Free Speech for Me but Not for Thee [Archive.org URL]

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.

In the effort to make campuses more welcoming to historically marginalized communities, colleges promulgated speech regulations that were designed to eliminate hate speech and other communications that members of university communities deemed offensive.

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.

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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.

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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.

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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. Both Texas and Florida have passed sweeping statutes designed to regulate how social-media companies moderate user content. Both laws have been blocked in court.

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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. A school district can and should use caution—and solicit parental input—when introducing sex education into the classroom. In fact, as the Miami Herald reported, instruction on sexual orientation and gender identity “is not currently a part of the curriculum in the state’s kindergarten through third-grade classrooms.” And that’s entirely appropriate.

But prescribing textbooks and lesson plans (which public-school districts have always done) is different from imposing broad, vague bans on the undefined “instruction” of concepts and ideas. As the book bans illustrate, the harsh political reality is already vindicating civil-libertarian concerns.

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The right is now in the process of unlearning liberty. After decades of litigation and legislation, it largely gained what it wanted: a much more free marketplace of ideas. But it is difficult for a commitment to liberty to survive partisan animosity. If you hate or fear your opponents enough, it is hard to resist the siren song of using raw state power to silence their voices.