At the same time, all Americans should be deeply concerned about an avalanche of legislation passed by Republican-controlled legislatures around the country that gags discussion of certain topics and clearly violates the spirit of the First Amendment, if not the letter of the law.
It goes far beyond conservative states yanking books about race and sex from public school libraries. Since 2021 in 40 state legislatures, 175 bills have been introduced or prefiled that target what teachers can say and what students can learn, often with severe penalties. Of those, 13 have become law in 11 states, and 106 are still under consideration. All told, 99 bills currently target K-12 public schools, 44 target higher education, and 59 include punishment for violators, according to a running tally kept by PEN America. In some instances, the proposed bills failed to become law. In other cases, the courts should declare them unconstitutional.
These bills include Florida’s “Don’t Say Gay” bill, which would restrict what teachers and students can talk about and allows for parents to file lawsuits. If the law goes into force, watch for lawsuits against schools that restrict the free speech rights of students to discuss things like sexuality, established by earlier Supreme Court rulings.
The new gag laws coincide with a similar barrage of bills that ostensibly target critical race theory, an idea that has percolated down from law schools to the broader public in recent years as a way to understand the pervasiveness of racism. The moral panic around critical race theory has morphed into a vast effort to restrict discussions of race, sex, American history and other topics that conservatives say are divisive. Several states have now passed these gag laws restricting what can be said in public schools, colleges and universities, and state agencies and institutions.
In passing laws that restrict speech, conservatives have adopted the language of harm that some liberals used in the past to restrict speech — the idea that speech itself can cause an unacceptable harm, which has led to a proliferation of campus speech codes and the use of trigger warnings in college classrooms.
Now conservatives have used the idea of harmful speech to their own ends: An anti-critical-race-theory law in Tennessee passed last year, for instance, makes lesson plans illegal if any students “should feel discomfort, guilt, anguish or another form of psychological distress.” (Unmentioned, of course, is the potential discomfort felt by students who are fed a whitewashed version of American history.)
