A Conservative Judge’s Ruling about Drag Shows Is a Battle Plan to Undo the First Amendment

What one federal judge’s war on queer college students tells us about the future of free speech. (Spoiler: it’s nothing good.)

This week, District Judge Matthew Kacsmaryk ruled in favor of University President Walter Wendell who banished a student group’s drag show fundraiser from campus. According to Kacsmaryk, plaintiff in the case, the student group, failed to “establish a First Amendment right to conduct a ‘PG-13' drag show.”

Kacsmaryk, “a Christian legal activist,” was appointed by former President Donald Trump and quickly made a name for himself for his nakedly political rulings. His fondness of issuing national injunctions to advance conservative preferences and policies by judicial fiat has even earned him the nickname, “Chief Justice Kacsmaryk of the Supreme Court of the United States, Amarillo Division.”

So the result in the drag show case, Spectrum WT v. Wendler, should surprise no one. But even so, Kacsmaryk’s reasoning on teh way to that result should concern everyone, conservatives and liberals alike.

Mark Joseph Stern at Slate called the decision a “shocking rejection of basic free speech principles.” Chris Geidner at Lawdork said it ran counter to decisions by moderate and, yes, conservative judges in Tennessee, Florida, Utah, and Montana.

Stern, Geidner, and others have already explained how Kacsmaryk’s decision is out of step with recent cases confronting similar disputes. And, yes, drag shows are obviously constitutionally protected. It is not a close call. So Kacsmaryk’s disdain for precedent is seriously concerning.

The case shows how ultra-conservative judges are going to undo the First Amendment’s application to all kinds of speakers and speech disfavored by the right.

But the concern must not stop there. Spectrum WT has implications far beyond the facts of that case. Spectrum WT shows exactly how ultra-conservative judges are going to undo the First Amendment’s protections for speakers and speech disfavored by the right — while continuing it for everyone who happens to be white and religious.

The Second Amendment as a Limit on the First Amendment

Kacsmaryk showed the public exactly how the conservative legal establishment is going to do so: borrowing the playbook from the Supreme Court conservative supermajority’s reinvention of the Second Amendment in New York State & Rifle Association v. Bruen. That playbook relies on history — and only history — to interpret the scope of constitutional rights.

As the Court (by Justice Thomas) wrote in Bruen, “The test that we … apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” And, to the Court, it is that simple: history, and only history, holds the answer. (Ed.: It is not that simple.)

Worse, the Court in Bruen said that this reliance on history is how it has interpreted many other constitutional rights, including the First Amendment. It wrote, “This Second Amendment standard accords with … the freedom of speech in the First Amendment.” As the dissent pointed out, being held hostage to history is not actually how the Court has interpreted the First Amendment.

At any rate, in a country built on the disenfranchisement of vast swaths of the population and on an economy of slavery, relying solely on history is an affirmatively awful way to interpret constitutional rights (unless you happen to be of a class that was not subjugated at the Founding). This is to say nothing of the tradition of our puritan and prudish forbearers who, among other things, believed that women are witches — some role models.

The invitation to lower court judges was clear if only implicit: use history to remake the First Amendment in a conservative image.

But the invitation to lower court judges was clear if only implicit: use history to remake the First Amendment in a conservative image. Just as history can be bent in service of expanding the Second Amendment, it could be used to narrow the First Amendment. As it conveniently happens, because of our conservative history, any narrowing of the First Amendment will effect predominantly those the ultra-right loathes. For the future of free speech, this is the whole ball game.

Kacsmaryk‘s Anti-History History of the First Amendment

Kacsmaryk quickly accepted the Court’s invitation in Bruen to reach his preferred result in Spectrum WT. In a way, Kacsmaryk starts out on more honest footing than the Court in Bruen did. He admits that First Amendment analysis is rarely guided by history alone or, even, at all. But, no matter, he then proceeds to doing just that.

Criticizing Spectrum WT’s lawyers for relying — gasp — on case law, Kacsmaryk wrote that his “historical analysis reveals a Free Speech ecosystem drastically different from the ‘expressive conduct’ absolutism of Plaintiff’s briefing.” (A shorter word for “expressive conduct absolutism” is binding precedent.)

As his points of reference, Kacsmaryk invoked five historical “facts” — more on that in a moment — and concluded that together, “the newer cases retained older rules,” including “an important outer limit on ‘expressive conduct,’ especially sexualized ‘expressive conduct.’”

Where to begin…

First, Kacsmaryk’s approach is contrary to settled law. It is simply not the case that judges are to engage in some kind of Bruen-adjacent analysis of whether a particular kind of speech was historically protected at the Founding. On the contrary, the Supreme Court has explicitly directed lower courts not to do this. Courts have no “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

Second, five cherry-picked “facts” can hardly be said to accurately reflect the history of freedom of expression in this country. At any rate, only two of these “facts” (one of which is not a fact at all) come from the time of the Founding. The others do not. One comes from twenty-five years before the ratification of the First amendment. Two others come from forty and eighty years after the ratification.

Third, Kacsmaryk gets most of his cherry-picked history wrong:

• Kacsmaryk argues that “the Founders focused on ‘prior restraints’ of publication — specifically, political pamphlets.” This is not true. By the time of the ratification of the First Amendment in 1791 prior restraints were obsolete. Even in England, prior restraints had been obsolete since the 1690s. The Founders did not focus on prior restraints, because prior restraints did not exist in any meaningful way.
• He also says that “draft Free Speech Clauses focused on protecting the ‘right to speak, to write, or to publish their sentiments.’” This is true but incomplete. It ignores that expressive conduct at the Founding was understood to include things like singing and public performance.
• And, he argues that “Blackstone treatises extolled ‘freedom of thought’ and recognized a police power ‘to censure licentiousness.’” This is true, but it ignores that the Founders loathed Blackstone, an Englishman who died before the First Amendment was adopted. Thomas Jefferson wrote that Blackstone did “more towards the suppression of the liberties of man, than all the million of men in arms of Bonaparte.” And, the extremes of Blackstone’s views on freedom of expression were rejected in early American scholarship even by conservative commentators.
• Kacsmaryk also asserts that “the Comstock Act of 1873 prohibited the mailing of ‘obscene, lewd or lascivious’ materials.” This is true, but it ignores that the Supreme Court has long since “demolished what remained of Comstock’s influence on the law.” It also ignores that the Supreme Court has narrowed (and, indeed, reversed restrictions under) the Act by requiring a finding that the expression in question is, in fact, obscene. As the Court cautioned, “sex and obscenity are not synonymous.”
• “Joseph Story’s Commentaries defined the Free Speech Clause as protecting the ‘right to speak, write, and print… opinions upon any subject whatsoever, without any prior restraint,’ but not the right to injure any other person in his rights, person, property, or reputation’ or to disturb the public peace.” This is true, but not in the way Kacsmaryk thinks. Story was talking about the right to be free from libelous statements, not some free-floating censor’s privilege to stop speech one does not like or believes is dangerous or harmful.

The Fight to Come

If First Amendment case law is going to be guided by Bruen and the Second Amendment’s dogged reliance on history, hold on to your butts. Our history of punishing speech is inescapable: we have a distinguished history of criminalizing speech coming from the mouths of people society deems unwelcome. As a result, if this history-first approach to free speech as championed by Kacsmaryk is widely adopted, much of our current First Amendment law will be undone.

The moral force of the American commitment to free expression comes from the arc of our history, which bends toward a radical, liberalizing tendency to allow room even for speech we hate.

But, the moral force of the American commitment to free expression — greater than any democracy in the history of the world — comes not from any particular moment in 1791 or 1868 or anywhere else in our history. It comes from the arc of that history, which bends toward a radical, liberalizing tendency to allow room even for speech we hate.

Opinions like Kacsmaryk’s choose snapshots in time at the expense of this history. They do so not because case law requires it (it doesn’t), they do so to rollback freedom for thought they hate. And, usually, that will mean that LGBT+, religious and political minorities, and people of color will have fewer expressive rights than the average Joe. This is the point after all.

Other litigants are already trying to Bruenize the First Amendment too. Kacsmaryk’s approach is dangerous, but it is not novel. For example, the website owner in 303 Creative v. Elenis argued relying on Bruen that Colorado’s anti-discrimination law was inconsistent with the historical record. Counsel for 303 Creative cited Bruen and argued for a “bright-line rule” by reference only to the historical record.

Nor is 303 Creative or Kacsmaryk alone. In Netchoice, L.L.C. v. Paxton, a challenge to Texas’ social media non-discrimination law, the Fifth Circuit — which will no doubt review Kacsmaryk’s opinion, chastised the plaintiff for failing to argue by reference to “the original public meaning of the Constitution’s text.”

Other judges have agreed. Eleventh Circuit Judge Kevin Newsom has called the text and history approach to the First Amendment “terrific,” although he has expressed reservation as to whether the Court’s free speech jurisprudence has really gone that far.

One district judge questioned of Bruen’s historical approach to the Second Amendment, “why the same approach wouldn’t apply to the First Amendment.” Another has said the baseline of the First Amendment is “‘the freedom of speech’ as it was understood at the Founding.”

Each successive opinion that moves us closer to the Bruenization of freedom of speech should sound more and more like a five-alarm fire. If the Court, litigants, and academics do not counter it, those with the least power in our system will be further diminished by conservative judges and litigants.

In the end, these cases are not about speech at all. They are about subjugating individuals who have historically been subjugated. They are meant not just to prevent these disfavored speakers from expressing themselves, but to prevent them from associating, organizing, and, most importantly, participating in our national democratic experiment. They are, ironically, nothing more than bigotry dressed in the garb of a judicial decision.