Calvin Freiburger

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National Review contributor David French. Wikimedia Commons

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What happens when conservatives support drag queens on ‘free speech’ grounds

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September 10, 2019 (LifeSiteNews) — The latest development in one town’s fight against public libraries sponsoring garishly cross-dressing men reading sexually subversive books to kids shows how incredibly important the debate swirling around this new and disturbing concept is.

On one level, a months-long argument among people who identify with a New York Post editor versus a National Review writer on “dueling visions for how cultural conservatives should respond to the post-liberal left” is about as inside-baseball as it gets, and I imagine that by now it tends to make a few eyes in the audience glaze over.

To recap, the debate started in May, when the Post’s Sohrab Ahmari identified N.R.’s David French as emblematic of a certain breed of conservative wholly unsuited to meaningfully resist leftist indoctrination projects such as Drag Queen Story Time, a thoroughly sickening movement to feed gender fluidity to children in public libraries. French’s response has been to dismiss it as no big deal and an exercise of free speech we can’t do anything about.

Last Thursday, the Institute for Human Ecology at the Catholic University of America in Washington, D.C., hosted a debate between Ahmari and French during which French doubled down on his position that banning Drag Queen Story Time would “usurp the Constitution.” Here’s how he summarized it Monday at N.R.

I don’t like drag queen reading hours, but I also want to preserve for all Americans the First Amendment-protected right of viewpoint-neutral access to public facilities when those facilities are opened up for public use. I don’t want the government dispensing access on the basis of its preferred messages or its preferred speakers. Handle bad speech with better speech. Counter bad speakers in the marketplace of ideas, not through the heavy hand of government censorship.

For a glimpse at how this legal theory works in practice, we turn to Leander, Texas, where the Daily Signal reported that the city council has voted 5-2 to stop Drag Queen Story Time...by deciding that nobody can rent out public library meeting rooms anymore:

“We brought in $1,800 in rental fees and we spent $20,000 in security,” Leander Mayor Troy Hill said, apparently referring to the drag queen event. “That’s not good math to me” (...) 

“I hate that we’re having to do this, to take it away,” (councilman Jason) Shaw said of the vote to stop renting out space. 

“But people are going to attack. If we don’t just make it even across the board, people are going to attack and they’re going to probe,” he said. “It’s going to cost the city and eventually somebody’s going to get hurt. Things are going to escalate and somebody’s going to get hurt.”

Bible study, book clubs, historical or artistic presentations, informational meetings about local politics or community activities...it’ll all have to go, just because local leaders determined that it would be too much trouble to simply decide that connecting kids with drag queens is an inappropriate use of public resources.

French would have us believe that communities are powerless to judge the educational value of what their educational institutions are used for, or even to set commonsense boundaries on the basis of age-appropriateness. Does any of this sound like a remotely rational inference from “Congress shall make no law ... abridging the freedom of speech”? Can anyone honestly imagine any of the Founding Fathers nodding along?

Tellingly, French claims that excluding Drag Queen Story Time from public libraries would upend a “present regime that broadly protects viewpoint neutrality in access to public facilities” based on “decades of litigation”...not a regime rooted in the First Amendment’s original understanding or intent. 

That’s another of the Right’s most overlooked problems: far too many of our own side’s legal analysts are a product of post-constitutional legal academia almost as much as they are of center-right philosophy, resulting in far too many foolish positions based on judicial precedent rather than the Constitution itself, and too little concern for working to actually restore the Constitution.

Hadley Arkes, eminent Amherst College political scientist and architect of the Born-Alive Infant Protection Act, explained at The American Mind just how French’s acceptance of dubious precedent leads him astray — the precedent in this case being the Supreme Court’s 1982 Widmar v. Vincent ruling, which Arkes argues reached the right outcome for the wrong reasons:

By the time Widmar had come along, the Court had remade its doctrine on the regulation of speech by backing into a stylish version of moral relativism. The signature line came from Justice John Harlan in Cohen v. California (1971): “One man’s vulgarity is another’s lyric.” Harlan’s novelty here was that he rediscovered the teachings of “logical positivism” that were all the rage when he was an undergraduate, though they had been long abandoned by then in the schools of philosophy. But Harlan argued now on positivist grounds that political speech, on matters of right and wrong, was often heated speech and largely emotive in nature, without any cognitive content. Harlan insisted that there was no principled ground for recognizing a class of obscene or assaulting speech, and no grounds of truth in testing political speech. 

When the Court brought that teaching to bear on the problem of Evangelicals at the University of Missouri, it produced this ironic outcome: The Court would sustain a right on the part of the religious to have access to the rooms at a public university, but not because there was anything especially legitimate or salutary about religion in the life of a republic. Rather, the Christians couldn’t be ruled out because it was not legitimate any longer to make discriminations based on the “content” of the speech. The Christians couldn’t be barred for the same reason that the University could no longer rule out Leninists, Nazis, or Satanists[.] ...

French said that he would like to see the drag queen come into a relation with Jesus, but as I noted, he was determined not “to usurp the Constitution to do this. The price of wiping out Drag Queen Story Hour is too high.” The Constitution he was invoking was the Constitution reshaped in 1971 by Justice Harlan and his colleagues to absorb this liberating novelty of moral relativism.

Nobody is calling for the cops to raid Drag Queen Story Times on private property, and nobody denies that this fight is primarily a cultural one. Of course, the bulk of the work will be countering “bad speech with better speech.” But appearing on a library’s event schedule gives something much greater weight than it would have in some random newspaper ad, because it suggests that its educational value has been vetted and endorsed by the community’s educational authorities.

The First Amendment didn’t cause this situation, and it doesn’t stand in the way of correcting it. Free speech doesn’t mean public institutions have to give radicals easy access to kids, and the cultural debate David French claims is our sole recourse will always be weighed against us as long as government presses its hand on one of the scales.

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Calvin Freiburger

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Calvin Freiburger is a Wisconsin-based conservative writer and 2011 graduate of Hillsdale College. His commentary and analysis have been featured on NewsReal Blog, Live Action, and various other conservative websites. Before joining LifeSiteNews, he spent two years in Washington, DC, working to build support for the Life at Conception Act with the National Pro-Life Alliance, then worked a year and a half as assistant editor of TheFederalistPapers.org. You can follow him on Twitter @CalFreiburger, and check out his personal website, ConservativeStandards.com.