Both Illiberal, But Not Quite The Same

In the latest version of “Let’s Come Up With A Stupid Law,” Florida’s entry is the “Don’t Say Gay” bill.

A Florida House committee on Thursday passed a bill seeking to ban discussions of sexuality and gender identity in school classrooms, which LGBTQ+ advocates say will effectively “erase” LGBTQ+ history, culture, and students.

The Parental Rights in Education bill, also known as the “Don’t Say Gay” bill, passed Thursday in the House Education and Employment Committee largely along party lines.

Some applaud the bill because they, as parents, do not believe it’s the place of teachers to teach their children what sexual orientations, identities and, perhaps, conduct is normal, acceptable or appropriate.

According to the bill, parents may take legal action against their child’s school district and be awarded damages if they believe any of its policies infringe on their “fundamental right to make decisions regarding the upbringing and control of their children.”

This will wreak havoc on the educational system, is so absurdly undefined and undefinable that it will never work and leave the cause of action up to the sensibilities of the craziest zealot. Not you, of course, because your feelings are entirely good and right, but you know that crazy who just goes too far?

On the other side there’s “Chasten Buttigieg, the husband of transportation secretary and former presidential candidate Pete Buttigieg.”

“This will kill kids,” he wrote Thursday on Twitter. “You are purposefully making your state a harder place for LGBTQ kids to survive in.”

A wee bit hyperbolic, perhaps, but we get the point. And Buttigieg doesn’t begin to raise the myriad legal and constitutional problems raised by such a bad law. Which brings us to the New York Times column of John McWhorter’s alter ego, Gertrude.

Those of us who sustainedly criticize the excesses of the Great Awokening are often told that we’re making a mountain out of a molehill. That the real problem is censorship not from the left but from the right. That censorship from the left is largely a matter of pile-ons by anonymous Twitter denizens or college kids expressing themselves, while censorship from the right involves menacing officials dedicated to eliminating, for instance, discussion of race in schools.

After explaining why the trivializing of illiberal attacks on free speech from the left is nonsense, he goes on to acknowledge that the right isn’t any different.

That said, I’m genuinely open to the idea that censorship from the right is more of a problem than I have acknowledged. The truth may be, as it so often is, in the middle, and a legal case from the past week has made me think about it.

The legal case to which he refers was that of the University of Florida profs who were told they could not provide expert testimony that might annoy the school’s state patrons and impact its funding. Judge Mark Walker issued an opinion shredding UF for its silencing academics. McWhorter then tosses in a few more cases of teachers being silenced by their schools for speech, each anecdote showing how the right can be just as censorious as the left. They do the job.

To many, I suspect, what happened to the University of Florida professors and to Hawn is more frightful than what happened to Jackson. However, that sentiment is a matter of one’s priorities, not a neutral conception of what justice consists of. Too many of us suppose that people should not be allowed to express opinions they deem unpleasant or dangerous and are given to demonizing those who have such opinions as threats to our moral order.

On the right, even if you’re wary of critical race theory’s effect on the way many kids are taught, it is both backward and unnecessary to institutionalize the sense that discussing race at all is merely unwelcome pot stirring (and if that’s not what you mean, then you need to make it clear). On the left, illiberalism does not become insight just because some think they are speaking truth to power. Resistance to this kind of perspective is vital, no matter where it comes from on the political spectrum.

Both sides are illiberal when it comes to disfavored speech, even if the speech at issue differs, and it’s no less illiberal coming from the right than from the left. This should not need to be said, and to anyone who doesn’t snap to attention at the command of their tribe, unsurprising.

But McWhorter’s analysis, close enough to make the point that neither side tends is a friend of free speech, misses a distinction that, for lawyers, should make a significant difference. The right is busy passing dumb and unconstitutional laws to try to silence speech it finds repugnant. These laws are in writing, public, attributable to their elected authors and easily available for ridicule. These laws, if enacted, are subject to attack in court, where they can be held unconstitutional. Even in the case of the UF profs, the school is a state entity, subject to the Constitution, and can be sued and beaten. There is a mechanism by which this illiberalism can be seen and thwarted.

But for the left, the weapon of choice too often* lies outside the official means of bad laws or government-controlled exertion of authority. Too often, it’s mob condemnation that compels schools to close their doors to speakers, publishing houses to withdraw books, and a vast array of people who aren’t well enough known to make it onto the NYT radar for being canceled. Florida can be sued for its latest entry into Stupid Laws, but there is no one to be sued for being anonymously listed on Moira Donegan’s “Shitty Media Men” list that destroyed dozens of careers with barely an accusation. And since nobody elected Donegan to any officer ever, it’s not as if she can be voted out.

There’s no question that free speech illiberalism is pervasive on both ends of the spectrum, but he’s remiss in failing to note the very real difference in their dominant weapon of choice. The use of official means on the right exposes it to being challenged in court and crushed for the unconstitutional nonsense it is. But the pressure of the mob on the left has proven far more effective in both accomplishing its goals and evading review.

*Yes, there are exceptions. There are always exceptions, but the tail still doesn’t wag the dog.


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17 thoughts on “Both Illiberal, But Not Quite The Same

  1. LRB

    The operative provision reads: “A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.” Whatever that means.

    It will be interesting to see how this bill plays out in comparison to the UF debacle, given its targeting of “classroom discussion” in a K-12 setting, where they can run a tighter ship. That aside, one would think you could drive a truck through “age-appropriate or developmentally appropriate”, particularly in secondary where it controls under the statute.

    More laws are always the answer.

    1. David

      Yet another reason to ban Huckleberry Finn, because discussing his disguising himself by wearing a dress (and being advised how to more plausibly pretend, e.g. by spreading his legs to spread his skirt to catch something in his lap) might encourage discussion of gender identity?

  2. Will J. Richardson

    Mr. Greenfield, your statement, “Both sides are illiberal when it comes to disfavored speech, even if the speech at issue differs, and it’s no less illiberal coming from the right than from the left”, accentuates the fundamental problem with the Public School model of compulsory education. Public School Curriculums are intrinsically political, subject to the pedagogical ideology of legislatures.

    The salient issue, however, is why the Compulsory Public School model persists when the imposition of an analogous model to any other good or service provided by the private sector, such as lawyers, groceries stores, or gas stations, are not politically viable. Monopolies in the private sector are universally condemned, yet the governmental near monopolies in education are accepted and commended. If compulsory education is deemed good for the community, there are ways to procure that good without resort to schools owned and operated by governments, such as educational stipends to schoolchildren enrolled in private schools. That would eliminate the compulsory speech problem.

    1. phv3773

      “That would eliminate the compulsory speech problem.”

      The description of the law in the first indented paragraph does not suggest it’s limited to public schools

      1. Dan

        Perhaps not, but even the most cursory reading of the bill (seriously, it’s on the second line of the first page) clarifies–it applies to “district school boards,” which only exist for public schools.

        1. David

          Illiberalism on the right isn’t just about this bill or just about schools. Schools are just the hot topic of the moment, but try to see the bigger picture.

      2. LRB

        I’m quite sure that it is.

        The bill seeks to amend s 1001.42 which deals with powers and duties of district school boards. 1001.32(2) says “…district school boards shall operate, control, and supervise all free public schools in their respective districts…”.

        They would be causing themselves an even bigger headache if they went further than that.

  3. Mark Hu

    Being the optimist i like to think that the right will just thow their hands into the sky and call ‘gosh darn it’ and move on when the courts intervene.

    Being the realist however…

    Also maybe to kind that the right mainly uses the courts. Reading David French’ encounters with the right wing mob are not for the faint of heart

  4. JR

    This will kill kids,” he wrote Thursday on Twitter. “You are purposefully making your state a harder place for LGBTQ kids to survive in.”

    We homos are stuck between a rock and a hard place. One group of Neanderthals continues to brandish a club so as to stamp out gays, and the other group, with drama queens like Chasten Buttigieg, and the alphabet LGBTQIA-eieio folks, make the Neanderthal guys look more desirable. In the words of Rodney King, “can we all just get along?”

    1. Stephanie

      Gay teens are 4x more likely to attempt suicide than non-gay teens, acc’g to the Trevor Project. Please consider why that might be, consider the population of Florida, and reconsider Chasten’s remarks.

      1. Andy

        I suspect JR knows rather more about the facts on the ground than you or “the Trevor Project”. Not to put too fine a point on it, I suspect I do too. Buttigieg’s ‘remarks’ (by the way, do you get invited to his dinner parties, being on a first-name basis with him?) were insane.

        1. Stephanie

          I suspect you are mistaken on all counts. I referred to Mayor Pete’s husband by his first name, even though I have not been invited to his dinner parties. Would love to attend, in safer times.

  5. Osama bin Pimpin

    Thank you for this post. I’m a Utah GoP activist especially on educational issues. I’m well aware of our own BS. I keep telling my guys we’re not supposed to be about banning CRT or anything else. Rather teaching a balanced curriculum that acknowledges our F’ed up history while emphasizing civic education on at least informing students what the constitution is and how it works and why. Stat I keep pushing is less than 40% of Americans under 40 can name 3 branches of fed gov. Lemme put it in criminal defense lawyer street terms. Wokesters during Kyle Rittenhouse trial talking about “juror accountability,” I’m like yeah Gotti/Cutler felt the same way.

    What I particularly appreciate is your point that our BS is in the open subject to attack while theirs is murky.

  6. David

    I think you have missed the proclivity for conservatives to indulge in cancel culture in your analysis. Look at the activities of Million Moms, Focus on the family, or the Colin Kaepernick cancel to name a few.

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