Free Speech Is Not Just for Conservatives

An administrator at West Texas A&M University canceled a student drag show—a clear violation of the First Amendment.

Collage showing pictures of college campus and students holding protest signs
Illustration by The Atlantic. Source: Michael Cuviello / AP.

Can an administrator at a public university cancel a performance because he believes that it is degrading to women? That’s the position that Walter Wendler, the president of West Texas A&M University, took in a recent letter explaining why he was prohibiting a student group from going forward with an on-campus event raising money for charity.

“As a university president, I would not support ‘blackface’ performances on our campus, even if told the performance is a form of free speech or intended as humor. It is wrong,” he explained. “I do not support any show, performance or artistic expression which denigrates others—in this case, women—for any reason.”

The controversy could be understood as just the latest to pit free-speech rights against censors who argue that equity and inclusion can be more important. But there’s a wrinkle: The fundraising event in question was a drag performance planned by an LGBTQ campus group to benefit a nonprofit that works on suicide prevention.

That doesn’t change the First Amendment analysis––but an attempt to prohibit drag maps differently onto the culture wars. Wendler is trying to stop an event organized on behalf of a marginalized group using an argument that a faction of the left is willing to grant in principle: that equality requires deplatforming bigoted performances.

This episode serves as a reminder to progressives that expansive free-speech protections don’t just protect the rights of conservatives to say things on campus that you dislike; they protect the rights of students from historically marginalized and currently disfavored groups to express themselves in ways that conservatives hate and that many progressives regard as empowering.

Is Wendler arguing earnestly when he likens drag to blackface, or is he opportunistically exploiting the fact that, if one can justify censorship in the name of social justice, critics of drag can invoke that rationale to stop it? The backdrop of anti-drag sentiment on the right, as legislators try to restrict where and when drag shows can be held with sometimes unconstitutional laws, is one reason to doubt his sincerity. But his stated position is that the performance he canceled was “derisive, divisive and demoralizing misogyny” because, “as a performance exaggerating aspects of womanhood (sexuality, femininity, gender), drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.” And his claim that drag is misogynistic is neither novel nor new––it predates today’s culture wars, going back to a time when drag was more associated with gay rather than trans performers.

Kelly Kleiman made that argument from a feminist perspective in the June 2000 edition of the Chicago-Kent Law Review: “To most educated Americans, performance in blackface is an artifact of long ago, an embarrassing reminder of a distant past in which overt racism was tolerated, as obsolete a form of cultural expression as lawn jockeys or the Uncle Tom in the turn-of-the-century Cream of Wheat ads. In fact, though, the consensus that blackface performance is intolerably racist is of relatively recent vintage. Before that, analyses of blackface minstrelsy—-even those that conceded its racism—concentrated on the meaning of the performance to the performers and the audience, ignoring or discounting its meaning to, and impact on, the people being portrayed. That is the current state of scholarship about performance in drag. Why hasn’t our understanding that blackface is insulting extended itself to drag?”

A petition aimed at saving the drag event rejects Wendler’s comparison to blackface. “Not only is this a gross and abhorrent comparison of two completely different topics,” it states, “but it is also an extremely distorted and incorrect definition of drag as a culture and form of performance art.”

For what it’s worth, I tend to agree with that assessment. But it is a subjective judgment. In a world without liberal free-speech protections, the matter would end in an impasse about the nature of drag, with Wendler forbidding it on campus just as, in his telling, he would forbid blackface. Whereas in a liberal paradigm, which protects expression even when authority figures assert that it undermines equality for a historically marginalized group, we needn’t probe the nature of drag, litigate unresolvable debates about whether it is analogous to blackface, or rank women and trans people against each other in a zero-sum hierarchy of marginalization.

Instead, when free-speech protections are robust, no authority gets to decide how others can speak. The LGBTQ student organization can reverse its university president’s decision by invoking the First Amendment precisely because generations of liberals successfully championed expansive free-speech protections.

Those expansive protections empower everyone to vindicate their civil rights.

The Texas legislature and Republican Governor Greg Abbott affirmed the free-speech rights of students on campus in a 2019 law. It states, in part, that “an institution of higher education may not take action against a student organization or deny the organization any benefit generally available to other student organizations … on the basis of a political, religious, philosophical, ideological, or academic viewpoint expressed by the organization or of any expressive activities of the organization.” (As Spectrum WT, the LGBTQ student organization that had planned the show, invokes the law in defense of the event, amid a clear crackdown on trans rights, will any critics change their minds about that law?)

The organization has filed a lawsuit with the help of the Foundation for Individual Rights and Expression, known as FIRE. “President Wendler has made it clear to us that he knows what his legal obligations are, but he chose to ignore them, and we are thankful to FIRE for taking up our case to protect our First Amendment rights,” said Spectrum WT President Bear Bright. “Hopefully, this lawsuit will not just help us the LGBTQ+ students here at WTAMU protect our rights, but also help protect students’ rights across the U.S.” I emailed President Wendler for a response to the lawsuit. He replied, “Sorry but I cannot.”

In his letter explaining the cancellation, he also implied that drag creates a hostile climate. “When humor becomes harassment, it has gone too far,” he wrote. The West Texas A&M campus is a workplace, he argued, and the Equal Employment Opportunity Commission “affirms that acts of prejudice in the workplace and our campus is a workplace, even when not criminal, are harmful and wholly inappropriate.” Asked to respond, the FIRE attorney JT Morris emailed, “The First Amendment forbids public officials to censor expression simply because they, or someone else, find it offensive. Imagine if university presidents could stifle protected speech just because they think it's ‘mocking’ or ‘demoralizing.’ They could censor political satire, social parody, and a host of artistic expression.”

Back in 1993, the most prominent critical race theorists of that era argued in the essay collection Words That Wound for new constraints on free speech, including the concept of libel against a group as an exception to the First Amendment. In a review of the book, Henry Louis Gates warned that by parting with the civil-rights-era belief that civil liberties and civil rights were mutually reinforcing, the critical race theorists were dividing liberals while risking a future where speech restrictions would be more easily used against marginalized or disfavored groups. A decade later, in the book You Can’t Say That, David Bernstein detailed how anti-discrimination laws can pose a threat to civil liberties, including freedom of speech and expression.

The concerns of both Gates and Bernstein are vindicated in the controversy at West Texas A&M, which doubles as a message to progressives: The logic of deplatforming doesn’t just threaten the far right. It threatens everyone’s rights. The speech of LGBTQ students is under attack by an administrator appealing to group libel and antidiscrimination––and will be defended because neither trumps free speech.

Of course, it shouldn’t take a lawsuit to exercise one’s civil rights.

That’s why, in my estimation, it is not enough for the students to successfully prove, in court, their right to host a drag show, because judges aren’t alone in having a responsibility to protect speech rights. State officials have responsibilities, too. If Wendler persists, the Board of Regents and the chancellor he answers to should fire him for knowingly violating the civil rights of students. His statement—“I will not appear to condone the diminishment of any group at the expense of impertinent gestures toward another group for any reason, even when the law of the land appears to require it”—is incompatible with both his legal and moral obligations to students.

Violations of this sort warrant consequences.