Increasing Restrictions on 1st Amendment in School

HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome our guest today, who is executive director of the national coalition against censorship. He’s been an activist for free speech for close to a half century, and he is author of the book “How Free Speech Saved Democracy: The Untold History of How the First Amendment Became an Essential Tool for Securing Liberty and Social Justice.” Christopher Finan is my guest today. Chris, thank you so much for joining me.

 

FINAN: Hi. My pleasure, Alexander. It’s great to meet you.

 

HEFFNER: Great to meet you as well. I want to ask, just to start, what do you see as a relationship between free speech, or if you want to say censorship, and privacy with the reproductive rights or abortion seemingly in jeopardy right now. I was just curious from that starting point of how you see the relationship between speech and privacy, because they seemingly are interlinked in a lot of discussions right now.

 

FINAN: We have fought battles indeed over privacy in the free speech world. And most prominently after the 9/11 attacks, when the Patriot Act was passed, and it authorized among other things secret searches of business records. And what that really broke down to, in terms of a threat to free speech was that it wasn’t just businesses, it was also nonprofit work. So the American Library Association libraries the American Book Sellers Association, book sellers could have been compelled to reveal what their customers, patrons were reading, which would’ve had an enormously chilling effect on the willingness of people to, you know, to check out or to purchase books that the government might regard with suspicion. So we certainly have had those battles. The ALA had bought it earlier than we did when FBI agents came into the stacks and began to look for Soviet agents. We dealt with it when I was with the book sellers when there was an effort to force Monica Lewinsky to turn over her book purchase records and a couple of stores in connection to the Clinton invest investigation. So it certainly does happen.

 

HEFFNER: The reason, again, that I’m asking you, Chris, is because there seems to be the suggestion in at least a draft Supreme Court decision, if not what will be an ultimate Supreme Court decision that the constitution, our founding birth, basically our founding grounding as a country, and its interpretations through which we live our lives. In that draft opinion and possibly, you know, ultimately a real opinion, there’s the suggestion that there is no right to privacy, basically in the constitution, which is a fairly startling thing to conclude. Because I think, reading the constitution, certainly interpretations of the constitution, but even the original constitution, you know, you have the right for your home not to be invaded by troops. You have the right not to incriminate yourself. To me, those are rights of privacy.

 

FINAN: And it comes up again in the context of anonymous speech too, which is so important. You know, there are first amendment protections for the right to communicate without identifying yourself, which is so important to, you know, enable people to feel free to say what they want to say. So certainly any blow to anonymous speech, whether on the internet or anywhere else, you know, would be a, would be a big setback for the freedom of speech. And, you know, of course, just private conversations, even though what…My job is dealing with speech that, people are trying to censor because it’s public. But private conversation, the right not to be sped on you know, the right to privacy. I agree with you is, is directly implicated in free speech issues.

 

HEFFNER: Chris, tell us about the work you do at the National Coalition Against Censorship. What are you involved in right now?

 

FINAN: Well, right now we’re buried under the book banning and other school censorship that that’s taking place. You know, 15 states that passed laws that ban the teaching allegedly of critical race theory. And we have over a thousand challenges reported in the last eight months, which is just phenomenal. It’s tripled the number of challenges that we have faced on annually for, yeah, for a whole year, in many years, because we have to go all the way back to the 1980s when just after Reagan’s election kind of empowered conservative advocates to be able to have anything to compare it to. So we’re very busy. National Coalition Against Censorship’s job is to support parents and teachers, and librarians, and students who are fighting censorship at the local level. And we just have an incredible number of cases we’re writing two and three letters a day, the school boards asking them why they’re ignoring their policies for you know, formal reviews and just pulling books, and perhaps not returning them to school library shelves and into the classroom. So that’s about all we can handle at this time.

 

HEFFNER: So really this is not a peripheral or fleeting problem. This is ongoing. And, do you attribute it to the politics around the 2016 election or was it happening before then too?

 

FINAN: No, as I say the average, even in the early years of the Trump administration was maybe three or 400 challenges a year. This is something that really took off last fall in the run up to the senate or the governor’s race, I’m sorry, in Virginia, the Virginia governor basically ran on a platform of opposing the “Bluest Eye” and you know, it, it caught on other politicians began to pick up on it. And now we see real chaos in states like Florida and Texas where, you know, this is something that people are running on for the first time, that parental rights to censor books in schools and school libraries, and public libraries.

 

HEFFNER: And what have you found to date to be the most effective advocacy of the first amendment in the wake of these accusations?

 

FINAN: Well, I have to admit just between us that it’s probably not our, it’s probably not the letters that we write to the school boards. (Laugh) I could say that, you know, we’re putting ourself on record and providing hopefully some content for people who are fighting at the local level, but, we’re at a stage where we really are kind of back on our heels where the other side has a lot of the momentum. We’ve seen this before in many other, in many other free speech crises. It takes time to organize the opposition, but it is happening. You know, the Texas Library Association has created a group called Texans for the Right to Read. The American Library Association has launched a national campaign called Unite Against Banned Books, and then just many individual parents and students, students are forming banned book clubs in many places.

 

And parents are beginning to circulate petitions to push, to put pressure, opposite pressure on school boards because, you know, and one reason why I think ultimately this is going to be effective is that the American people just like the right to abortion, about 70 percent of the American people are against book banning. So this is really a matter of turning out your supporters and it takes some time to show them that they’re going to be supported and that they won’t be out there on a limb by themselves. And that’s our job. Our job is to work with other national organizations. National Coalition Against Censorship is 57 national nonprofits in every conceivable field, professional groups, religious groups, labor groups and you know, our purpose is to you know, to provide a foundation for, you know, those people fighting at the local level.

 

HEFFNER: As was pointed out in a program I did not so long ago, the original Alien and Sedation Act from the very beginning of the country, we could have gone in a totally different direction. I mean, if something like sedition, the Alien Sedition Act had kind of been upheld progressively over time, the idea that, you know, seditious or other content would be subjected to, you know, legal penalty, you would be subjected to legal penalty if you participated in any untoward or, you know seditious speech. That was, you know. In the current climate folks are not talking about seditious speech. The way that they’re defending it is to say that school children of a particular age ought not be exposed to particular ideas during a period, you know, that that is too early. At least that’s the way that the argument is being made in Florida, for example, about material related to homosexuality or sexuality in general. So there’s not an argument about censoring the opposition, a political party, it’s being proposed again, at least in Florida on an age basis. So what do you say about the attempts to censor for particular age groups?

 

FINAN: Well, I’d say, first of all, that they, this is a huge misrepresentation that the opposition is using to cover what their real aim is. And I think their real aim is to suppress books about race and the persistence of racism, the nature of slavery, LGBT rights. You know, they argue that the parents have rights and we don’t disagree with that. They argue that, you know, that material should be age appropriate in schools. And we don’t disagree with that. Sometimes books are misclassified and need to be moved to a later grade. But that’s not really what this is about. This is just an extension of the battle to try to save America from homosexuality and from so-called wokeness, which is of course fight for equality. So yeah, we don’t accept that argument at all. We think it’s malarkey. But it’s the way they, it’s the way they want to pose. And that’s why Moms for Liberty is one of the leading, you know, leading censorship groups and as much as they deny it you know, you can’t find any other explanation for why school districts will be pulling hundreds of books off their shelves, supposedly for review and consideration, when what they really want to do is make sure that those books remain suppressed.

 

HEFFNER: You know, not to, to overly intellectualize it. But I think that in the case of the advocates for censorship here, the opposition to free expression here in terms of particular age-based delineations, that they’re trying to appeal to a certain sensibility of a parent, right? I mean, there, there is a method to the argument, even if it’s fallacious or in bad faith. And it is usually, you know, in, from experience, at least historically the left or the free speech movement that kind of wants to intellectualize something, that wants to kind of think through the nuances of something. And they’re trying to throw a a nuance out there that you’re saying, you know, separate from the Florida law maybe, or even in the Florida law, there, there are other machinations here. It is, it is not as they say it is. And shifting it from the homosexuality piece to the race piece, I want to get your thought on this, because there is a difference between critical race theory and teaching the history of racism, right? And to my mind, it’s, the former is being used as kind of a Trojan horse to eliminate the latter, right? To use this idea that kids are growing up learning that their race is bad. And, and therefore we’re going to stop teaching about slavery, right? I mean, that’s kind of the intellectualized think logic here, right? I mean, the idea of, and so that’s what you’re dealing with right now, and I’m just wondering whether it’s on the homosexuality issue or on the race issue. Like don’t free speech evangelists like yourself and others defending the movement have to kind of roll up your sleeves and get into the nuance a little bit more because they’re winning, as odd as it may seem, they’re winning the nuance battle right now.

 

FINAN: Well, they’re winning the emotional battle, right? They are they are trying to scare people into believing that their kids are being propagandized. And even in an extreme being groomed. There are claims that teachers and librarians are pedophiles and that the effort to provide books that had deal realistically with sex and gender are really, you know, pornography. You know, there’s not a lot of nuance on the other side, I have to say that. And, you know, whereas our argument is, you know, ultimately what the other side is saying is we don’t want change. We, we don’t want to see kids learning about things that we don’t, we don’t like about the development of our society and the growth of our society. And our argument is, look, this is happening. It’s going to happen, you know, whether you, excuse me, whether you succeed in censoring, a book or not. And it’s important for kids to understand how the world is changing. So yeah, that’s an intellectual argument that, yeah, it’s true. That’s, that’s the one we’re stuck with.

 

HEFFNER: I mean, I’m afraid that in the current battle, as you say, like you said, the defense or opposition to the censorship just hasn’t lined up yet. It, it’s not, you know, if this were football game, they’re still on the sidelines and they’re not set ready to defend. I think part of that is not recognizing maybe the scope of the issue, because you’re suggesting that whether it is the appearance of race or sexuality, or, you know, other things too you know, the history of the Holocaust or genocides that there is an ongoing effort. Every day you’re getting more letters from parents saying the school board has decided to, to ban X, Y or Z book. And, and you’re saying that this whitewashing of history, it’s happening and it it’s happening with some ferocity.

 

FINAN: Yeah. And I think people are picking up on that and they are, you know, they are mobilizing in the ways that I was mentioning and petitions and letters to the editor. And, but I think ultimately this becomes a battle over who’s on the school board. And it’s going to require people to run against those who are advocating censorship. And it does take time for people to make up their minds to make this fight. It’s a scary time to be an advocate for change. And, but so it’s taken a little while for people to find their courage, but they, they will do it. They have done it in the past. This happened in the 1980s.

 

 

HEFFNER: Yeah. Well, I remember also hearing from a professor at the University in Ohio that the local dry cleaner was putting up posters, demeaning her candidacy, calling her names basically, because she was running as I don’t know if she was a PhD, if you want to say an intellect, an educated person, and someone from the academy, someone who’s an expert. And that was, that was being, that was a target on her back. The fact that she was highly educated or is highly educated, that a local business lobbied against her. And it’s likely that these are the kinds of issues on which she or others would vote. And so how much of this is about cultural divide and, you know, wanting to be educated in a way that may not be as liberal or open minded? And, the one thing we also haven’t commented on is in the defense, there is not a lot of exposing of the hypocrisy, because a lot of the people who are advocating banning existing or non-existent curricula are the people who you know, they on social media, you know, they want to be able to express themselves. And they make the argument that the social media behemoths have not allowed them to fully express themselves. So that’s another piece of this that I, that, that I haven’t heard. So I guess as we close here, the two-parter, which is how much of this is just about, you know, some communities are not as open minded as others, and you’re going to constantly have this conflict between different members of community who represent different interests about, you know, what they want to do with education. And then secondarily this question of, you know, hypocrisy and the fact that the, right now, the people who are advocating for the censorship bemoan that same censorship that they say is applied to them on social media.

 

FINAN: Well, we, we have often seen the phenomenon of people protect, wanting to protect free speech, but only for themselves. That’s a through line in American history. And so it is, it is hypocritical. And I do think this is part of a larger cultural war, battle, or division that’s existed for many, many years. You know, it was in the 1920s, so a hundred years ago, you know, that they were banning the teaching of evolution. And so it’s an ongoing battle. It flares up from time to time and it’s really painful when it does. But the ultimate result has been up till now that those attitudes, those ideas, those movements fail. And that and that, you know, culture moves on. And it’s my firm belief that that’s going to happen again this time, even though it’s pretty scary right now.

 

HEFFNER: I know this is a kind of new found something maybe you haven’t heard often, or that you think is either ingenious or ludicrous, but I just wanted to close by asking you about reproductive rights and health and the abortion debate, because to my mind, just as an objective observer, not someone who’s taking a side here on pro-life or pro-choice, I think that there’s a first amendment law waiting to be born about reproductive health and that the right to an abortion is actually in the first amendment. And you don’t have to go living constitutionalist. You can go straight to the text and some of the very early precedents to maybe think that. And I wonder if to you that is a non-starter or, you know, in fact, a realistic notion?

 

FINAN: I’m a little more worried about going back on precedents that we’ve established, than on establishing new precedent. You know if they can, if they can change settled law after 50 years you know, they can keep going back. And it’s not just intermarriage and it’s not just gay marriage. We have a lot of very important free speech precedents that that protect, that protect us today that may come under fire as well if the court, you know, continues this very headlong, you know, retreat from its previous its previous decisions. So,

 

HEFFNER: Right. But then again, Chris, you have a country and a constitutionalism that says I’m not concerned about Casey or Roe or Miranda or Brown v. Board, or, you know, you name it. But then go back to that original document. I mean, I think that’s why there’re going to be justices, at least in the court’s current composition who win the debate because people just gloss over the decisions and they want to go to the constitution. So I guess just point blank, am I crazy? Or could the first amendment be interpreted with the right to, you know, express yourself as a woman through an abortion? And it’s occurred to me for many years, but you know, now I’m saying it and I firmly believe it’s a legitimate way of thinking. And I just wonder if you do too?

 

FINAN: Well, I’m not I’m not a lawyer. You know, I was trained as a historian and so I’m not, I’m not a real expert on all the law that’s involved, but…

 

HEFFNER: I’m saying, I’m asking you this as an expert on free expression. I’m saying, you know, is there a way to interpret the first amendment that gives women the right to choice?

 

FINAN: I’m happy to take a look at that.

 

HEFFNER: (Laugh) – okay.

 

FINAN: I haven’t, I haven’t seen, I haven’t seen it advanced seriously yet, but…

 

HEFFNER: It comes from that same idea though, that when, when Justice Alito and when this airs, he may or may not have spoken for the court, in saying that privacy doesn’t exist in the constitution. And I would say that while it’s not the word privacy, there are examples of privacy in the original document. And in the Bill of Rights, Chris Finan, thank you so much for your insight and time today.

 

FINAN: Thanks very much for having me.

 

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