Monthly Archives: July 2021

Donald Trumps lawsuit against major social media companies pits freedom of speech squarely against the First Amendment. There can be no doubt that these social media giants are denying the former president his freedom of speech, while also denying his viewers and listeners the opportunity to hear and read what he has to say. But these media companies are claiming that the First Amendment protects their right to deny free speech to those with whom they disagree. Specifically, they assert a First Amendment right to censor Trump and others.

The danger of this new censorship not by government but by private companies that effectively control the marketplace of ideas is precisely that it may well be protected by the very amendment designed to keep the marketplace of ideas open to diverse views. Hence the paradox and the uphill battle that Trump may face in persuading the courts that his non-constitutional free speech right to communicate with his millions of followers should trump the constitutional right of social media companies to censor.

In general, the courts have sided with the private companies and have defended their right to censor speech with which they disagree. For example, in 1974, the Supreme Court unanimously held as unconstitutional a Florida statute requiring newspapers to give candidates the right to respond to negative editorials about them. It ruled that the First Amendment prohibits government from requiring the media to publish anything they choose not to publish.

Under this view of the First Amendment, the government is precluded from interfering with media decisions, even if those decisions curtail the free speech of others. The decision of the Miami Herald to refuse to publish a response to its editorial effectively curtailed the free speech of the candidate and those who were denied the opportunity to read what he had to say in the pages of that newspaper. But the decision of the Supreme Court to not interfere with that editorial decision enhanced the right of the Herald to publish only what it chose to have its readers exposed to on its pages.

Some including me would argue that the Herald was wrong in how to exercise its First Amendment right by refusing to publish the response. But a constitutional right, like that which is contained in the First Amendment, necessarily includes the right to be wrong.

The Miami Herald precedent and those that followed it came long before a small number of social media behemoths assumed so much control over the marketplace of ideas. At least one justice Clarence ThomasClarence ThomasTrump's Big Tech lawsuit: Freedom of speech vs. the First Amendment Supreme Court ruling opens door to more campaign finance challenges Supreme Court declines to take up challenge to eminent domain MORE has indicated a willingness to consider whether these media giants should be treated as common carriers that are subject to some governmental regulations. But media companies are different than buses. The product they sell is public speech and press, which are expressly protected from government regulation by the First Amendment.

The conflict between free speech and the First Amendment arises when these private companies use the First Amendment as both a shield and a sword selectively to censor free speech. The conflict becomes most acute when a small number of private companies are powerful enough to essentially shut down the marketplace of ideas which the First Amendment was designed to keep open to certain views.

The argument for allowing some regulation of these companies is strengthened by the fact that they already are subject to regulations that benefit them, namely Section 230 of the Communications Decency Act of 1996 that exempts them from certain liabilities to which other media are subject. They welcome this positive governmental regulation while understandably opposing negative regulation. But being exempted from some government regulation does not, by itself, turn a private institution into a state actor. Major League Baseball has been granted a legislative exemption from antitrust laws, yet it continues to be treated as private for other purposes.

Congress can, of course, ameliorate the problem it caused when it granted tech platforms such broad, unconstitutional exemption from defamation and other liabilities. It could and should limit the exemptions only to media platforms that do not censor lawful speech that they deem offensive. But the Big Tech companies are lobbying hard against any such limitation, and it's unlikely to be enacted.

The powerful combination of monopoly (or, in this case, du- or tres-opoly) power, combined with its special exemption, have led many Americans to want to do something to change what they regard as an untenable status quo, which they see as incompatible with the spirit if not the letter of the First Amendment. Hence, this lawsuit.

The hard question is whether the proposed remedy giving the government power over private media companies is more dangerous than the disease of too much censorship power in the hands of too few unaccountable media oligarchs. The Supreme Court may have to address that important question if the Trump case reaches it, as well it may.

Alan DershowitzAlan Morton DershowitzGiuliani's suspension from the law is unconstitutional Sunday shows preview: Moderates, Biden reach deal on infrastructure; Chauvin sentenced to 22.5 years in prison We should recognize the progress we've made on discrimination MORE, professor emeritus for Harvard Law School, served on the legal team representing President TrumpDonald TrumpTrump Jr. calls on Manchin, Tester to oppose Biden's ATF nominee Photos of the Week: Trump, fireworks and Kermit the Frog On The Money: Biden fires head of Social Security Administration | IRS scandals haunt Biden push for more funding MORE for the first Senate impeachment trial. Dershowitz is the author of numerous books, including The Case Against the New Censorship, and his podcast, The Dershow, is available on Spotify and YouTube. Follow him on Twitter @AlanDersh.

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Trump's Big Tech lawsuit: Freedom of speech vs. the First Amendment | TheHill - The Hill

I was saddened to read your editorial on free speech and the right to gender-critical views. At what point do gender-critical views swerve into hate-speech? The arguments perpetuated by those espousing these views are often intensely personal, verge on anti-trans and look to deny others their sense of self. In a liberal society, we should of course treasure free speech, but be brave enough to acknowledge the negative impact it can have on marginalised groups and minorities, challenge fear and misinform, and adapt accordingly.James WandBermondsey, London

Thank you for your commitment to freedom of expression, so vital for press and other media reporting of every issue of public interest (Whatever your view on sex and gender, freedom of speech is key, Editorial). It cant have escaped your notice that your statement comes at a time when Hong Kongs independent media is under sustained attack. Preserving the space for discussion of facts, views and opposing views in line with international human rights law is something to be protected by all who wish to continue to live in a democracy.Susan Kemp Edinburgh

As someone who remembers the 1970s, I agreed with William Keegans relaxed attitude to todays wage/price inflation panic (Dont hit the brakes the recovery is barely out of first gear, Business). What no one mentions is house price inflation, which was not an issue in the 1970s but which today may run at 10% a year and is the major distorter of the economy.

I wonder if Keegan, as a Keynesian, agrees with Galbraiths acerbic attitude to the effect, or otherwise, of changes to the bank rate (which attract so much interest but are usually reactive rather than proactive). The great economist said that central bankers wore conservative tailoring, hung out with the affluent (he might have said effluent in todays world) but that their effect on inflation or recession was practically zilch.David RedshawGravesend, Kent

Nick Cohen reminds us that the majority of over-65s in England and Wales voted Conservative in 2019 (Our politics of nostalgia is a sure sign of present-day decay, Comment). But if 61% of us did, then 39% of us didnt, and that includes pretty well all my relatives and close friends of that generation.

Cohen is quite right to criticise the assault on the National Trust for telling the truth about slavery and colonialism. He is also right to deplore the pension triple lock. Its an embarrassment, and he forgot to mention the untaxed winter fuel payment, though I suspect most of us send that the way of whichever charity might most irritate the prime minister. We care, too, about Brexit-related job losses, if only for the selfish reason that we need people to be paying taxes. Finally, we dont have children at school, but we do have many friends and relatives of school age about whose education and future we care deeply.

Yes, were a minority but, at almost two-fifths, a sizeable one. It would be nice if now and again our existence was acknowledged.John FilbyAshover, Derbyshire

In A brush with art history, (Letters), David Prothero recounts his struggle with Laura Cummings guess the painting, and asks if hes alone. Im a retired psychologist who failed art O-level. Im managing to identify a number at first sight and, with a little research, most of the rest. I recommend Workers Educational Association art history classes. The puzzle is now the first thing I turn to each Sunday. Thank you Laura!Kevin SullivanHereford

In his excellent article (From Grenfell Tower to the Metropolitan police, shirking responsibility has become endemic, Comment), Kenan Malik overlooked one feature that has allowed the evasion of responsibility that he describes. He mentions that, when asked by the inquiry if he took responsibility for the failures on his watch, Robert Black, the former boss of the organisation that managed Grenfell Tower, answered Pass. No proper inquiry should have allowed such an inadequate response to go unchallenged. Similarly, on 10 June, Matt Hancock, then secretary of state for health, said to the Commons health select committee that there had never had a national shortage of PPE. It would be harder to evade responsibility if there were more rigorous challenge from the bodies set up to scrutinise and enforce accountability on the part of public figures and institutions.Gavin BrownManuel, Linlithgow, West Lothian

Nobody should be surprised by the news that private hostel providers are failing to meet the care needs of their vulnerable residents (Hostels from hell, Special report).

This is because this provision for homeless people is overseen by housing associations, a sector increasingly organised since the 1980s on a business model. The solution is to restore responsibility to local authorities where standards, affordability and the quality of care can be assured.Dr Charlie CooperNottingham

Your article, We dont need to be cured or fixed: writers speak out on autism, was a manifestation of the privilege that those with high-functioning autism (myself included) enjoy. My autism, by random luck, does not prevent me from taking part in the world of language but there are many autistic people who are utterly unable to communicate, and thus cannot give chatty interviews. Why was there no mention of these voiceless?

To take another example, in the UK, autism is reason enough to deprive someone of their liberty; there are thousands of people whose autism has deprived them of their legal capacity, and who are otherwise detained for their own protection. Do these people not need a cure or treatment, or are they simply to be left to rot?

Like those interviewed, I regard my autism as an asset, but constructing a myth of autistic people as a model minority, based on a self-selecting group of high-functioning individuals, is to erase and marginalise the countless people rendered profoundly vulnerable, incapacitated, imprisoned or dead on account of their autism or consequences stemming from it.Elijah GranetSan Diego, California

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Letters: is it free speech or hate speech? - The Guardian

Free speech on American college campuses has been in a free fall for years. From high schools through law schools, free speech has gone from being considered a right that defines our society to being dismissed as a threat. According to polling, the result is arguably one of the most anti-free-speech generations in our history. The danger is more acute because it has reached law schools where future judges and lawyers may replicate the same intolerance in our legal system.

A recent controversy at Duke Law School highlights this danger. Law & Contemporary Problems is a faculty-run journal that recently decided to do a balanced symposium on Sex and the Law including transgender issues and asked Professor Kathleen Stock of the University of Sussex (who has criticized transgender positions) to participate.

Protests erupted over allowing such intellectual diversity.

The new set of student editors demanded that Stock be removed from the symposium. The faculty board issued a statement explaining the importance of freedom of speech and academic freedom, particularly on a journal that serves as a forum for debates on contemporary issues. Students resigned rather than associate with a journal offering both sides of such issues.

Some legal columnists echoed calls to ban those with opposing views. The legal site Above The Law (ATL) published an article denouncing the faculty for supporting free speech. ATL editor Joe Patrice ran a factually inaccurate tirade against Duke for using academic freedom as a shield for professors to opine and behave in ways that marginalize others.

The ATL criticism of Duke was illustrative of the new anti-free-speech movement that is now taking hold in law schools and legal publications. Academic freedom and free speech are denounced as tools to marginalize others. Patrice sums up why both the student editors and the Duke faculty must be condemned: A vigorous and open exchange of ideas is valuable only to the extent it improves the academic mission of improving the human condition. Is Trans skepticism within that field? It shouldnt be, but here we are. In other words, you are entitled to free speech so long as you cannot be accused of marginalizing others.

While calling for professors like Stock to be barred from the publication for marginalizing others, ATL editors and other writers often stigmatize and denounce whole groups as requiring containment and condemnation. Elie Mystal, who writes for ATL and isThe Nations justice correspondent,for example, lashed out at white society and how he strives to maintain a whiteness-free life.On MSNBC, Mystal declared, without any contradiction from the host, that You dont communicate to [Trump supporters], you beat them. You do not negotiate with these people, you destroy them.

In such campaigns, there is little time or patience with trivialities like free speech.

Mystal was celebrated for his declaration: I have no intention of waiting around for them to try to kill me before I demand protection from their free speech.

Dangerous thoughts are ill-defined beyond being rejected by these writers. Under this approach, free speech becomes like pornography under the famous test of Supreme Court Justice Potter Stewart: I shall not today attempt further to define the kinds of material and perhaps I could never succeed in intelligibly doing so. ButI know it when I see it.

Of course, free speech demands bright lines so that professors are not chilled in what they write or say. However, that is precisely the point. Whether Patrice and others can block the publication of Stock is immaterial. The fact is that most students and faculty do not want to be the subject of such a public campaign. Academics are notoriously risk-averse. They need conferences and publications to advance their careers.

The threat is to lose everything that academics need to be active intellectuals. This is the one-year anniversary of the move to force a criminology professor named Mike Adams off the faculty of the University of North Carolina (Wilmington). Adams was a conservative faculty member with controversial writings who had to go to court to stop prior efforts to remove him. He then tweeted a condemnation of North Carolina Gov. Roy Cooper (D) for his pandemic rules, tweeting that he haddined with six men at a six-seat table and felt like a free man who was not living in the slave state of North Carolina before adding: Massa Cooper, let my people go. It was a stupid and offensive tweet. However, we have seen extreme comments on the left including calls to gas or kill or torture conservatives be tolerated or even celebrated at universities.

Celebrities, faculty and students demanded that Adams be fired. After weeks of public pummeling, Adams relented and took a settlement to resign. He then killed himself a few days before his final day as a professor.

Law schools have seen repeated disruptions of conservative speakers with the support or acquiescence of faculty. CUNY law school Dean Mary Lu Bilek insisted that law students preventing a conservative law professor from speaking was itself free speech. She also insisted that a law student threatening to set a mans Israel Defense Forces sweatshirt on fire was simply expressing her opinion.Recently Bilek actually canceled herself and resigned after she made a single analogy to acting like a slaveholder as a self-criticism for failing to achieve equity and reparations for black faculty and students.

Last year, the acting Northwestern law school dean declared publicly: I am James Speta and I am a racist. He was followed by Emily Mullin, executive director of major gifts, who announced: I am a racist and a gatekeeper of white supremacy. I will work to be better.Such public declarations can fuel demands for more mandatory demonstrations by others or intolerance for those who dissent. At Rutgers this year, the student government ordered all groups to hold critical race theory and diversity programs as a condition for receiving funds. At the University of North Carolina, student Sagar Sharma, who is a student of color, faced a recall election as the first-year class co-president for simply stating that he did not consider an argument between two fellow students to be racist.

Faculty and editors are now actively supporting modern versions of book-burning with blacklists and bans for those with opposing political views. Columbia Journalism School Dean Steve Coll has denounced the weaponization of free speech, which appears to be the use of free speech by those on the right. So the dean of one of the premier journalism schools now supports censorship.

Free speech advocates are facing a generational shift that is now being reflected in our law schools, where free speech principles were once a touchstone of the rule of law. As millions of students are taught that free speech is a threat and that China is "right about censorship, these figures are shaping a new society in their own intolerant images.

For now, the Duke symposium will include the offending article but the resignations and condemnations show why this small degree of diversity in viewpoint is increasingly rare on our campuses.

This is a single (and close) victory for free speech, but make no mistake about it: We are losing the war.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

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The rise of a generation of censors: Law schools the latest battlement over free speech | TheHill - The Hill

OCEAN CITY, Md. (WJZ) Ocean City Police said Wednesday they are aware of the profane-laced flags about President Joe Biden on the boardwalk, but they are considered freedom of speech.

The beach towns police department responded on social media after receiving complaints from people in the area.

Unfortunately, the flags (including the profanity) is considered freedom of speech, the police department tweeted. We share your frustrations with this and are as disappointed as you are.

We support freedom of speech and expression but do not agree with the inappropriate and offensive language used in the sign, the department tweeted. We do not recommend sharing the photos circulating online or taking photos of the flags, as it will only help spread the tasteless message.

WJZ has not found the images of the flags online to share.

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OCMD Police Say Profanity-Laced Biden Flags On The Boardwalk Are Considered Freedom Of Speech - CBS Baltimore

On the campus of NC State in Raleigh, N.C., August 7, 2020(Jonathan Drake/Reuters)

North Carolinas Campus Free Speech Act requires all public universities to include in their freshman orientation programs information about free speech on campus. How well are they doing?

For the most part, not very well, argues Shannon Watkins in todays Martin Center article.

She writes, Unfortunately, many of the schools free speech sections are rather bleak. Rather than providing students with substantial information and guidance, the following schools include a very brief nod to free speech:

At Appalachian State, students are told: As a public university with an open campus, you cant drown out the speech of someone you dont like. If there are issues, you can report them to the office of student conduct. If you want to learn more about freedom of speech, come to the events scheduled around Constitution Day this fall. That is hardly a ringing endorsement of free speech if you hear something you dont like, complain to campus officials.

Students at NC State are encouraged to stand firmly against intolerance and hate which many students will take to mean that they dont need to make reasoned responses to ideas they dont agree with.

Several of the universities didnt bother responding to the Martin Centers request for information that state law requires of them.

Not one of the UNC institutions took advantage of excellent free-speech materials available from the Foundation for Individual Rights in Education.

Watkins concludes, if the institutions are serious about their core missions of discovering truth and furthering knowledge, it is in their best interest to inculcate in their students a respect for and understanding of free expression. Yes, and they arent doing a good job of that.

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North Carolina Public Universities Arent Preparing Students Well on Free Speech - National Review

Carl J. Asszony| Special to the USA TODAY Network

Will no spectators change Tokyo Olympic performances?

USA TODAY Sports' Tom Schad explains how the recent decision to bar spectators in Tokyo leads to the first Made-for-TV Olympic Games.

SportsPulse, USA TODAY

The anthem doesnt speak for me. It never has.

Those were the words of Gwen Berry, an Olympic track and field athlete, who turned her back while the national anthem of the United States was being played during the award ceremony at the Olympic trialsJune 26. Berry had placed third in the hammer throw. While the other winners stood quietly with hands over their hearts in respect to the nation, Berry refused to do so and even covered her head with a t-shirt displaying the words "activists athlete."

Berry claims that the "Star Spangled Banner," is racist and disrespectful to black Americans.

She explained, If you know your history, the third paragraph (stanza) speaks to slaves in America, our blood being slain and piltered (?) all over the floor. Its obvious. There is no question.

This the verse of the Star Spangled Banner that Berry said she finds offensive:

"No refuge could save the hireling and slave

From the terror of flight or the gloom of the grave,

And the star spangled banner in triumph doth wave

Oer the land of the free and the home of the brave."

If Berry had studied history a little closer, she would have found that racism in that stanza is not so obvious. Her interpretation was debunked in 2016 by Mark Clague, a professor of music history, American culture, African and AfroAmerican studies, and entrepreneurship at the University of Michigan. Clague is considered to be the leading authority on the "The Star Spangled Banner."

Clague contends that that the term "hireling" referred to mercenaries hired by British forces, and the term "slaves" meant escaped slaves recruited by the British with promises of freedom.

The professor also feels that the poem honored both black and white defenders of Fort McHenry. For example, there was William Williams (Frederick Hall), an escaped slave who was allowed tojoin the U.S. Army and was at the battle of Fort McHenry. It was there that he lost his leg in battle and died a few months later. Charles Ball, another escaped slave who could havejoined the British to gain his freedom, instead fought with the U.S. Navy during the war of 1812. He encouraged other escaped slaves to fight for the United States instead ofjoining British forces.

'I never said I hated the country': Gwen Berry responds to critics of her flag protest

Other historians also believe that Francis Scott Key, in his poem the Defense of Ft. McHenry,just used the words "hireling" and "slaves" as a rhetorical device to describe those in the Royal Army and Royal Navy being repelled by American forces.

Yeonmi Park, a human rights activist who escaped the harsh regime of North Korea, criticized Berry for turning her back on the national anthem. Park believes if Berry had done this in North Korea she would be imprisoned or executed.Park added, the fact that shes (Berry) complaining about this country, the most tolerant country she doesnt really understand history.

Berrys father, Michael, an Iraq war veteran, commended his daughter for her actions stating, For her to do that on the podium is more American than anything, because thats what our country is founded on: freedom of expression, freedom of speech.

That may be true, but whatBerry and others dont seem to understand is this: It is not their freedom of speech that is in question it is the matter of the sports arena being kept neutral and separate from politics.

For me, thisquestion remains: if Berry has such disdain for the national anthem, how can she represent the United States in the Olympics?

CarlJ. Asszony, a longtime New Jersey veterans advocate, can be reached at njveteran30@gmail.com.

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Gwen Berry, 'The Star Spangled Banner' and free speech in the world of sports | Opinion - NorthJersey.com

Among the dozens of bills filed by Republicans to restrict how educators teach about race, perhaps none was more carefully written than the one in North Carolina. And therein lies the larger problem with such bills: The downside of even the most cautious efforts likely outweighs their benefits.

In numerous other states, legislators purporting to target critical race theory or divisive concepts have packaged sensible reformsincluding prohibitions on requiring students to proclaim particular points of viewtogether with irresponsible clauses that are highly likely to discourage valuable instruction. Greg Lukianoff, the president of the Foundation for Individual Rights in Education, worries that many of these bills are so vague that they arguably forbid teaching about slavery or racism at all.

Yet even harsh critics of this kind of legislation grant that North Carolinas effort is less vulnerable to censorious abuses than those of other states. For example, the Acadia University instructor Jeffrey A. Sachs surveyed more than 50 bills in 24 states that would add restrictions to what K12 educators could tell students about race or sex. He concluded that legislators who wanted to ban teaching topics such as white privilege and the work of authors such as Robin DiAngelo and my colleague Ibram X. Kendi had drafted bills so broad and clumsily written that entire historical eras and swathes of contemporary events would be barred from discussion. The large majority of these bills are repugnant to an open society, Sachs declaredyet he noted that North Carolinas bill is the exception and would probably do little harm.

Thats because House Bill 324 would not prohibit elementary- and secondary-school educators from merely discussing anything, including white privilege, DiAngelos White Fragility, or Kendis How to Be an Antiracist. Rather, it would prohibit them from promoting seven specific concepts:

Under the proposed law, schools are explicitly allowed to explain those seven concepts or to assign materials that incorporate them for educational purposes in contexts that make clear the public school unit does not sponsor, approve, or endorse such concepts. Educators are prohibited only from teaching any of the concepts in a manner that could reasonably give rise to the appearance of official sponsorship, approval, or endorsement. (Though the laws text mentions race and sex in parallel, the debate about it has focused on how schools handle the former.)

Read: The GOPs critical race theory obsession

I sympathize with fears that some educators try to indoctrinate rather than educate public-school students about race and that some left-progressive perspectives about race veer into racial essentialism, discrimination, or crude racial stereotypes, like the notion that showing up on time or revering the written word is an attribute of white culture. Any teacher actively promoting the concepts targeted by the North Carolina bill should meet public resistance. For lawmakers or parents to object to curricula that promote ideological dogma about race is neither illiberal nor authoritarian, any more than objecting to Lost Cause mythology in public schools is illiberal or authoritarian.

Yet North Carolinas relatively well-written bill illuminates a flaw in all such legislation: Any prohibition broad enough to exclude pernicious dogma risks prohibiting or chilling legitimate instruction, while any bill so narrow as to avoid a chilling effect is unlikely to effect significant change. The needle is extraordinarily difficult to thread.

The populist right is now using critical race theorya term that originally referred to a distinct, decades-old form of scholarship about racism in American politics and lawto encompass everything conservatives dislike about leftist identity politics, while the progressive left now understands CRT to be mere common-sense truths about racism in America. The outrage entrepreneurs on either side of H.B. 324 therefore share a perverse incentive to portray it as a law that would ban critical race theory. The bill would prevent discriminatory concepts, like Critical Race Theory, from being taught as fact or endorsed, North Carolinas Republican House speaker, Tim Moore, declared in a press release. Democratic Representative Kandie Smith likened the bill to a book burning and said, A small group of enraged individuals are looking to ban an entire concept of thought because it makes them uncomfortable.

But if the North Carolina bill passes, it wont ban critical race theory. It will restrict teachers from promoting seven specific concepts that may overlap at times with CRT but are far from synonymous with itand will do so mostly by banning the promotion of racial stereotypes in public schools. Indeed, the bill is best understood as an attempt to deploy the blunt tool of antidiscrimination law, an exercise that ought to confound many of its supporters and opponents alike.

Actors on both sides are taking positions that they reject in other circumstances. Prior to this year, observers of American politics could expect a bill targeting discrimination on the basis of race or sex (as at least six of the seven concepts named in the legislation do) to be disproportionately supported by Democrats invoking values such as diversity, inclusion, and the importance of combatting hate, and disproportionately opposed by Republicans citing concerns about restricting individual liberty and needlessly inviting costly, frivolous litigation. Instead, the Republicans pushing the bill say that it simply prohibits schools from endorsing discriminatory concepts, as Representative John Torbett, the lead sponsor, put it. Opponents of the North Carolina measure and similar bills in other states emphasize their potential chilling effect. Commenting on GOP proposals collectively, the ACLU declared, Using these laws to prevent talk about racism is anathema to free speecha right many conservative lawmakers claim to hold dear.

This role reversal is due to the confluence of many factors. For years, academic training programs and professional organizations for American educators have asserted that teachers have an ethical duty to advance progressive notions of social justice in the classroom, given the opportunity. More recently, an opportunity to advanced these notions arose: The rise of Black Lives Matter, the ideological shift of white liberals to the left of Black voters on issues of race, and the murder of George Floyd all contributed to greater support, especially in blue America, for radically transforming the way that public schools discuss race, for better and worse. Events such as the arrival of enslaved people in English colonies, Juneteenth, the Tulsa massacre, and unjust police killings have received due attention. And education about the workings of systemic racismfor instance, how redlining created racial disparities in inherited wealthhas grown more sophisticated.

These positive changes have triggered some backlash from reactionaries who simply object to any emphasis on the ugly side of U.S. history. But a broader backlash encompasses observers across the ideological spectrum who worry that, in the effort to right Americas very real racial wrongs, progressive educators are sometimes guilty of worrisome excesses, as when they stray into indoctrination or racial essentialism and reductionismwhat the essayist Albert Murray called a folklore of white supremacy and a fakelore of black pathology. Alongside historical facts, some schools are relaying hotly contested narratives about race in America as if theyre established truths rather than the opinions of one ideological faction among many. The New York Times published the 1619 Project, which blended facts, such as the year enslaved Africans were brought to Virginia, with subjective interpretation, including the claim that 1619 was the year of Americas true founding, and partnered with the nonprofit Pulitzer Center to adapt even its most contested claims for school curricula. The Black Lives Matter at School movement succeeded in persuading a number of school districts across the country to devote a week to lessons that, at least in one district, include materials that tell kindergartners that whiteness is akin to signing a contract with the devil. DiAngelos signature book, now a fixture of professional-training sessions, maligns and stereotypes white people and condescends to Black people; Kendis best seller argues that racial discrimination is not inherently racist If discrimination is creating equity, then it is antiracist.

Conor Friedersdorf: What happens when a slogan becomes the curriculum

So should public schools be banned by statute from promoting the concept that one race is inherently superior? Or that some people should feel psychological discomfort because of their race? I suspect that majorities of all racial groups regard at least the first six of the seven concepts targeted in North Carolina as profoundly wrongheaded. (The seventh, which includes the idea that the U.S. was created for the purposes of racial oppression, appears to refer to the 1619 Project. Though questionable as a historical matter, this proposition is not overtly discriminatory.)

Yet conservatives, of all people, should recognize compelling arguments for declining to pass a state law that interferes with the prerogatives of local control, which theyve long valued, or that targets specific concepts, even extremely destructive or discriminatory ones. After all, commentators on the right have spent decades warning about potential and actual excesses of antidiscrimination statutes, and the many ways that they may conflict with other goods, such as First Amendment protections, academic freedom, freedom of religious conscience, freedom of expression, and more. Additionally, Republicans should worry that banning even something they abhor, such as the active promotion of White Fragilitystyle racial essentialism in North Carolina schools, could cause some educators to stop teaching valuable material that legislators did not intend to ban, because antidiscrimination laws tend to chill more speech than they formally prohibit.

Progressives, meanwhile, will be familiar with counterarguments in favor of aggressive, formal prohibitions on race and sex discrimination, having built bureaucracies in universities and other institutions to enforce such restrictions. In the 1993 essay collection Words That Wounda seminal text of critical race theorythe professors Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberl Williams Crenshaw provide a multifaceted intellectual edifice for overriding academic freedom, free speech, and First Amendment concerns and using state power against words that degrade or humiliate in education.

In an ironic twist, proponents of the North Carolina legislation could argue for its passage by citing these critical race theorists, who argued in Words That Wound that less egregious forms of racism degenerate into more serious forms; that libels against entire racial groups are more damaging than slights aimed at individuals and are best treated as outside the realm of protected discourse; that racist messages trigger physiological injury and devastate self-esteem; that those who are denigrated for their race or gender benefit from laws that tell them they are not imagining the harm being done to them; that the appropriate standard in determining whether language is persecutory, hateful, and degrading is the recipients community standard; and that the classical liberal insistence on viewpoint neutrality when the state restricts speech entrenches abuses by people in power.

Summing up their case for narrowing the First Amendment and limiting freedom of speech, the authors of Words That Wound declare in a joint introduction that this is at bottom a fight to gain equal access to the power of the intelligentsia to construct knowledge, social meaning, ideology, and definitions of who we are.

The same fight continues today, but with a noteworthy ideological flip.

The right, watching some educators abandon race neutrality, stigmatize whiteness, and embrace historiography that portrays the introduction of slavery as Americas true founding, is now invoking nondiscrimination law, a tool it has often criticized, to challenge a left-identitarian intelligentsias power to foreground racial difference and group identity in defining who we are. The North Carolina bills very title, Ensuring Dignity & Nondiscrimination / Schools, adopts the premise that protecting students dignity requires limiting their educators classroom speech. In a tweet reminiscent of Words That Wound, Speaker Moore warned of hateful ideas that are attacking our kids.

For its part, the left, which has traditionally pilloried skeptics of antidiscrimination laws, is opposing one such law in North Carolina, awakened to how that tool can limit speech, truth-telling, and knowledge-making. Echoing free-speech advocates who believe that people need no protection from views with which they disagree, one Democratic lawmaker, Representative Ashton Clemmons, declared, Fundamental to education is discomfort. If you stay in your comfort zone, you are not growing. You are not learning. You fundamentally have to feel discomfort to learn something new.

In short, proponents of the North Carolina bill have adopted critical race theorists call for explicitly limiting discriminatory speech in education, while bill opponents have rejected it.

Small tweaks to the North Carolina bill, such as eliminating the one prohibited concept that doesnt constitute discrimination or stereotyping, could make it less prone to chilling effects or overweening prohibitions. But the bills opponents vastly exaggerate its potential harm when they claim, as did North Carolinas ACLU chapter, that rather than help young people get the most out of their education to help them grow into informed and engaged citizens, some lawmakers want to practice censorship and impose an alternate version of American historyone that erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, and LGBTQ+ individuals. If passed, this bill will result in no such erasure.

Anne Applebaum: Democracies dont try to make everyone agree

This is an act to ensure discrimination, fanaticism, bigotry, State Representative James Gailliard, a Democrat from Nash County, said of the bill. Nothing in the bills text can justify those histrionics. As Republican legislators in many states transgress too far into censoriousness, some Democrats are talking as if any step to contest preferred progressive curriculum on race is verbotenas if no legitimate disagreements exist about how best to educate and acculturate young people. If a significant number of North Carolina educators are promoting discrimination on the basis of race or sex, whether in the guise of white supremacy or anti-racist activism, state legislators are within their rights and responsibilities to pass a bill tailored to stop it. The question is: Are the ostensible abuses that this bill would prohibit actually common?

The conservative blogger A. P. Dillon has documented a teacher-training event in Wake County, North Carolinaset up by an employee of the Wake County Public School Systems Office of Equity Affairs and attended by scores of public-school teacherswhere handouts at a Whiteness in Ed Spaces session listed supposed norms of whiteness, including fear, I know best, and punish, and urged educators to adopt applied critical race theory to challenge the centrality of whiteness in schools. But Ive been unable to find significant evidence of North Carolina teachers engaging in classroom conduct that would violate the law.

Although I agree in principle with forbidding public-school teachers from promoting racism or sexism, and support existing nondiscrimination laws that do so, I doubt that many North Carolina teachers would ever be caught violating H.B. 324 by promoting one of its prohibited conceptsprecisely because the bills language is so narrow, and merely teaching the concepts is permitted. And insofar as any educator is found to promote discriminatory stereotypes, pressuring principals and school boards to stop such activity could be effective without a state law.

Proponents of H.B. 324 argue that it would empower parents and make it easier for them to take their complaints to state courts, rather than federal ones. Still, the bill provides no specific remedy for violations. And other remedies are already available to students and their families. Specifically, the First Amendment protects against the states compelling people to affirm ideas with which they disagree. Title VI of the Civil Rights Act of 1964 already prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds. And North Carolinas state constitution already declares, No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin. Truly discriminatory teaching, in other words, is already illegal.

Meanwhile, lawmakers and members of the public who want to ban the 1619 Project or White Fragility from schools outright, rather than trusting that flawed historiography or identitarian racecraft will be rejected if the strongest arguments on all sides are aired, should understand that H.B. 324 wont, in fact, keep those materials out of public-school classrooms. A North Carolina teacher could even assign Critical Race Theory: An Introduction without violating the law.

The closer one looks at the particulars, the more it seems as though the North Carolina bills advocates would be securing a symbolic political victory rather than a policy victory with any significant classroom consequences. That makes justifying the potential chilling effects of any antidiscrimination bill harderespecially in an environment where some credulous, uninformed teachers who listen to the hype from either side might mistakenly conclude that a whole ill-defined academic subfield is banned. The activists pushing these laws ought to study the history of the academic movement they tout as their enemy: As an early generation of critical race theorists discovered in the early 1990s, when they worked to promote speech codes in higher education, policy makers will inevitably struggle to write a bill that constrains discriminatory teaching narrowly enough to avoid undue censorship and broadly enough to achieve their goals. Should this bill become law, like those bygone speech codes, the victory may prove as Pyrrhic.

Excerpt from:
North Carolina Finds That Banning Indoctrination Is Hard - The Atlantic