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The 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.
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.
To give you a concrete example, here are parts of a speech code I successfully challenged in federal court in 2003: “The expression of one’s beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another” and “no person shall participate in acts of intolerance that demonstrate malicious intentions toward others.”
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. In Citizens United v. Federal Election Commission, the Supreme Court held that the First Amendment protects corporate political speech. In Hobby Lobby v. Burwell, the Court recognized the religious free-exercise rights of an immense chain of arts-and-crafts stores. And in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court held that the state had discriminated against a small bakery when it sanctioned the bakery for refusing to make a custom cake for a gay-marriage celebration.
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.
In one case, a professor was denied a promotion because of his politics. In the other, a professor was forced out of his job after he questioned the scientific research of his colleagues and blew the whistle on unlawful appointments to a state environmental board.
Even now, conservative legal organizations are representing university professors and public-school teachers in cases challenging public-college or public-school rules mandating that teachers use a student’s preferred pronouns. Later this month, the Supreme Court will hear arguments in a case that will determine whether a public-school football coach can pray on the field after games.
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.
Let’s presume that a strong majority of Tennesseans disagree with race-based affirmative action. I disagree with race-based affirmative action. Yet I also understand that there are credible, good-faith arguments in support of the policy, and I also recognize that my position is directly adverse to Supreme Court rulings that, for example, permit public universities to consider race as one part of a “holistic” admissions process.
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.
The Tennessee law also prohibits including or promoting concepts “ascribing character traits, values, moral or ethical codes, privileges, or beliefs to a race or sex, or to an individual because of the individual’s race or sex.” Again, let’s presume that a strong majority of Tennesseans agree and find the contrary argument immoral.
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.
No court has yet ruled on whether the law is unconstitutional. Although federal courts are protective of the free-speech rights of college professors, they’ve taken a much dimmer view of the rights of public-school teachers. States enjoy broad (though not unlimited) authority over public-school curricula. But the fact that a restrictive law might be constitutional does not render it just or wise.
Equality Florida, an LGBTQ-rights organization, and a coalition of students, parents, and teachers have filed suit against Governor Ron DeSantis and the Florida Department of Education, arguing that the law is so broad and vague that it violates the due-process clause of the Fourteenth Amendment, because teachers don’t have fair warning of the law’s true scope.
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.
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.” This tweet, from DeSantis’s spokesperson, is representative:
If you’re against the Anti-Grooming Bill, you are probably a groomer or at least you don’t denounce the grooming of 4-8 year old children. Silence is complicity. This is how it works, Democrats, and I didn’t make the rules.
— Christina Pushaw 🇺🇸 (@ChristinaPushaw) March 4, 2022
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.
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. 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.
Yet censorship is inconsistent with American pluralism. Speech codes and book bans undermine one of the core purposes of American education. 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.