Defending free speech in Iowa should be easier

It shouldn’t have to be this difficult.

If you have 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.

You know the old axiom, “I don’t agree with what you’re saying, but I will die to defend your right to say it.”

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 seem to serve as a prime examples of the need to protect speech the powers that be dislike.

The bill directs school districts to remove books from library shelves depicting sex acts. The Department of Education has given schools precious little guidance on how they choose what stays and goes. Some districts are playing it safe by removing a long list of 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-6 connected to the existence of LGBTQ people. Even a math story problem featuring a gay married couple is likely verboten. And conservatives want to make sure LGBTQ kids are no longer supported at school. Free speech is for righteous bullies.

I don’t agree with what you’re saying, but I’ll bury you in laws, spew politicized vitriol and claim you’re a mythical threat until you shut up and go away.

Clearly, Republicans are restricting speech and expression. The law’s broadness and vagueness are meant to create a polar-vortex-level chilling effect among educators who fear punishment for teaching the wrong lesson or book.

So, speech disliked by powerful Iowa politicians is being erased from schools. Proving the law is unconstitutional should be a legal slam dunk. But that’s not the case. Opponents of the law, 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. The laws were intended to give conservatives more freedom to have their views heard online. You know, Haitian cat-eating rumors, etc.

A 5th Circuit upheld the Texas law and the 11th Circuit stopped Florida’s law. Kagan argued both courts used the wrong analysis, giving short shrift to the broader unconstitutional effects.

In the court’s ruling, Justice Elena Kagan lays out a path to determine the constitutionality of laws designed to favor some speech while limiting other speech. It’s 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.

“Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose,” Kagan wrote

Iowa Federal Judge Stephen Locher, who previously granted an injunction blocking the Iowa 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. We don’t know who will sit on the panel evaluating this case.

But the appeals court did reject the state’s argument that removing books is “government speech.” It also directed plaintiffs to consider using Moody v. Netchoice.

The Eighth Circuit is one of the most conservative appeals courts. According to the legal news site Balls and Strikes, the court is made up by four Trump appointees and six judges appointed by George W. Bush and H.W. Bush. One judge is an Obama pick. We don’t know who will sit on the panel evaluating this case.

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.

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