San Antonio Express-News: S.A. and Chick-fil-A shows why free speech matters

April 22, 2019 | By DANIEL ORTNER

This article was originally published by San Antonio Express-News on April 21, 2019.

The foundations of freedom of speech are under relentless assault. A case in point: the San Antonio City Council recently voted to exclude Chick-fil-A from the city’s airport because the restaurant chain’s Christian owners have donated to organizations that champion the belief that marriage is between a man and a woman. And last week the council narrowly rejected a proposal to reconsider its decision.

Such censorship is blatantly unconstitutional. But this incident is symptomatic of deeper problems. Many people believe they have the absolute truth with regard to issues of morality, sexuality, religion or politics, and that those who disagree are evil and must be censored or excluded. Similarly, many see people as fragile and argue that offensive speech is violence.

Hence, the San Antonio City Council’s fear that the mere sight of a Chick-fil-A would make LGBTQ+ individuals feel unwelcome. This outlook corrodes our free speech foundations and should be rejected by all those who value the First Amendment.

Yet, the United States remains a bastion of free speech compared to other western nations. In England, a journalist is under investigation for the “crime” of “misgendering” a transgender child. And the Grand Chamber of the European Court of Human Rights refused to review a decision affirming the conviction of an Austrian politician for making inflammatory remarks about the Prophet Muhammad.

In the U.S., by comparison, President Trump signed an executive order calling out campuses that flagrantly violate the First Amendment. And the Supreme Court stands poised to deliver another victory for free speech by invalidating a law that allows the government to censor trademarks that are too “scandalous” for protection.

Why has the United States stood largely alone in protecting offensive and controversial ideas? And can this protection last as the calls for “trigger warnings” and censorship grow ever louder?

Our dedication to protecting controversial or even hateful ideas has sometimes faltered. Until after the Second World War, the United States jailed those who spoke out against wars or voiced unpalatable positions.

But in the post-war era, a bipartisan consensus in favor of open discourse emerged. This consensus rests on three foundational premises.

First, government bureaucrats are not qualified to decide which ideas deserve protection or which deserve censorship and scorn. Government abuses during the McCarthy and Civil Rights era illustrated how such power could be used to suppress unpopular viewpoints. We recognized that such power did not belong in the government’s hands. The Supreme Court expressed this idea with great power in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Second, while we can hold fervent convictions on all manner of issues, we should not be so certain of our convictions that we would silence others. Instead, we make room even for the expression of ideas we hate. Justice Oliver Wendell Holmes expressed this with timeless eloquence: “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power. … But when men have realized that time has upset many fighting faiths, they may come to believe … that the ultimate good desired is better reached by free trade in ideas.”

Finally, our commitment for free speech rests on the belief that citizens in a free society are resilient individuals capable of hearing and rejecting offensive ideas. As Justice Louis Brandeis explained, “Those who won our independence by revolution were not cowards. … They did not exalt order at the cost of liberty.”

Our belief in equality and fairness for all will remain strong even if we allow Nazis to march on Skokie or Charlottesville — or if we stop to enjoy a chicken sandwich at the airport. San Antonio leaders should reaffirm their commitment to free speech by stepping back from this ruinous attempt at punishing views they don’t like.

Daniel Ortner is an attorney with Pacific Legal Foundation.