The NYT’s Battle for Free Speech Could Lose us the War for the First Amendment

Last March the New York Times editorial board wrote that free speech was under threat. They couldn’t have been more right, or more terribly wrong.

by Evan Urquhart

A little over a year ago the New York Times editorial board produced a truly extraordinary piece of writing. Headlined “America Has a Free Speech Problem” it made the case that free speech requires the ability to voice opinions without criticism, that Americans felt less able to speak their minds in 2022 than they had previously, and that their fear of being criticized for something they said constituted a serious and ongoing threat to human flourishing.

The essay did note, very briefly, that there some in the Republican party were trying to ban actual books, but that fact was left adrift, with nothing else in the editorial to connect up to. In fact, later in the essay it was explicitly stated that the constitutional right to free speech in America was not under threat, but the more nebulous feeling of having the right to speak without fear was under threat, and that needed to be taken seriously.

screenshot from the New York Times

A year, a month, and 9 days later, calls for the execution of trans people and their supporters are flourishing on Twitter, the very website that was once the focal point of cancel culture hysteria. At the same time, books have been stripped from Florida classrooms, students are walking out of class in order to teach themselves the banned history of American racism, Black lawmakers were expelled from the Tennessee legislature for expressions of support for peaceful protests, and a trans lawmaker has been silenced and is facing censure or expulsion for speaking in defense of gender-affirming care. 

The Times editorial board, in other words, got everything they wanted. Cancel culture has lost its grip on the American psyche. Speech, including violent speech, that would previously have been suppressed online is flourishing. Yet the result has been that the musty old constitutional right to free speech, the right nobody seriously needed worry about (according to the editorial board), is under sustained and open assault by *checks notes* the very people who set themselves up as free speech champions.

How did this happen? 

It strains credulity to imagine that the current assault on American’s First Amendment rights could have no connection to the recent rebranding of the right to free speech as the right to be free of criticism or social disapproval. The 2022 editorial board essay now seems like the high water mark of that rebranding effort, coming as it did after years of stories dissecting every minor example of so-called “cancel culture” and imperiled speech on college campuses. 

This rebranding has come at a terrible cost to the ability to recognize and respond to actual threats to protected speech under the First Amendment. These threats don’t come from protesters on college campuses, but they are threatening the speech rights of young people on college campuses. They didn’t come from trans people, but they are threatening the equality of trans people. And they unequivicolly aren’t coming from the left and never did. It is the right who are seeking to ban drag performances and enforce dress codes based on “biological gender.” It all adds up to an assault on the First Amendment of a sort that hasn’t been seen since McCarthy’s era.

It might make sense, and let mainstream media off the hook, if efforts to ban books, ban drag, even ban gender nonconformity at government agencies were coming in a larger cultural context where Americans largely opposed trans rights and believed that banning books or drag are necessary. When hatred is widespread there may be limits on how much you can do to fight its capture of legal authority. But this is emphatically not the case. Instead Americans have been confused, underinformed, and distracted from fighting for their rights by mainstream pundits and reporters who were so busy arguing about cancel culture they forgot that the constitutional protections of the First Amendment are only as real as Americans’ ability to understand and respond when they are threatened.