Defending free speech should be easier

24-HOUR DORMAN TODD DORMAN

It shouldn’t have to be this difficult.

If you received a decent Iowa public school education, you’ve likely heard one of the First Amendment’s biggest jobs is protecting unpopular speech from restrictive whims driven by political winds.

Iowa laws spawned by Senate File 496, pushed to passage by Republicans who run the Golden Dome of Wisdom, now redder than a book fire, would serve as a prime example of the need to protect speech the powers that be dislike.

The bill directs school districts to remove books from library shelves if they depict sex acts. The Department of Education has given schools little guidance on choosing what stays and goes. Some districts are playing it safe by removing many titles, including classics and award-winning literature.

But the real intent of the law is to remove books about LGBTQ people, racism and other topics and issues conservatives don’t like.

The law also prohibits teaching anything in K-12 connected to the existence of LGBTQ people in our communities. Conservatives also want to make sure LGBTQ students are no longer supported at school.

Clearly, the law restricts speech and expression. The law’s broadness and vagueness are meant to create a massive chilling effect among educators who fear punishment for teaching the wrong lesson or book.

Speech disliked by powerful politicians is being locked away. Proving the law is unconstitutional seems like a slam dunk. But opponents, including the ACLU, Lambda Legal, Iowa Safe Schools, teachers and students, this week took their second crack at blocking the law in federal court.

Opponents are resting hopes on a July U.S. Supreme Court ruling, Moody v. Netchoice, dealing with laws in Florida and Texas restricting the ability of social media platforms to moderate content.

In the ruling, Justice Elena Kagan lays out a path to determine the constitutionality of laws limiting speech. Kagan laid out a blueprint Iowa plaintiffs hope to follow.

Kagan wrote step one is assessing a law’s scope, including who will be affected, even beyond its stated targets. The next step is determining which applications of the law violate the First Amendment. Third, measure those violations against what remains in rest of the law.

Federal Judge Stephen Locher, who previously granted an injunction blocking the law, will get the first look at the latest legal strategy. From there, it will likely head to the conservative Court of Appeals for the Eighth Circuit, which tossed out the earlier injunction and permitted the law’s enforcement. But that ruling did help opponents by rejecting the state’s argument the law’s limits, as applied to schools, affect “government speech,” not First Amendment protected speech. Nope, not going to fly.

Again, this should be an easy call. But Cornell clinical professor of law G.S. Hans argues protecting unpopular speech is no longer persuasive.

“Courts are allowing unconstitutional and censorious laws to limit the speech of disfavored people who are unlucky enough to live in states governed by conservative majorities,” Hans wrote at Balls and Strikes.

I think he’s talking about us.

Comments: (319) 398-8262; todd.dorman@thegazette.com