Conservatives are attacking what they call “cancel culture” for violating their First Amendment right to free speech, so much so that the theme for the ultra-conservative CPAC conference in Orlando last February was “America Uncanceled.”
Everywhere you turn, conservatives are wrapping themselves in the Constitution as readily as they wrap themselves in the flag, but they do so selectively and hypocritically. My right to pray, not yours. My right to bear arms, not yours. My right to vote, not yours. And of course their culture war slogan, “My free speech, not yours.”
And they do it blatantly. This March the Iowa House of Representatives passed a bill that would require annual free-speech training for all teachers and students, because First Amendment. Free speech in school sounds like a good thing. But at the same time the Iowa House passed another bill to ban talking about social justice issues in the classroom, because some speech—threats, obscenity, and trying to make Iowa more mindful and inclusive—just has to be shut down. Iowa’s students and teachers will have free speech, so long as it's conservative speech.
Here’s another example of “my free speech, not yours”: Article Nine of Idaho’s constitution guarantees, “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.” But the Idaho legislature removed half a million dollars from the budget of Boise State University to prevent the school from teaching about diversity, racism and sexism in America. In their view that’s not cancel culture, it’s defending the First Amendment rights of the majority to reject diversity and deny the existence of racism and sexism. But only lefties tell you what you can’t talk about or teach.
“My free speech, not yours” is not a new idea. In 1798, only seven years after the new United States ratified the First Amendment, Pres. John Adams’ Sedition Act banned anyone from criticizing the government—which is to say, his government. Congress passed the act even though Thomas Jefferson and James Madison objected that it violated the First Amendment’s free-speech and free-press protections. The two founders and future presidents published their objections anonymously to avoid a charge of sedition, since federal courts had no problem convicting critics of the Adams administration under the sedition law.
“My free speech, not yours,” became an issue again during World War I. When, in 1918, Iowa Gov. William Harding banned the public use of all foreign languages in the state, he insisted that his action was consistent with the First Amendment’s free speech guarantee. Harding acknowledged that the Constitution protects speech, but, he explained, “this is not a guaranty of the right to use a language other than the language of this country—the English language.”
The First Amendment protects the free exercise of religion as well, but Harding told the Des Moines Chamber of Commerce that “those who insist upon praying in some other language are wasting their time, for the good Lord up above is now listening for the voice of English.”
Both the Sedition Act and Iowa’s foreign-language ban eventually expired. But “my free speech, not yours,” is an idea that doesn’t die. Just last week, a federal appeals court ruled that the speech of a professor at a public university was protected by the First Amendment, but the speech of students might not be.
Here’s what happened. Shawnee State University, in Ohio, disciplined long-time philosophy instructor Nicholas Meriwether for refusing to use a transgender student’s pronouns. This violated the school’s policy against gender discrimination, and a note was placed in the professor’s file. Meriwether sued, arguing that under the First Amendment, he cannot be compelled to say the student's pronouns because he doesn’t believe gender can be changed. Saying the student’s pronouns would also violate the First Amendment’s freedom of religion clause, since Meriwether’s religion taught that there are only two immutable genders.
A district court dismissed Meriwether’s lawsuit, but in a unanimous decision, a three-judge panel of the US Court of Appeals for the 6th Circuit told the professor he could go ahead and sue his school for making him say the transgender student’s pronouns. The court supported the professor’s claim that the First Amendment protected him from compelled speech and it protected his right to the free exercise of his religion—in class.
The court’s opinion further blasted the “orthodoxy” of the university for daring to expect students and staff to behave civilly toward one another. Antidiscrimination rules like the ones in play at Shawnee State are generally seen as progressive, not orthodox, and it's usually conservatives who demand civil behavior in order to squelch student protests. But the Trump-appointed judge who wrote the opinion saw the rules as obstacles to freedom of thought, not ways of encouraging students to feel they are welcome partners in an ongoing search for knowledge.
In its opinion, the appeals court repeatedly supported the academic freedom of the faculty like Meriwether at public colleges and universities to engage freely in matters of public concern, though the court also made clear that teachers in elementary and secondary schools have no guarantee of academic freedom, and it was silent on whether students had any speech rights at all. In essence, the court deployed the First Amendment to invalidate antidiscrimination laws and regulations, deploying free speech for the majority to undercut the speech rights of those who have historically been silenced.
But back to America Uncanceled. As soon as CPAC announced its slogan for 2021, the arch-conservative organization found itself canceling a scheduled speaker whose antisemitic views were known to everyone except the conference organizers. Or they knew about Young Pharaoh’s abhorrent views but didn’t care until his presence on the program hit the headlines. CPAC was forced to boot him without even a thought or a prayer, but that wasn’t cancel culture. Only progressives cancel speakers. CPAC was just doing what was right.
