The past few weeks have felt unusually fraught and hectic even for the age of Trump, but some calm and closure seems to be on the horizon. Jimmy Kimmel is back on ABC and receiving high ratings. And Charlie Kirk has been memorialized in a truly remarkable event, a blend of personal tribute, religious revival, and political rally held in an NFL stadium that was often quite moving and certainly something that could only have occurred in America.
If the dust has indeed settled a bit, then it is an opportune time to take stock of the right’s response to Kirk’s horrific assassination. More interesting, and potentially more consequential, than the gross and revolting claims that many lefty voices online have aired or the only slightly less nauseating statements of mainstream liberal pundits that flirt with the line of blaming Kirk for his own murder, are the anti-free speech moves and utterances (some already walked back) of administration members and other Republican figures. My own preferences are close to what is often now called “free speech absolutism.” But even if one does not subscribe to this outlook, there are more proximate and practical reasons why it would be a grave mistake for Republicans to continue down the path they have stumbled on in their grief and anger. For in America right now, the right has more to lose by giving up on free speech—either through governmental action and legislation, or through the mechanisms of social and economic retribution with which the last decade has made us so familiar—than the left.
One notable fact about the right’s reaction is how little they have been moved by the conventional appeal to imagine the shoe on the other foot. While there have been many Republicans and conservative intellectuals critical of their censorious peers, a tremendous amount of derision has been expressed toward the admonition that (as the president of FIRE put it) “the weapon you reach for today will be used against you tomorrow.” To these figures, the left has already gone so far that there is no further escalation for it to fear: the epoch of the Great Awokening represented a nuclear attack not only on expression of conservative opinions, but even on the ability of conservatives to exist openly in civil society at all. If the left will, in the realm of cancel culture, ruin a high schoolers’ life because they dislike his smile, fire grocery store workers for not wearing Pride insignia, hound a truck driver out of his job because of the accidental placement of his hand, rescind university acceptances for private remarks made by teens years earlier, and bully professors to resign for making factual statements in private conversation; and in the more conventional political domain, will pressure social media companies into removing (often true) speech that they do not like from both regular people and experts and Republican officeholders alike, cajole the media into suppressing credible news stories that paint their candidate and his family in an unflattering light, attempt to make a patently inept musical theater devotee a “disinformation czar” within the Homeland Security, champion a head of NPR who thinks “truth is a distraction,” and repeatedly see its leaders treat the First Amendment as a problem and call for censorship—well, after all this and much more, what else is there to fear? A free speech regime is sometimes described as a “non-aggression pact.” But conservatives have already been the victims of aggression, and more of the same seems likely to come unless the left is given a taste of its own medicine.
For segments of the online right, then, the desire for a stable pro-free speech consensus in the future dictates reprisals in the present. If the left can get holders of mainstream opinions fired and exact enormous social costs for minor mistakes, and the right cannot even exact a pound of flesh against ghoulish celebrations of the killing of one of their major figures, then there is no reason to believe the left will ever let up. “This isn’t vengeance, it’s vaccination,” as one twitterato put it; “free speech is much stronger as a detente than as a principle,” in the words of another. Deterrence needs to be established; the peace of free speech through the strength to cancel in their turn. This is sort of the free speech version of the (rather wishful) interpretation offered by some MAGA types of Trump’s tariffs as the instruments for getting to truly free trade, by showing that we won’t allow others to keep “ripping us off.” For these folks, the principled free speech absolutist in reality harms his cause, just as a nation of dogmatic pacifists would invite invasion.
This is not an obviously incorrect position. Indeed, there have been parallel ideas regarding the history of religious toleration. The real reason that toleration succeeded in various Western countries, it has long been argued, was not because of the intrinsic power of the principle, but because so many different sects had been on the receiving end of attacks and no one could envision permanent dominance any longer. Locke’s Letter Concerning Toleration, a great intellectual historian once wrote, was able to win so many adherents only because “each party in turn had learnt by sad experience the evils of persecution.”
“The right has little to gain by a tit-for-tat war.”
Compelling as some on the right seem to find this argument, and plausible as it may seem as a general matter, in our present circumstances it is too clever by half. The right has little to gain by a tit-for-tat war. For one thing, it’s pure speculation that censorship and persecution from the right will restore a just appreciation for free speech, rather than simply intensifying the degradation of these norms and leaving both parties feeling that they must strike their critics with full force whenever they have the chance lest they play the patsy. And there is considerable harm to be done to the right if it leaves behind adherence to free speech now. On this issue, purity and pragmatism are united. Best to go straight to the point, and start protecting free speech for all.
Hypocrisy is a regrettable if ordinary part of politics. But what the Republicans have been up to since Kirk’s assassination is more than ordinary hypocrisy. No presidency—in its campaign and early stages of its administration—has made the protection of speech more central to its messaging. Free speech was integral to the Trump platform and the Republicans’ 2024 strategy generally; Trump signed an anti-censorship executive order on inauguration day; MAGA has embraced Douglass Mackey, imprisoned in 2023 for spreading satirical memes during the 2016 election; it has claimed to be championing free speech in its contentious negotiations with universities. Perhaps most strikingly of all, the administration has made free speech central to its foreign policy in a very distinctive way. Most famously, Vice President JD Vance rightly chastised Europe for its appalling recent record on speech issues, even though this was a move that cost the administration some diplomatic capital. But this emphasis is also visible in such moves as the nomination of an accomplished free speech lawyer to run public diplomacy in the state department and quickly ending the Global Engagement Center which pressured corporations into curtailing online expression.
Set against all this messaging and activity, even small moves against free speech risk prompting an unusual level of backlash and disillusion—an outcome that the conduct of the administration and its surrogates in recent weeks seems like it might already be bringing about.
“Americans really do equate democratic self-government with being able to say what you want.”
Even beyond official statements and policy, however, MAGA has been associated with free speech at the broader level of “vibes” in a way that no political movement has at least since the louche Bill Clinton was clashing with the remnants of the Moral Majority. It remains flabbergasting to liberals that, despite bombarding the public with messages about the threat to democracy that MAGA represents, Trump and his party have consistently kept pace with Democrats on the matter of concern about democracy. While it’s hard to tease out exactly why this is so, the perception that Democrats are the party of admonishing you to “watch what you say” must play some role. In a way that does not hold true in many of our peer countries, Americans really do equate democratic self-government with being able to say what you want, how you want to. Trump’s own plainspokenness and indifference to taboos made him an obvious avatar for these frustrated instincts.
MAGA’s free speech coding, then, ties into a wider small-d democratic ethos which bristles at the elite-driven censoriousness that manifests in enforcing new standards of “civility” and “respect,” casts ever greater parts of the vocabulary or forms of cultural production as “problematic,” and distrusts the populace’s capacity to participate in public debate without curation from above. This attitude is what I’ve called “cultural conservatism” but which is perhaps better spoken of as “cultural libertarianism”: an exhaustion with the schoolmarminess, intrusive speech-policing, and oversensitivity that seemed to have escaped from academia and HR departments and conquered civil society. The efficacy with which Trump channeled this sentiment was best encapsulated by the infamous quote from an anonymous Wall Street bro in the Financial Times a week before the inauguration: “I feel liberated…We can say ‘retard’ and ‘pussy’ without the fear of getting cancelled…it’s a new dawn.” This was a kind of accidental philosophy, like when Trump said that he “loves the poorly educated” (it is practically the definition of democracy that it does not erect barriers of education or achievement for participation in civic life) or that “if you don’t have borders, then you don’t have a country” (collective self-government is not consistent with a situation in which anyone in the world can claim the rights of citizenship on demand). Much as certain pockets of the intelligentsia have grown uncomfortable with the idea, for many Americans if freedom means anything, it means being able to describe the world in the terms that seem most appropriate (or most colorful, or compelling, or whatever) to you. Conversely, one of the burdens of living in a free society is having to put up with an endless flood of verbiage that one finds deeply unpleasant and upsetting.
For a movement that has ridden this tiger, it is especially incongruous to invoke a need to regulate hate speech or to cheer the kind of crowdsourcing efforts to inflict professional and social consequences that invariably wind up harming people who had said something merely regrettable or untoward. As a sustained protest against enforced sanctimony or reverence – or even (its critics might say) decency—MAGA is the last force in American life that can credibly seek to place people beyond the pale for disagreeable or even outrageous expression.
Viewed in this light, it was more than a little ironic to see the attorney general and the president invoke the concept, recently so dear to progressives, of hate speech. The cruel irony is that this is exactly what the shooter alleged against his target. Robinson believed that he had to take violent action to stop Kirk’s from spreading “hate.” Since his murder, moreover, a number of prominent progressives have doubled down on this accusation. As repugnant as this is, the basic problem with American society now is not that we have too much hate speech—the latitude for which is probably better understood as a safety valve and prophylactic against violence, rather than an accelerator of it—but that we need to get better at living with speech we find hateful, frequent encounters with which are inevitable whenever there is a free and open public sphere.
John Stuart Mill, often cited by proponents of “civil discourse,” in fact expected public life to be full of vehemence and intemperance (“truth, in the great practical concerns of life…has to be made by the rough process of a struggle between combatants fighting under hostile banners”) and ridiculed his opponents mercilessly. He even joked about wanting to assassinate the Emperor of France (a country in which he spent a great deal of time), and expressed disappointment when a very real attempt failed. Any democracy worth its salt will not look like an Aaron Sorkin script. Democracy is not about some mushy “unity.” There are real divisions; not all sides can win. Of course there will be moments of vulgarity and sharp conflict and people will say foolish and awful things. Of course people can be deeply hurt when their beliefs or allegiances or identities are questioned. But the whole gamble of democracy is that, all things considered, it is worth enduring this pain, because the alternative lies somewhere on the spectrum between the “managed democracy” of Europe, the politics of which seem more artificial and brittle by the day, and the soulless if contented stasis of Brave New World. Rather than breathing new life into some of the worst themes of the recent left like hate speech and cancellation, it would be far better to model a spirit of vigorous and even vitriolic engagement coupled with unswerving protection of the rights of all.
Another reason why scrupulous fidelity to free speech is more important for Republicans is that they are, or at least profess to be, the conservative party. And a central tenet of conservatism is the protection of cultural particularity and traditions that have stood the test of time. In America, our enduringly capacious understanding of free speech has been one of the most distinctive and durable, if imperfectly realized, aspects of our political culture. For as long as the United States has existed, and since well before the Warren Court brought us into our currently maximalist phase of First-Amendment jurisprudence, the Old World has marveled at our unrivaled liberty (or lamented our frightful “license”) of speech. It is one thing for contemporary progressives, who have made a habit recently of portraying America as irredeemably racist, sexist, and oppressive, and who routinely look outward for moral guidance (to Scandinavia, or China, or the Third World, depending on the particular progressive flavor), to abandon American ways. It is quite another for the party that is supposed to defend those practices most distinctive of our country to do so. If an American party of conservatism isn’t steadfast on free speech, one wonders what it is even trying to conserve.
“Conservatives should work to lower the stakes of ‘poasting’ generally.”
Along these lines, it has been a standard aspiration of conservatism to manage the social change that inevitably accompanies technological and economic development in a humane way that minimizes disruption to the social and moral fabric. Quite apart from abstract philosophical reasons for supporting free speech, this supplies another reason for conservatives to steer clear of making social media an engine of personal destruction, however enticing the prospect might be of getting a political enemy fired. For social media remains a kind of un-normed space. It has unsettled our traditional distinctions between public and private, yet no new expectations or conventions have established themselves. Even if social media posts are visible to the outside world, most people do not think of X or Facebook as a definitive public record of their beliefs; they think of it more like a place to vent, and closer to an off-the-cuff private conversation than, say, a letter to the editor—not a forum in which they owe others an account of themselves, in which they’ve committed themselves to a position once and for all. Instead of making offhanded outbursts on social media, even cruel or revolting ones, into life-ruining events, conservatives should work to lower the stakes of “poasting” generally.
Progressive cancel culture was, moreover, driven by a sense of moral emergency. America was afflicted with so many grave injustices, on the left’s telling, that conventional virtues like charity, forgiveness, and a sense of proportion were transformed into luxuries that we could not afford. But this is, almost definitionally, not what a conservative believes. As the great political scientist Samuel Huntington wrote, “the essence of conservatism is the passionate affirmation of the value of existing institutions…[the conservative] is fundamentally happy with the established order.” It is a bedrock tenet of conservatism that society is not in such a dire state that we cannot afford to be humane.
Indeed, one reflection of the health of American society in which conservatives should take heart is precisely that free speech remains popular. Although there are concerning signs of weakening appreciation among younger generations, overall Americans are still highly committed to free speech. And beyond its general popularity, freedom of speech looks to have been an important glue holding together the unruly family that is the Republican party under Trump. One of the few things that united its parts was a sense that their ability to express themselves and advocate for their beliefs was under sustained progressive onslaught. Among other things, religious conservatives claim it to oppose what they consider compelled expressive acts that contravene their faith (as in the famous case of the Colorado baker Jack Phillips); the tech right supports it out of anger at pressures from the left to engage in digital censorship and loathing of the European content regulations that obstruct their operations, as well as an impatience with having the parameters of discourse dictated to them by classes of people they clearly regard as their intellectual inferiors; and the downscale “deplorables” have an instinctive hatred of speech-codes and political correctness. Compromising its stance as the free speech standard-bearer means pulling at a thread that might unravel the coalition. And doing so in the blunt-force, headline-catching way that Trump, Carr, and Bondi did last month had the further negative consequence of overshadowing the latest news about the vastly more widespread and effective censorship that the Biden administration engaged in—the very sort of issue that helped push important new groups into their camp.
Free speech is vital for MAGA in light of the third leg of the stool mentioned above. For one of the legacies of the Trump years has been the proletarianization of the Republican party. The Republican party is more working-class, and less entrenched in our main culture-making institutions, than at any point in decades. This has tremendous implications for the question at hand. It means that the Republican party is highly unlikely to control the levers by which any restrictions on hate speech or misinformation are actually enforced. In our modern managerial society, the credentialed will have vastly greater ease in navigating a constrained speech environment than will “the poorly educated” dear to Trump. Indeed, much of the social value of higher education today consists in gaining tacit knowledge about how to avoid the ever-proliferating web of the unsayable.
Speech-restricting regulations and legislation are inevitably extremely broad, and will leave very wide latitude for the discretion of the enforcer in deciding what falls under its umbrella. Historically, this has been a game that has favored the educated, the connected, and the credentialed, and it has been the less-educated and the lower-class who have tended to bear the brunt of speech restrictions—a lesson that is unfortunately being relearned again in the United Kingdom at present, where the people being arrested and harassed for online messages are overwhelmingly not from the Oxbridge set.
“There is an egalitarian spirit behind free speech.”
There is an egalitarian spirit behind free speech that is especially important for populist movements to embrace. On this view, free speech is grounded in the recognition that elites and the professional classes will have an advantage in the unavoidably selective (not to say, capricious) process of deciding when disagreement becomes an actionable “dissemination of hate,” when criticism or rebuke constitute “insult” or “defamation” of a religious, racial, sexual, or ethnic group (to use language common from such legislation in other parts of the world). Understood in this way, free speech is quintessentially meant to protect those outside the elite process by which the etiquette around appropriate speech is formed. To reuse a quotation I’ve put in these pages before that I think captures the spirit that every self-aware populist tendency should have: James Fitzjames Stephen, the great Victorian jurist, made this same point when critiquing blasphemy laws that supposedly did not restrict “serious or fair discussion” of the merits of religion but simply required observation of “the decencies of controversy”:
If you allow coarse and vulgar people to discuss these subjects freely, they must and will discuss them coarsely…You cannot send a man to gaol for not writing like a scholar and a gentleman when he is neither one nor the other…Practically the result would be what it always has been. No such cases [against educated and affluent heretics] would ever be tried; and the result is that so long as the law is what it is, it will always afford an example of that unequal justice which is much the same as injustice. It will be a law which may now and then hit the weak, but which the strong will always evade.
What’s more, it’s not only that the left has an enormous home-field advantage in those areas—the legal and bureaucratic sides of government, civil society, and the hard-to-decipher spaces between the two that the Twitter Files helped expose—where enforcement of speech-restriction will actually occur. It’s also that many of the arguments the right wants to make are much more easily caricatured as “hateful” or “discriminatory” or (the castigation of choice these days) “fascist.” The downsides of affirmative action; the cost to culture and quality of life caused by mass migration; the biological reality and moral importance of recognizing sex difference—we know that these and many other issues will be classified as out of bounds on any but a maximalist interpretation of free speech, because we’ve already seen it happen. The left is constantly pushing the boundaries on this front – recall that even such virtues as punctuality and keeping the noise down were decried as white supremacist just a short while ago—and the right simply cannot compete here. American conservatism largely consists of those people who have better, or at least other, things to do than redefine ever greater swathes of substantive discussion as exhibiting one or another form of hatred or phobia.
In any censorship arms race, conservatives are bound to lose. The kinds of censorship that are available to them will wind up being ineffectual, even silly—as in the case of jawboning Jimmy Kimmel, an eye-catching and symbolically offensive incident that had no chance of actually extinguishing the messages that conservatives disliked. It is a telling fact that, before the ratings boost that Trump’s persecution gifted him, Kimmel’s audience was distinctly smaller than that for Heather Cox Richardson’s Substack, which was purveying these same falsities about Kirk’s shooter’s politics. But (thankfully) there is no legal mechanism by which Richardson’s dissemination of her batty views via what is basically a glorified email list can be shut down.
It is an optimistic piety in certain speech-libertarian quarters that censorship does not work. This is not true—restrictions on speech can be immensely effective in certain circumstances. But those circumstances do not presently obtain for American conservatism. Instead, MAGA attacks on speech will tend to be counterproductive: They will make martyrs but not silence criticism. At most, they will modestly hasten the decline of already failing properties. The realistic prospects for right-wing discourse control today recall Tocqueville’s depiction of the incompetent attempts to control the press by the Church before the French Revolution:
Authors were persecuted just enough to elicit complaint but not enough to provoke fear. They were subjected to enough restraint to provoke resistance but not to the heavy yoke that might quell it. The attacks they endured were invariably drawn-out, tempestuous, and futile affairs whose purpose seemed not so much to dissuade them from writing as to spur them to it. Complete freedom of the press would have been less damaging to the Church.
Because conservatives cannot engage in the sorts of effective policing of discussion, formal and informal, that progressives have been able to carry out—and even then, with mixed results and at the cost of quite high collateral damage to their coalition—there is simply no win to be had. Conservatives’ reputation as the sturdier defenders of free speech will be compromised, but no lasting gains against the ideas they deplore will be made. Much better for the right to trust in persuasion—where indeed it is reaping great gains across basically every issue that defined wokeness over the last decade.
The foregoing analysis does not mean that there is nothing for conservatives to do on speech issues. It just means that instead of trying to wield the same weapons as their adversaries, they should blow up that whole armory. The state has a vital role to play in protecting free speech throughout civil society. The Trump administration, and even more the Republican congress, has many levers it can pull to put free speech on a sounder footing throughout the institutions of the country and therefore to inoculate the country against any return of progressive cancel culture. FIRE has a detailed set of proposals. Republican state governments can set up centers or provide funding for fields that will inject ideological diversity into academic monocultures, which will help to expand the Overton window on those campuses. The law professor Jonathan Turley has a plan for federal legislation to strengthen free speech at universities through funding requirements that Congress could act on any day. Several early actions of the administration, as noted at the outset, pointed in this promising direction. Both for the sake of their party, and the good of the country, conservatives should continue in this vein, closing down the Censorship-Industrial Complex rather than responding to the death of one of their most successful activists by doing a poor imitation of progressive censoriousness.