The First Amendment protects everyone’s freedom — Nazis, Klansmen, Proud Boys, communists, Christians, flag burners, cross burners, Bible and Koran burners, Jehovah’s Witnesses who won’t salute the American flag, revolutionaries, fat cat campaign funders, Christian student groups, a Jewish high school graduate objecting to a graduation prayer, science teachers, public school students wearing arm bands to protest the war and even an angry 14-year-old who was so mad about being cut from the varsity cheer squad that she posted “F-cheer” on social media.
The First Amendment is nonpartisan. It protects Republicans every bit as much as Democrats, conservatives as much as liberals, “Woke” as well as politically “incorrect” speech.
There is no partisan objection to free speech – although there are plenty of reasons to object to a lot of the hateful speech protected by the First Amendment.
Take this month in Breese, Illinois, when the Proud Boys, a designated hate group tied to the Jan. 6 insurrection at the U.S. Capitol, put up a billboard near the high school. The Clinton County Board would have been violating the First Amendment to take it down, but about 70 people who showed up at their board meeting to exercise their free speech rights, quickly persuaded the company that owned the billboard to remove the Proud Boys’ message – as Molly Parker of Capitol News Illinois reported last week. The United Methodist Church followed up with a $2,100 billboard purchase for a “Hate divides, Love unites” message.
The idea of the First Amendment is to protect the expression people hate. There is no need for a First Amendment to protect popular ideas. The majority won’t outlaw speech it likes. This is why the First Amendment protects all sorts of distasteful speech that makes the majority mad. This includes hate speech, flag burning, cross-burning, Nazi parades, profanity, pornography, violent video games, politicians’ lies, multi-million-dollar contributions to political campaigns, slurs calling police pigs and Christian protests at soldiers’ funerals with worshippers carrying signs saying “God Hates Fags” and “Thank God for Dead Soldiers.”
Nazis can parade through south St. Louis or through Skokie in front of Holocaust survivors. The Ku Klux Klan can wear hoods and robes, burn a cross and promise “vengeance” against ”n……” and “Jews” in a farm field near Cincinnati. A Vietnam protester can walk through a courthouse with a jacket that says, “F- the draft.” Protesters can burn the flag outside George H.W. Bush’s nominating convention. Pornographer Larry Flynt can publish a parody of the
Rev. Jerry Falwell having sex with his mother in an outhouse in order to spoof the Christian majority. The alt-right – and the left for that matter – can post fake news on the Internet to tilt an election – although they may pay the price if they recklessly disregard the truth, as Fox News, Rudy Giuliani and Newsmax discovered after 2020.
Enlightenment values
This moment in our history is an especially appropriate one to celebrate. We’re on the doorstep of the 250th anniversary of the Declaration of Independence in which the nation’s founders declared their allegiance to the core principles of the Enlightenment that the nation still cherishes – liberty, equality and consent of the governed.
It read: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Sure, Jefferson owned hundreds of slaves, the Founding Fathers were all rich men, women weren’t mentioned and had few rights and slavery besmirched the Founding – no matter how badly President Trump would like the Smithsonian to rewrite history so slavery doesn’t look so bad.
The founders even left democracy, equality and free speech out of the Constitution.
But liberty, equality and the consent of “We the people” have survived past the four score and seven years that Lincoln spoke about on the Gettysburg battlefield and have expanded over our history. The United States is the freest country on earth, equality has expanded with almost every passing decade as has the power of the people to give their consent.
The First Amendment rests on the Enlightenment premise, unfolding after the Middle Ages, that truth wins over falsity on the battlefield of ideas. As John Milton put it in the 17th century: “who ever knew Truth put to the worse in a free and open encounter?”
Oliver Wendell Holmes, one of the great Supreme Court justices of the 20th century, put the same idea in the libertarian lexicon of free markets.
“When men have realized that time has upset many fighting faiths,” he wrote in a 1919 dissent, “they may come to believe, even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
One question today is whether the clattering voices of millions of people and trillions of electronic bytes can be sorted into the truth. Does that screen in front of you give you time to think through the Enlightenment values that our Founding Fathers had plenty of time to ponder while holding their quill pens? Are we even reading the words of people or of robots?
Mark Sableman, a media lawyer at Thompson Coburn, has his doubts after litigating First Amendment issues for decades. He remembers how he and others welcomed the birth of the internet and cell phones that democratized speech by putting a printing press in everyone’s pocket or purse. His enthusiasm has evaporated with the avalanche of false news and information flashing across those little screens in bursts of a few seconds that shatter the Enlightenment ideal of contemplative thought.
Rebel to fat cat
About 100 years ago, a news reporter named Frank I. Cobb wrote that, “The Bill of Rights is a born rebel. It reeks with sedition. In every clause it shakes its fist in the face of constituted authority…It is the one guarantee of human freedom to the American people.”
It is a charter to say no – No, I don’t agree with the president. No, I won’t bow to any orthodoxy, religious or political, woke or not.
No, I won’t worship someone else’s god and I don’t want the government to tell me whether or how to worship. No, the government can’t tell me what to think or what to say or view or draw or photograph or read.
For the nation’s first 130 years, the First Amendment was weak. It didn’t even apply to the states at first.
When the Supreme Court began reading power into the First Amendment about 100 years ago, it began by defending those shaking their fist at the government.
At first it protected outsiders. Now it increasingly protects establishment insiders.
By its 200th birthday in 1991, the First Amendment had developed into a powerful shield against government abuse of leftists, anarchists, communists, labor unions, Jehovah’s Witnesses, atheists and non-Christians. It protected the press from government censorship and debilitating libel suits. It protected leftist flag burners and a dissident wearing a “Fuck the draft” jacket into a California courthouse. And it protected little Mary Beth Tinker wearing an armband to school protesting the Vietnam War.
Today’s First Amendment winners are increasingly well-heeled. Corporations won the right to spend an unlimited amount of corporate money – millions, billions – to help their favored candidate win an election. Elon Musk — the wealthiest man on the planet, whose SpaceX company owns two-thirds of all satellites whirling around the earth and whose social media account gives him 200 million followers — spent a quarter of a billion dollars to get Trump elected. That included the highly misleading $20 million “RBG” fund likening Trump’s abortion views to Ruth Bader Ginsburg’s, even though it was Trump’s Supreme Court nominee replacing Ginsburg who provided the decisive vote overturning Roe v. Wade.
Hobby Lobby won a decision based on religious liberty allowing it to refuse to provide contraceptive health coverage for its female workers. Conservative policy groups won an Illinois case blocking government unions from imposing mandatory union fees on non-members. The court has lent a sympathetic ear to bakers and florists who say they won’t serve same-sex couples whose marriages violated their religious beliefs. And human rights lawyers lost their right to counsel foreign clients connected to terrorism about nonviolent conflict resolution.
Gregory P. Magarian, the Thomas and Karole Greene Professor of Law at Washington University and a former Supreme Court clerk, has put it this way: “The court has put much more energy into expanding the free speech rights of politically or economically powerful speakers, while largely disdaining the First Amendment concerns of politically and economically disempowered speakers.”
Justice Samuel Alito is a leader of the shift. Alito wrote the Hobby Lobby decision protecting corporate religious scruples. In addition, his replacement of Sandra Day O’Connor led to Citizens United opening the door to unlimited corporate political spending.
“Justice Alito is passionately committed to protecting rights and interests of people exactly like Justice Alito,” Magarian has said.
“Woke” excesses
“Woke” sensibilities about speech offensive to minorities, women, gays and transgendered people resulted in the censorship of students and academics at some of America’s elite universities over the past decade and played no small role in the outcome of the 2024 election. Trigger warnings singled out speech that might offend or trigger hurtful responses.
In 2023 Scott Gerber, a professor at Ohio Northern University, was a victim of woke speech. He wrote an article for The Cincinnati Enquirer that criticized DEI and it led to his firing.
“Unfortunately,” he wrote in the newspaper column, “because racial preferences are the sacred cow of higher education, well-settled anti-discrimination law is frequently flouted on college and university campuses, including in Ohio. For example, jobs are frequently set aside for minorities and women, and conservative and libertarian white males need not apply, or so it seems. I have heard of faculty searches in which a member of the faculty or administration has stated that his or her school has an open position, but that the position must (not ‘could’) be filled by a minority or a woman. In fact, the faculty hiring process has gotten so out of hand that one law school did not immediately disqualify a minority candidate who recently had failed the bar examination.”
On April 14, 2023, shortly after the article was published, school security – with armed police officers from Ada, Ohio – removed Gerber from his classroom in the presence of students and escorted him to Dean Charles H. Rose III. The dean told he had to either resign or face termination, even though he did not tell Gerber what he had done wrong.
In a 2024 lawsuit, Gerber said that the university was firinghim “based on his unpopular views and his raising concerns about illegal conduct—including racially discriminatory hiring—at the University.”
This year, the university settled with Gerber, reinstated him and allowed him to retire in good standing.
Free speech has especially been underl assault since the Oct. 3, 2023 Hamas terrorist attack on Israelis.
The vignette in the introduction to Harvard’s internal investigation of Anti-Semtism on campus is powerful evidence of its prevalence at the nation’s wealthiest and most powerful university.
The vignette recounts how during the 2023-4 school year an undergraduate recipient of a student fellowship was given the opportunity to make a short speech at a student forum. The Jewish student planned to describe how their experience as a grandchild of Holocaust survivors inspired their career ambitions.
He shared his prepared remarks with a student organizer of the forum. The Jewish student speaker described how their grandfather survived the Holocaust by migrating to the then-British Mandate of Palestine, and ultimately helped tens of thousands of others find refuge in territory that is now part of the modern State of Israel.
The Harvard report relates what happened next: “The [student] directors of the conference pulled me aside and said that I cannot mention my grandfather’s rescue missions in my speech, because his rescue missions involve Israel. Nowhere does my speech mention the current war or Zionism. It is strictly about the Holocaust.
“[The two student organizers] told me that my family’s Holocaust narrative is not ‘tasteful’ and … I asked ‘what is not tasteful?’ [One of the students] laughed in my face and said, ‘oh my God.’ This response was incredibly hurtful and inappropriate. They told me that my family history is inherently one-sided because it does not acknowledge the displacements of Palestinian populations, and I believe this accusation is an antisemitic double standard.”
The Harvard report adds, “According to the student speaker, while the forum organizers eventually allowed the speaker to mention their grandfather’s rescue mission, they insisted that the speaker omit reference to the British Mandate of Palestine as their grandfather’s destination.”
The Harvard report said, “In many ways, this story epitomizes what we heard about the experiences of numerous Jewish and Israeli students at Harvard in the period after the October 7, 2023 attacks on Israel. Some Jewish students were informed by peers, teaching fellows, and in some cases, faculty, that they were associated with something offensive, and, in some cases, that their very presence was an offense.”
The report notes that, “Our work was preceded by a letter from 33 Harvard student groups that held Israel ‘entirely responsible’ for the Oct. 7 Hamas attacks on Israel. The letter, which was made public as the Hamas invasion of Israel was still underway, caught Harvard’s Jewish community in a moment of intense vulnerability and grief and created a horrifying split screen, as community members juxtaposed horrific videos of violence and assault on Israeli civilians, all while encountering media reports in which fellow Harvard community members appeared to be blaming the victims, whose blood was not yet dry, for their own deaths.”
Harvard also investigated anti-Muslim/Palestinian/Arab feeling on campus. It found discrimination against those speakers as well. It concluded that these students felt “abandoned and silenced” and that they saw their speech as less protected than Jewish students’ speech.
It said, “The Harvard Corporation’s decision to withhold degrees from 13 Harvard College graduating seniors, which precluded them from participating in the graduation ceremony — despite a vote of the Faculty of Arts and Sciences to award the degrees — was seen by many as a chilling reminder of the consequences Harvard students can face for exercising free speech and engaging in student activism.” 11 of the 13 eventually received the degrees.
One of the leading organizations fighting against campus speech codes and liberal campus orthodoxy was FIRE, the Foundation for Individual Rights and Expression. It defended Gerber when he was fired at Northern Ohio and led criticism of Harvard’s failure to protect unpopular speech.
Greg Lukianoff, FIRE’s president, wrote an influential 2015 Atlantic story titled “The Coddling of the American Mind” in which he said young people were not prepared for life because the culture of “safe spaces” He also happened on and publicized what became a viral incident at Yale when a student was recorded screaming at a professor about his comments relating to appropriate and inappropriate Halloween costumes.
Now, however, with President Trump threatening hundreds of millions of dollars in fund cutoffs for universities, Lukianoff finds that the tables have turned and he and FIRE have become defenders of Harvard against Trump’s efforts to cut off federal money based on the content of the campus speech – a purpose that is clearly a violation of the First Amendment.
Lukianoff has received pushback from conservative supporters and funders, but says the principles come first. “People care about freedom of speech when it’s their side under the gun,” he told the New York Times. “They don’t care as much when it’s anyone else.”
Put simply, after running a campaign that criticized the First Amendment violations of “Woke” institutions, Trump is now violating the First Amendment rights of lawyers, colleges and media, who often are surrendering their rights without a legal fight.
Magarian, the Washington University First Amendment expert, points out, that far more pro-Palestinian speech was affected than pro-Israeli speech. In fact he says the attacks on pro-Palestinian speech are unprecedented this century.
“The scope of free speech violations against pro-Palestinian (broadly defined) speakers during the Gaza War dwarfs the scope of free speech violations against pro-Israel (broadly defined) speakers,” he wrote in an email. “Actual First Amendment violations have almost universally targeted pro-Palestinian speakers, and in fact I would argue that government attacks grounded in the desire to silence or punish pro-Palestinian speech amount to the gravest concerted attack on First Amendment rights in this century.”
Editor’s Note: Mark Sableman is on the advisory board of GJR.
