Free Speech for Me but Not for Thee

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he American right has lost the plot on free speech. The passage of Florida’s House Bill 1557, which bans “classroom instruction” on “sexual orientation and gender identity” in kindergarten through third grade and in a manner that isn’t “age appropriate or developmentally appropriate” in all grades, K–12, is merely the latest in a string of what the free-speech-advocacy organization PEN America has called “education gag orders” that have been proposed by Republicans and passed by red-state legislatures from coast to coast.

As the Republican Party evolves from a party focused on individual liberty and limits on government power to a party that more fully embraces government control of the economy and morality, it is reversing many of its previous stances on free speech in public universities, in public education, and in private corporations. Driven by a combination of partisan animosity and public fear, it is embracing the tactics that it once opposed.

To understand the transformation of Republican legal priorities, one need not turn back the clock very far. For more than 20 years, the dominant conservative mantra in education could be summed up in two words: free speech. The reason for the emphasis on free speech was crystal clear—college campuses had enacted speech codes at a breathtaking rate.

Although the impulse behind these codes was virtuous, their legal application was profoundly problematic. University speech codes tended to possess three salient characteristics. First, they were aimed directly at the suppression of words and ideas. Second, they were usually broad and vague, leaving teachers and students with little guidance as to the law’s true meaning. And third, they typically relied on the subjective feelings of community members for enforcement.

For students of the First Amendment, the problems with this language were obvious. What is an “act of intolerance”? How does one define provocative speech? The speech code did not say. A robust marketplace of ideas simply cannot exist if my free-speech rights end the instant another person feels offended by my words.

A speech code doesn’t have to be illegal to be problematic. Private universities have broad authority to regulate speech (the First Amendment protects citizens only from government censorship, not from private regulation). But speech codes are antithetical to the mission of American education, a mission that the Supreme Court has described as preparing students “for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”

When I was president of the Foundation for Individual Rights in Education (FIRE), a nonpartisan civil-liberties organization, we launched a project that evaluated the speech policies at hundreds of colleges and universities. We found that more than 70 percent had one or more policies on the books that violated clearly established First Amendment jurisprudence, thus earning what we called a “red light” rating.

To address the crisis, FIRE and other groups launched a joint speech-code-litigation project. We deployed teams of lawyers across the country to challenge unlawful policies. We never lost on the merits. Every policy the courts considered, they struck down, regardless of whether the judges were Republican or Democratic appointees.

Around the same time, conservative activists attempted to pass legislation that would open up campuses to free expression. The combination of litigation and legislation proved remarkably successful. The percentage of campuses with red-light speech codes has dropped for 13 consecutive years, and in 2021 it reached an all-time low of 21.3 percent.

As campus-free-speech litigators were winning case after case, the effort to protect corporate expression from government regulation was enjoying a similar run of success.

Conservative efforts to protect free speech extended to public employees as well, including public-school teachers. My last two significant cases before I became a full-time journalist were successful lawsuits on behalf of public-university professors who had faced reprisal and retaliation for their protected speech.

But here’s the reality of the First Amendment: No viable constitutional doctrine declares “Free speech for me and not for thee.” Every single free-speech win for a conservative corporation or individual is also a win for progressive liberty. Each and every First Amendment case mentioned above expanded the zone of American freedom.

That was the problem. It turns out that all too many Republicans want to maximize their own freedom and minimize their opponents’. Why? For many of the same reasons advanced by the architects of campus speech codes: Some ideas are allegedly too dangerous to be shared.

And that brings us back to the education gag orders. According to the PEN America database, more than 100 pending state bills would limit or constrain free speech in public education. The bulk of these bills attempt to regulate speech regarding race. Framed as “anti–critical race theory” bills, they typically purport to ban the instruction or inclusion of certain “divisive concepts” in public-school classrooms, in college classrooms, and sometimes in public employment or government contracting.

The language of the bills varies, and they often target concepts that are alien to CRT, but they typically share the goal of suppressing ideas that Republicans dislike. Make no mistake, some of those ideas are truly bad. Some of the statutory language is specifically aimed at speech so vile (for example, the idea that “one race or sex is inherently superior to another race or sex”) that, if uttered in certain contexts, it could constitute a civil-rights violation. But other prohibitions are far more troublesome even if you agree with the law’s underlying sentiment.

Let’s take my home state of Tennessee’s anti-CRT law, for example. It declares that a public school cannot “include or promote” a number of “concepts,” including the concept that “an individual should be discriminated against or receive adverse treatment because of the individual’s race or sex.” Many forms of affirmative action arguably meet that definition.

I don’t want a teacher to worry that she has to be exceedingly careful about how she includes arguments for affirmative action in a class while giving free rein to arguments against it.

So should teachers strike the following from course materials? “Whites, it must frankly be said, are not putting in a similar mass effort to reeducate themselves out of their racial ignorance. It is an aspect of their sense of superiority that the white people of America believe they have so little to learn.” Is that “CRT”?

No, it’s Martin Luther King Jr. in Where Do We Go From Here: Chaos or Community? No state statute should make teachers think twice before including King quotes in a course. In fact, the King quote illustrates that what legislators ignorantly call “CRT” are often the exact arguments that have dominated American race discourse for generations.

I could continue, going through state after state, pulling similar language from dozens of bills and statutes.

Florida’s H.B. 1557 suffers from each of the classic flaws of a speech code. On its face, it’s aimed at speech and ideas regarding “sexual orientation and gender identity.” Key terms such as instruction and age appropriate are left undefined, which leaves teachers uncertain about the law’s scope. And it explicitly grants a parent the right to sue a school district if his or her “concern” is “not resolved by the school district.”

To consider the potential breadth of the law, imagine that a young student asks a teacher why his or her classmate has two mothers or two fathers. If the teacher responds with a factual, value-neutral response, is he opening his school district to litigation? After all, answering classroom questions, even when not directly related to the curriculum, fits within the plain meaning of the term classroom instruction.

Educational gag orders represent only part of the right-wing censorship wave. On Thursday, PEN America issued a report detailing “1,586 instances of individual books being banned, affecting 1,145 unique book titles.” The group’s count includes “removals of books from school libraries, prohibitions in classrooms, or both, as well as books banned from circulation during investigations resulting from challenges from parents, educators, administrators, board members, or responses to laws passed by legislatures.”

And if we leave the world of education, red-state legislatures are now passing laws regulating corporate speech.

Compounding the free-speech challenge, the online right directs immense vitriol at those conservatives who dissent from the culture of censorship. Most notably, social media filled with claims that anyone who disagreed with the scope and wording of H.B. 1557—even if they agreed that young children should not receive instruction on sexuality—was a “groomer.”

Grooming, however, is a word with a meaning, specifically referring to using “manipulative behaviors” to gain access to victims. While activists are trolling online—knowing full well that they’re abusing the term—they’re also connecting with the language of the QAnon conspiracy theory, which is based on the claim that gangs of pedophiles have infiltrated the highest reaches of American government. Accusations of pedophilia or grooming can be deadly serious, and they’re directly related to violence and threats of violence across the nation.

To decry the right-wing wave of censorship is not to declare that “anything goes,” especially when it comes to the education of young children.

In my own school district, a group called Moms for Liberty filed a formal complaint under the state’s anti-CRT law challenging the inclusion of Ruby Bridges Goes to School: My True Story and Martin Luther King Jr. and the March on Washington in the young-elementary curriculum. It also objected to the famous Norman Rockwell painting The Problem We All Live With, which depicts Bridges guarded by law enforcement as she courageously desegregates New Orleans’s schools.

Those books and that painting aren’t CRT. They depict history, but that history is offensive to some local parents, and in the state’s expansive anti-CRT law, they perceived a legal hook for their complaint.

The right is now in the process of unlearning liberty.

We send our kids to school not just to learn reading, writing, and arithmetic, but to learn how to be citizens in a liberal democracy, and a core value of that democracy is a commitment to free speech—for me and for thee.

I feel like conservatives and progressives have both become hypocritical on this whole free speech issue, because decades ago, it was the progressives who kept wanting free speech and the conservatives trying to shut it down. No both sides of have flipped and become each other on the issue.

So I feel there is hypocrisy on both sides.

Unfree speech is when you face 15 years in a russisn prison for calling it a war, rather than a special operation.
Or facing a sentence for talking about homosexuality in an educational context.

Because it is not like Russia does not make it acceptable. The whole idea is to stop the censorship trend before it gets to that point.

French's issue with free speech as it applies to university campuses, public workplaces is not the intention but in the legal application.

The idea that wokeness can be weaponised against those exercising free speech.

There are two things required here
1. demonstrable intent by the perpetrator to cause harm
2. A flexible legal system that is able to discern/distinguish point number 1

My feeling here is that French's dilemma is ultimately not with the progressives who want to create a level playing field (as much as is possible?) but with the legal system.

The right/conservatives conveniently bypass the legal structures and attack those trying to advance social equality by using the consequence of my point number 1 (also attempt to vilify or attack vulnerable people) as somehow taking away the perpatrators right to be karens/dickheads.

Over on the home page, J.J. McCullough has penned a piece urging a “compromise on transgenderism,” but as I read it, this proposed compromise looks a lot like capitulation. While J.J. rightly notes that the Left has overreached in its “effort to strong-arm sweeping social change as a flex of their power,” he asks conservatives to essentially abandon their central argument and accept the radical left’s premise that a man can be a woman or a woman can be a man.

I can acknowledge that gender dysphoria is a “persistent aspect of humanity,” but I will not concede that gender dysphoria trumps biology, and I don’t think our culture should cease efforts towards “ending” the dangerous notion that men or women should amputate healthy organs in the quest to sculpt their bodies to become something they’re not.

If Black Lives Matter were conservative, it would already be one of the most discredited and despised movements in American history. Can you imagine the elite Left’s reaction to a conservative movement built on a founding lie that has incited riots, inspired shootings of police, and correlated with an astounding and deadly increase in violent crime in America’s major cities?

It’s the latter point that will leave the most enduring legacy. Today the Wall Street Journal reported that 16 of the top 20 cities in the United States have endured year-to-date increases in homicide, with Chicago’s murder rate reaching levels “not seen since the violent drug wars of the 1990s.” And this increase comes after 2015’s troubling increase in murders. Together, the 2015 and 2016 crime spikes have left hundreds of black men dead in the streets, with women and even children victimized by stray bullets.

Rarely have I seen more good people hoodwinked by a slogan, unaware of the radical and destructive organization and activists that lurk beneath. As a declaration, Black Lives Matter is simple, unarguable truth. As a movement, it’s poisonous.

Well-meaning white Christians, eager for racial reconciliation, have flocked to its banner. White progressives, suckers for every radical black movement, celebrate its leaders. They don’t know or don’t care that the organization proclaims itself to be “committed” to “disrupting the western-prescribed nuclear family” and calls cop-killers such as Huey Newton, Michael Finley, Ralph Goodwin, and Charles Hill its brothers.

#related#Black Lives Matter is one of the founding churches of the new religion of anti-racism, a secular faith that views every significant event or trend in the United States through the prism of race, and seeks to remake the nation from the ground up to purge it of its historical sins. Oddly enough, when boiled down to its essence, the new religion of anti-racism looks a lot like the older religions of Marxism and socialism, complete with hostility to capitalism and a destructive rejection of Judeo-Christian moral norms. Black Lives Matter just changes the pretext for revoulution.

On the right it often seems that if we can effectively rebut the radicals, we act as if our rhetorical work is done. Debunk critical theory, reject various definitions of systemic racism, and then move along. Back to business as usual (with the conventional and obligatory “to be sure” paragraphs noting that a few racists still haunt American life).

As for the left? Well, one of its principal and most prominent recent projects about American history actually tried to claim that the advent of slavery into the American colonies represented the “true founding” of the United States of America. Moreover, the relentless intolerance spawned by the “Great Awokening” is driving even mainstream progressives out of (formerly) liberal institutions. Illiberalism is on the rise, and much of that illiberalism is rooted in a radical, quasi-religious anti-racist ideology.

Then the dysfunction is compounded by the fact that in the world of journalist and academic racial discourse, the definition of words themselves is up for debate. “Racism” is a contested term. “White supremacy” is a contested concept. And who the heck even knows what “systemic” is supposed to mean?

First, contrary to the revisionists, 1776 still represents the “true founding” of the United States of America.

I've evolved. In the not-so-distant past, I held a view that has since proven to be oppressive, a view of the law and culture that I now see as stifling the rights of others and damaging the fabric of our families and our democracy.

I supported same-sex marriage.

The year was 2004, and I was a partner in a large commercial law firm. Despite working mainly in commercial, contract litigation, I’d cultivated a constitutional practice and represented a number of Christian ministries. So, when the Massachusetts supreme judicial court legalized gay marriage, a number of fellow Christians asked for my thoughts. And in a January 2004 op-ed in our local newspaper, I shared them.

While I can’t find the full piece online anymore, this excerpt should give you the flavor:


I''ve evolved. In the not-so-distant past, I held a view that has since proven to be oppressive, a view of the law and culture that I now see as stifling the rights of others and damaging the fabric of our families and our democracy.

I supported same-sex marriage.

The year was 2004, and I was a partner in a large commercial law firm. Despite working mainly in commercial, contract litigation, I’d cultivated a constitutional practice and represented a number of Christian ministries. So, when the Massachusetts supreme judicial court legalized gay marriage, a number of fellow Christians asked for my thoughts. And in a January 2004 op-ed in our local newspaper, I shared them.

While I can’t find the full piece online anymore, this excerpt should give you the flavor:

Unfortunately, the conservative argument against gay marriage often reeks of hypocrisy. Our society stopped viewing marriage as a sacred (God-ordained) institution long ago. Since the invention of no-fault divorce laws, divorce rates have skyrocketed. Now, almost half of all marriages end in divorce.

I continued
For those who believe gay marriage is morally wrong for Biblical or other religious reasons, this decision changes nothing. Churches can still speak out against sexual immorality and can still choose not to perform gay weddings. The gay couple down the street in no way makes our own straight marriage more difficult or challenging, nor can any decision of any court of law change the definition of marriage in the eyes of God.

I could not have been more wrong. Indeed, this sentence — “For those who believe gay marriage is morally wrong for Biblical or other religious reasons, this decision changes nothing” — may have been among the most inaccurate predictions in the history of punditry. As recent history decisively demonstrates, if you believe gay marriage is morally wrong, virtually everything is changing.

It’s important to understand that this wave of coercive intolerance is not mere aberrational excess but the natural and inevitable byproduct of grafting same-sex relationships into an institution that is a key building-block to civilization itself. Even in the face of strong sexual-revolution headwinds, our law and culture continue to not only protect marriage and incentivize marriage, it is still seen by hundreds of millions of Americans as the ideal family relationship. In other words, by grafting same-sex relationships into marriage, activists want their relationships to enjoy all the legal and cultural protections marriage has built up through millennia of human experience. To oppose “marriage” is to oppose civilization.

But...the current attempt in 35 states to ban CRT does violate free speech.
https://wusfnews.wusf.usf.edu/education ... ech-rights

So based on the law, French doesn't really have a leg to stand on.

[
French agrees with you that these laws violate free speech both constitutionally and in the broader colloquial way "free speech" is used. In the column linked in the OP he is calling out his fellow conservatives for being rank hypocrites.

Well if there was more free spreech with less rules, do you think it would be a good thing in the sense that it would teach people to have thicker skins, especially since peoples' skins seem to be gettting thinner nowadays?

Well if there was more free spreech with less rules, do you think it would be a good thing in the sense that it would teach people to have thicker skins, especially since peoples' skins seem to be gettting thinner nowadays?

The reason the suicide rate is so high is that young people don't have "thick skins"