' rights of privacy will be challenged by new measures of surveillance aimed at preventing or investigating acts of terrorism. A critical issue in this regard is whether such surveillance will be conducted very broadly or whether it will need to be justified on the ground that it is aimed at specific targets in clearly defined circumstances. Whatever the case, visitors to the United States and immigrants who are not citizens are likely to be even more affected by these measures than U.S. citizens.
The evolution of the right to free speech comes by way of the Due Process Clause has significant implications for all three dimensions of First Amendment immunity. Most obviously, the contrast between the text of the First Amendment and that of the Liberty Clause affects the first dimension, specifying the type of harm against which protection is afforded. While the First Amendment protects only against lawmaking by Congress, the text of the Liberty Clause extends to censorship by state and municipal governments, as well. The textual differences between the two provisions can also explain an expansion of the third dimension, identifying the category of behavior protected. The breadth of the interests and principles evoked by the term "liberty" extends far beyond the area of political debate, or indeed, the field of oral and written expression, to encompass the kinds of expressive conduct that now enjoys First Amendment immunity...........
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