Last Friday saw an important, if limited, victory against not just authoritarianism in the United States, but in favor of freedom of speech, when federal prosecutors dropped felony charges against the last thirty-eight J20 protesters arrested on the day of Trump’s inauguration.
The attempt to put 234 people in prison for the action — including legal observers, reporters, and people who were simply hanging around watching the protest — would have had chilling implications for free speech, making it legally acceptable to arrest and prosecute nonviolent protesters on the sole basis that someone near them had carried out property damage during a protest. Instead, federal prosecutors repeatedly failed to get convictions when trials went to a jury, leading them to simply drop the charges against those remaining.
It’s true that overzealous prosecutors didn’t end up empty-handed — they put the defendants through eighteen months of extreme stress, and slapped them with mountainous legal fees (you can donate here), thus sending a message to any future protesters. Still, by any measure, this was an important victory for anyone who cares about not just the right to dissent against those in power, but the right to political expression free of harassment and censorship, particularly from the government.
So, where was the Right?
After all, for the past year and a half, we’ve heard constantly from conservatives presenting themselves as ardent champions of free speech, bravely speaking out against what they say is an increasingly censorious and intolerant American culture, particularly on college campuses. Some of the most high-profile of these self-described iconoclasts have even dubbed themselves the “Intellectual Dark Web,” due to their penchant for articulating truths allegedly too shocking for a society in thrall to the social-justice left to accept — a heresy for which they’ve been punished with media attention, waves of news followers, and lucrative book deals. Many of these individuals have warned for years now that free speech is under threat.
So, one would think the events of last Friday would have received reams of celebratory media attention from right-wing news outlets, considering that it was not only a free speech issue, but one that involved government forces engaged in just the kind of tyrannical repression they’ve been riling their audiences up about for years. But no: so far, the major right-wing outlets and personalities who typically devote generous attention to the issue of free speech have devoted exactly zero coverage to this First Amendment victory.
Look up the words “free speech” at the Federalist website and you’ll get 1,715 hits, including a piece celebrating the Masterpiece Cake court decision, numerous articles about college students’ hostility to free speech, and a piece declaring that “free speech is under sustained attack in our country.” The site even has a tag for articles that fall under “free expression.” But under that tag, you won’t find a single article about the J20 trials. There are only three articles that give even a passing mention to the protests (all from January and February 2017) and they portray it negatively — “disorderly and disruptive,” in one case.
The National Review, the flagship journal of conservative opinion, has literally thousands of articles on the subject (“Free Speech On Campus: Can It Be Saved?” asks one), but the only time it has mentioned the protesters was in January 2017, calling them “hoodlums” and part of “the Left’s criminal anarchist element.” It’s the same story with the Daily Caller, the Daily Signal, and Breitbart. Even the Daily Wire, set up by Ben Shapiro, one of the members of the “Intellectual Dark Web,” has only mentioned them once, in an obligatory January 2017 article warning that leftists were “plot[ting] criminal acts to disrupt Trump inaugural ball.”
In fact, Shapiro himself — who has charged that the Left is “dedicated to wiping out dissenting thought” and is “unhappy with the First Amendment,” and who has championed free speech primarily when it involves his own speech on college campuses — apparently hasn’t even bothered to tweet about the J20 decision, much less write or talk about it. (He did find time to chide the woman who protested Trump’s immigration policy on the Statue of Liberty, though).
Nor did the New York Times’s Bret Stephens — who has urged people to be “consistent and expansive champions of the First Amendment,” and whose chief gripe appears to be with college students and people criticizing him on Twitter — manage to get to the story. Instead, he filed yet another conservative-penned Alexandria Ocasio-Cortez-related op-ed about how the Democrats shouldn’t move left.
Free Speech for Me, but Not for Thee
The subtext here is the likelihood that many on the Right quietly supported prosecution of the protesters. When they bothered to write about the J20 protesters, right-wing outlets tended to view them not as dissenters engaged in constitutionally protected civil disobedience, but as hooligans, vandals, and criminals who were out to damage and destroy. Their silence on what constitutes a clear-cut triumph for the First Amendment is part and parcel of the Right’s broader commitment to “law and order” over civil rights.
It’s true that the Right is hardly unique in this double standard; most people aren’t consistent defenders of free speech. But overwhelmingly, it’s members of the Right who have spent the past two years wrapping themselves in the First Amendment, insisting to anyone who will listen that they are principled advocates of free expression.
One might argue that the Right’s silence about instances of government repression like J20 stems from its single-minded focus on campus activists. But this is nonsense. As conservatives themselves insisted for a full eight years under Obama, repression from authoritarian governments is a far more pressing threat to free speech than the actions of a bunch of kids who have no tangible power outside the confines of their campuses.
The truth is that apart from a few principled conservative voices, the Right as a whole doesn’t actually care about free speech, unless it pertains to their speech. The same people who wag their fingers at supposedly totalitarian campus protesters will then quite happily applaud the NFL’s suppression of protest by its athletes. And it was, after all, the Right that supported George Bush’s civil liberties-shredding actions in the “war on terror” and went apoplectic after pop stars issued mild condemnations of “their” president. College campuses are simply the one place where conservatives can be made to feel like pariahs; in every other segment of society, it is left-wing dissent that tends to be criminalized and repressed, as the J20 case reminds us.
Of course, just because the Right is disingenuously using free speech to advance intolerant and sometimes hateful ideas doesn’t mean the Left should abandon the concept. But it does mean that liberals and centrists — particularly those who work in the press — should avoid buying into the Right’s rebranding of the past few years by treating them as principled free speech advocates. As with the concept of “fiscal conservatism,” sometimes the hypocrisy is so flagrant that “balance” itself is a sin.