The Corner

Law & the Courts

Viewpoint Neutrality Protects Both Drag Queens and Millions of American Christians

From left: Sohrab Ahmari, moderator Ross Douthat, and David French at the Catholic University of America, September 5, 2019. (Institution for Human Ecology/YouTube)

Late last week I debated Sohrab Ahmari at Catholic University. Our exchange was of course inspired by his broadside against me in May, a broadside that began (oddly enough) with a seemingly-random tweet about something called “drag queen story hour.” Sohrab wrote, “If you can’t see why children belong nowhere near drag, with its currents of transvestic fetishism, we have nothing to say to each other. We are irreconcilably opposed. There’s no polite, David French-ian third way around the cultural civil war. The only way is through.” This is the tweet that launched a thousand think-pieces.

Even though the battle over “Frenchism” began with a tweet about drag queens, I honestly did not expect that discussion of drag queens would consume so much of our debate (you can watch the whole thing here). Yet the question of how (or whether) the right should respond legally to drag queens in libraries permeated much of the proceedings. My position was simple — I don’t like drag queen reading hours, but I also want to preserve for all Americans the First Amendment-protected right of viewpoint-neutral access to public facilities when those facilities are opened up for public use. I don’t want the government dispensing access on the basis of its preferred messages or its preferred speakers. Handle bad speech with better speech. Counter bad speakers in the marketplace of ideas, not through the heavy hand of government censorship.

So if my way is inadequate, what was Sohrab’s better plan? I pressed him on this point, and he countered with two ideas. First, hold a Senate hearing where Ted Cruz and Josh Hawley would make the leader of a national library association “sweat.” Second, pass local laws specifically banning the practice. The first idea is hardly worth addressing. It does nothing except (further) elevate drag queen reading hour on the national stage, and it would be unlikely to go as well for his side as Sohrab expects. Librarians can be quite effective at waxing eloquent about the First Amendment and pointing to the countless other ways that public access to libraries improves the public square.

Sohrab’s second point — an outright ban — is worth addressing at greater length. Our present regime that broadly protects viewpoint neutrality in access to public facilities is the hard-won result of decades of litigation from free speech and religious liberty advocates, and it represents both a public good in its own right and a practical blessing for millions of American Christians. As our government continues to grow — including by creating an immense number of public facilities — it is quite simply just that taxpayers are able to have equal access to the facilities they paid to create.

Of course that access can be conditioned on adherence to otherwise-applicable statutes (such as existing criminal statutes, including laws prohibiting public indecency), but to grant citizens the ability to use public facilities to spur public debate advances the right of free speech, the right that Frederick Douglass called “the great moral renovator of society and government.” Free speech, “of all rights,” Douglass said, “is the dread of tyrants. It is the right which they first of all strike down. They know its power.”

But let’s move from the theoretical to the practical. Few American communities benefit more from court-mandated equal-access rulings than the American Christian community. Strike down viewpoint neutrality as a principle (or close public access to public buildings entirely), and you would suddenly find the doors of university classrooms, library reading rooms, and publicly-owned civic centers slammed in Christian faces in cities across the land. To take one example, I played a very small part in a very long legal battle waged by my friends and former colleagues at the Alliance Defending Freedom to maintain church access to public buildings in Sohrab’s own town, New York City. For years the city granted community groups broad access to its schools, but it banned worship services. ADF waged a more than decade-long legal fight to allow church access to schools — and even faced potential final defeat — before Bill de Blasio reversed the policy.

During the debate, Sohrab ominously mentioned that there are 35 “chapters” of drag queen reading hour across the land. Yet there are thousands of churches that access public buildings. There are tens of thousands of chapters of Christian groups such as Young Life, the Fellowship of Christian Athletes, Cru, and InterVarsity Christian Fellowship that access public buildings. In any given year, there are millions of American Christians who use those spaces to preach, teach, worship, and evangelize. Even if you don’t care about constitutional principle — if you only care about raw power — equal access is one of the most powerful tools in the American Christian arsenal.

Finally, if you think for one moment that censors could manage to enact a plan that protects virtuous speech whilst only prohibiting the forms of expression you abhor, it’s important to remember that in many American spaces, leaders find Christians far more abhorrent than drag queens. I can’t count the number of times my Christian clients were compared to the Klan by university administrators and activists. While there were times we could persuade administrators to protect equal access in spite of their revulsion for orthodox Christianity, there were many other times when only the appeal to law or politics could protect access to the Gospel.

Simply put, “free speech for me but not for thee” cannot be an organizing principle of American life. It is unjust and unwise.

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