Is Free Speech Our Most Important Right?

“So a judge, who had shown contempt for the human rights of others, wants to enjoy free speech as a human right himself? Free speech is an important right. But is it a more important right than those of life and liberty, for everyone? Those who have violated human rights should not be welcome anywhere in society, let alone on elite college campuses.” – Whit, VT

This comment was in response to a New York Times report of yet another free speech brouhaha, this time at Stanford Law School. The school’s Federalist Society invited Stuart Kyle Duncan, a conservative judge on the U.S. Court of Appeals for the Fifth Circuit, to speak to students. The Trump-appointed Duncan’s conservative bona fides include defending a ban on gay marriage and supporting a law denying transgender students bathroom choice,

Protesting students disrupted his remarks and the campus DEI administrator restored order but, in doing so, seemed to align with the protestors. This drew a rebuke from the law school Dean and the DEI administrator was placed on leave. The Dean subsequently issued a long, scholarly treatise on free speech rights, garnering widespread praise from free speech advocates and opponents of self-appointed progressive extremists who have supposedly soiled academia with cancel culture and immature intolerance.

The vast majority of the Times’s purportedly progressive readership applauded the “brave” Dean and excoriated the Stanford students and others who engage in such uncivil behavior. A great many commenters suggested that a failure to listen and respond with civil critique was indicative of a temperament ill-suited to the legal profession. Blah, blah and more blah.

Except perhaps Whit – and I.

Many comments were quite elegant in defense of reasoned debate, decorum and civility to an invited guest. I found myself persuaded, until I was not. Whit’s simple comment was gratifyingly clarifying. The conservative movement in contemporary times is quite focused on “owning the libs,” and this culture war hogwash is a sign of their success. The Federalist Society, through a stranglehold on Republican court appointments and a clever facility for framing this kind of debate, leads the way.

Although Duncan is not as ostentatiously provocative as some white nationalists and anti-Semites brought to campuses in the service of owning the libs, the Federalist Society’s wizards knew precisely what they were doing. Duncan is far from an exemplar of conservative legal scholarship. His record of denying basic human rights is his only distinguishing credential and the reaction to his appearance was predictable and played directly into the conservative grievance machine: “See! Look at these intolerant liberals who can’t even engage in a civil exchange of ideas!”

I have no patience for the only two constitutional rights that the conservative movement embraces: The unfettered right to own and use deadly weapons and the right to bitch about their First Amendment rights whenever their abuse of all the other rights is met with the disgust it merits.

The constitutional rights of women and girls to reproductive health autonomy are abused through judicial manipulation.

The votings rights of Black and brown folks are abused through repression and gerrymandering.

The right to a free and equal education is abused by conservative privatization and funding schemes.

The rights to health care, housing, clean water and food justice are systematically denied.

The constitutional right to live in a secular society are abused by the constant imposition of government-sanctioned religion.

Workers’ rights and safety are under constant conservative assault.

This “free speech” nonsense is the granddaddy of a very large menu of false equivalence that we are expected to swallow without question.

We are to accept that heckling a speaker at a law school is an equivalent – or greater – violation of human rights than insulting a transgender woman in a courtroom? (Yes, Duncan did that.) Objecting loudly – even crudely – to the assault on millions of LGBTQ folks’ rights is not offensive. Denying full rights to millions of gay folks is offensive.

The response of progressive students to vile speakers on college campuses is not the problem. The calculated efforts of the right wing to take the country back a century or two is the problem.

The rights of women were not advanced through pleasant debate in law school classrooms. Civil rights required civil disobedience, not academic decorum. The immoral war in Vietnam was finally ended by spilling blood on draft files, sitting in the streets and courageous law breakers like Daniel Ellsberg.

We are living in a time of great peril: climate change; assaults on human rights and dignity; resurgent racism; anti-democratic laws and policies; unthinkable gun violence.

Here’s an idea: If you don’t want idealistic students to rudely interfere with the rights of speakers, don’t invite speakers who have cruelly denied your students’ rights.