The Shield of Free Speech

U.S. Rep. Ilhan Omar, of Minnesota's 5th Congressional district.
U.S. Representative Ilhan Omar, of Minnesota’s Fifth Congressional District. Photo: Alex Wong/Getty Images

A telling exchange took place on Friday after the Ilhan Omar dustup in West Virginia. When asked to comment on a poster that was displayed in the Capitol rotunda on “WVGOP Day,” which depicted the Muslim congresswoman beneath a photograph of the World Trade Center on fire, captioned, “‘Never forget,’ you said … I am the proof — you have forgotten,” delegate Dianna Graves invoked the First Amendment. “My issue with what I saw outside has to do with another truly American foundational issue, and that’s freedom of speech,” the Republican said, according to the Washington Post. “So, while I may not agree with everything that is out there, I do agree that freedom of speech is something that we have to protect, even if we don’t agree with it.”

This was a total non sequitur. No one had proposed a law criminalizing the bigoted poster, nor had those condemning it suggested that the people responsible be punished. The outcry surrounding the display was simple: Equating a Muslim congresswoman with terrorism because of her religion was inappropriate, to say nothing of being displayed at an event sponsored by and celebrating the state’s dominant political party.

The Democratic response on Friday held that such conduct should be discouraged not by law, but by informal rules of conduct. “It was Islamophobic … and it was wrong,” delegate Mike Pushkin, a Democrat, said. “We absolutely condemn the kind of behavior that was on display in our own State Capitol,” Mitch Carmichael, the Republican president of the State Senate, added in a statement later in the day, reaffirming dubious GOP claims that the party had nothing to do with the poster. (Pushkin told the Post that no Republican had condemned the poster when it was first brought to their attention.) This is a key distinction: The difference between prohibiting speech through legislation and condemning it as distasteful is whether one has violated the Constitution or simply encouraged better manners. Free speech rights are under attack when laws prohibiting free speech are enacted — not when co-workers suggest that bigotry should be rebuked in their ranks.

It was perhaps inevitable that this distinction would be flattened for political expediency. A smattering of pols and pundits ranging in orientation from centrist to far-right has spent years bemoaning a purported epidemic of anti-speech attacks from the left. Most of their rhetorical energy has focused on college campuses, where bigots ranging from academics like Bell Curve co-author Charles Murray to glorified edgelords like Milo Yiannopoulos and Richard Spencer have been met by student protests. These critics argue that declining to platform bigots threatens American democracy by constricting the marketplace of ideas. “Somewhere along the way, those young men and women — our future leaders, perhaps — got the idea that they should be able to purge their world of perspectives offensive to them,” Frank Bruni wrote of the protesters for the New York Times in 2015.

Matt Schlapp, chair of the American Conservative Union, presented a similar argument in 2017 after his organization invited Yiannopoulos to speak at CPAC. “We think free speech includes hearing Milo’s important perspective,” he tweeted at the time — a perspective, it is worth noting, that included Yiannopoulos’s claims that “birth control makes women unattractive and crazy” and transgender women are actually men “confused about their sexual identity” who pose a threat to children when they share restrooms with them. But as it turned out, CPAC’s willingness to support “free speech” had limits. When video surfaced of Yiannopoulos speaking favorably about adults having “consensual” sex with 13-year-old boys, his invitation to the conference was rescinded. The merits of raping children, it seems, were not up for debate, and rightly so. The message was clear: Some ideas were worth hashing out in the public sphere. Others were considered too reprehensible.

Discriminating between these two categories of idea is reasonable, and much of the response to Friday’s display of Islamophobia consigned it to the category of the forbidden. But it also lays bare the extent to which opposition to prejudice is seen by the right as a threat to free speech. Conservatives invoke the First Amendment when either defending or rejecting bigotry directly would be politically inconvenient. This inclination underscored CPAC’s rationale for inviting Milo Yiannopoulos to speak. It served as a canard for Dianna Graves, who decried Friday’s Islamophobic poster only in the vaguest and most passive of terms — “I may not agree with everything that is out there” — only to assert with confidence that it should nevertheless be protected from censorship.

Graves was joined in her equivocation by House Speaker Roger Hanshaw, who declined to denounce the poster specifically, choosing instead to bemoan “the full sweep of the day’s events.” These are all self-serving claims. Transgender people’s access to public restrooms, which Yiannopoulos railed against in 2017, had become a fault line atop which Republican control of North Carolina rested. Graves and her GOP colleagues had a similar interest in declining to reject Islamophobia on Friday: Their Republican constituents had in 2016 overwhelmingly backed Trump, Islamophobia’s most powerful purveyor in the United States.

But ultimately, and perhaps unsurprisingly, the right’s advocacy for free speech has proven to be in bad faith. Whether or not it protected speech with which it disagreed would be a bellwether for its commitment. Colin Kaepernick was granted no such concessions. When the former NFL quarterback demonstrated against racism by kneeling during the national anthem before NFL games, he and the solidarity movement he sparked were denounced profanely by Trump, who called for the protesting “sons of bitches” to be fired.

Meanwhile, laws criminalizing boycotts of Israel have been implemented in the majority of U.S. states by Republicans and Democrats. Republicans who for years turned a blind eye to Representative Steve King’s white nationalism now insist that Democratic efforts to rebuke Omar for her purported anti-Semitism don’t go far enough. Trump’s latest salvo against free speech targets college campuses. At CPAC, he vowed to withhold federal funding from schools that did not “support free speech” — citing an altercation that had occurred at UC Berkeley during which Hayden Williams, a recruiter for the conservative youth organization Turning Point USA and not affiliated with Berkeley, was punched in the face by an assailant named Zachary Greenberg, also not affiliated with Berkeley.

But facts are immaterial to the Trump administration. Theirs is a fight over who gets to to define the terms of the debate, not one rooted in genuine concern about speech limitations. Meanwhile, their anti-speech inclinations are more than conjectural. Oftentimes, they boast bipartisan support from government officials at both the state and federal levels. But supporters of such measures would not characterize these infringements as incompatible with the First Amendment. On the contrary, most would likely apply delegate Graves’s standard: that this characterization is reserved for people who believe that bigotry should not be given a megaphone.

Conservatives Use Free Speech As a Shield to Defend Bigotry