Publication Date
Winter 2023
Abstract
Most Americans do not realize that, notwithstanding the First Amendment's free speech guarantee, for most of our nation's history, judges sent men and women to prison for expressing ideas considered too "dangerous." It was not until the late 1960s that the Supreme Court rejected the clear and present danger doctrine, insisting that statutes banning speech must draw a distinction between advocacy of ideas and advocacy of imminent lawless action. The Court held that under that constitutional norm, the government could not send a Klansman to prison for expressing racist, anti-Semitic, or otherwise dangerous or offensive ideas. Since then, banning the advocacy of ideas has been presumptively unconstitutional.
In recent months, however, a number of state and federal measures have aimed to ban discussion of so-called divisive concepts, including Critical Race Theory ("CRT") in public schools and workplaces. Others target books, such as The 1619 Project, or the use of selected curricular materialsf rom groups,f or example, like the Southern Poverty Law Center's Learning for Justice Project. Still others target anti-racist diversity, equity, and inclusion trainings for government employees. Such materials and trainings have been declared anti-American, dangerous, hateful, or even racist by neo-patriots, persons in and outside government who seek to use the law to ban the expression of ideas they find objectionable. Remarkably, without any discussion of core First Amendment doctrine, what CRT is, or what critical race theorists have written, governments have once again responded to public pressure and declared some ideas and materials too dangerous and sought to punish some speakers.
Recalling similar periods of viewpoint censorship during the last century, this essay examines the constitutional implications of bans on CRT, The 1619 Project, and other materials, and provides a constitutional roadmap for challenging such bans on First and Fourteenth Amendment grounds.
Recommended Citation
Bryan K. Fair, Crying Wolf: Neo-Patriots, Critical Race Theory, and the Constitutional Protection of "Dangerous" Ideas, 27 U.C. Davis Soc. Just. L. REV. 1 (2023).