We Should Allow Public Comment Before Journalists Can Exercise 1st Amendment Rights


The reliably left-wing Grand Forks Herald editorial board poo-poos the idea that “extraordinary places” regulations passed by the State Industrial Commission would place unfair delays on the development of privately owned property.

The point here is not that North Dakota should zone the “extraordinary places” being considered by the Industrial Commission (and written about by two commission members in nearby columns).

After all, nothing that the commission is considering would ban development in any way.

Instead, the point simply is to remind the commissioners that private-property rights are not absolute.

The editorial refers to this column by Commissioner Doug Goehring in which he writes: “I acknowledge the importance of these locations to others and hold that all land in the state is precious; however, private landownership is a right that must not be infringed upon.”

This column by Governor Jack Dalrymple, the as yet publicly undecided swing-vote on the Industrial Commission, really tells us nothing new.

The regulations being proposed (which you can read here) require additional regulatory scrutiny for oil permitting around a list of specific “extraordinary places” and “Any other areas or geographical formations the director deems appropriate.” Among these additional regulatory hurdles are a requirement for public comment.

The Herald finds that a not-at-all-unreasonable infringement upon private property rights. No joke. The headline for the editorial is, “Can’t fault proposal’s mild infringements.”

So, with that in mind, let’s propose a mild infringement upon the Herald’s 1st amendment rights. Given that the act of journalism can have major impact on society, I propose that we develop a list of “extraordinary topics.” When the Herald or any other news outlet feels the need to write a story or editorial comment in the area of those topics (or any other topic a government bureaucrat deems appropriate), the story/editorial should be submitted to a group of state agencies and posted online first for public comment.

Then we can all decide whether or not it’s appropriate for the Herald to exercise their 1st amendment rights in that fashion. And if we can find the right sort of judges, maybe we can allow the public commenting periods to become weapons of delay, dragging out the publication of any controversial bit of journalism or comment through a heckler’s veto.

Because, as opinion editor Tom Dennis writes so cavalierly in his editorial, 1st amendment rights like property rights “are not absolute.”

Of course, Dennis and others would scoff at this proposal. Such a proposal would be unconstitutional, they’d say, and an unfair burden on their ability to exercise their freedom of the press. And they’d be right, of course, though why they can’t see the same as being true of this arbitrary regulation of private property development is beyond me.

But then, it’s easy to be cavalier about other people’s rights. After all, as Mark Twain wrote, “Nothing so needs reforming as other people’s habits.”

By the way, if you think this is just about oil development, think again. Former state legislator, and Bismarck director of the Landowners Association of North Dakota, Dwight Wrangham points to where this door could lead if we open it:

“If they start with having to do this for drilling an oil well or a gas well, for instance, how much further is it to the point where if a farmer wants to erect a grain bin that he will also have to go through a comment period which will probably be dominated by special interest groups,” Wrangham said.