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Striking a balance between Fundamental Rights and National Security: The Frailty of First Amendment Protections in the Face of Fear and the “War on Terror”


It is commonly supposed that most, if not all rights and freedoms can be justifiably infringed upon by the state (with proper safeguards against arbitrary infringements). Few would argue against the legitimacy of governments placing limitations on fundamental rights in order to ensure the physical well-being of their citizens and the ultimate safety of the state against internal and external threats. Yet, states must exercise caution when drafting policy and legislation that are rights limiting. They must strike a balance between protecting the safety of the state and their citizens through laws that are rights-limiting, while also safeguarding the rights and freedoms of their citizens. Only by doing so can a state ensure safety and security, while also providing rights and freedoms to its people. Often when situations arise in which the national security of a country is put in jeopardy, state actors, as well as the people, become increasingly willing to have the scale that weighs security against liberty tip in the favour of security. That being said, it is the role of the judiciary in a state to ensure this balance is appropriately and accurately struck, even in the face of hyperbole and a culture of fear. In the context of the United States, the Supreme Court has proven largely ineffective at combatting this fearfulness in the wake of the 9/11 terrorist attacks and the subsequent “war on terror”. Consequently, First Amendment protections have been notably frail in the wake of legislation attempting to mollify the pressures associated with attempting to prevent any future attack as the Supreme Court largely defers to the Executive and intelligence agencies.

STEPHEN ROGERS is finishing his fourth year of an Honours Specialization in Political Sciences at Huron University College in London, Ontario. His research interests are focused primarily on the application of political theory to contemporary political and policy issues. These include the hierarchy and limitation of rights and freedoms, especially in the context of law enforcement and national security, as well as examining the prominence of the "offense principle" in contemporary Western society and university campuses.

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