Everyone’s a free-speech hypocrite | The Foundation for Individual Rights and Expression

This essay was originally published in The New York Times on Sept. 23, 2025.

If you’re a free-speech lawyer, you face a choice: Either expect to be disappointed by people of all political stripes — or go crazy. I choose low expectations.

Again and again, political actors preach the importance of free speech, only to reach for the censor’s muzzle when it helps their side. If, like me, you defend free speech as a principle rather than invoke it opportunistically, you get distressingly accustomed to seeing the same people take opposite positions on an issue, sometimes within the space of just a few months.

On the first day of his second presidential term, for example, Donald Trump signed an executive order titled “Restoring Freedom of Speech and Ending Federal Censorship,” castigating the Biden administration for pressuring online platforms to censor Americans’ speech. Last Thursday Mr. Trump mused that when broadcasters portray him negatively, “maybe their license should be taken away.”

Or consider hate speech. The concept was developed in the 1980s by leftist legal scholars like Richard Delgado and Mari Matsuda, and it shaped the campus speech codes and so-called political correctness of the 1990s. Intellectuals on the right were quick to contest the idea of hate speech — U.S. law does not recognize a general hate-speech exception to the First Amendment, and never has. Charlie Kirk rejected the idea of using hate speech rationales to crack down on free speech. Yet after Mr. Kirk’s assassination, Republicans rushed to promise crackdowns on hateful expression, deploying the same concept.

Critics of the idea of hate speech, including my organization, have long warned that the concept is so vague and broad that it provides a handy weapon to censor almost any opinion.

Last week, Attorney General Pam Bondi vowed that “we will absolutely target you, go after you, if you are targeting anyone with hate speech.” When Mr. Trump was asked about this statement by Jonathan Karl of ABC, he said that Ms. Bondi would “probably go after people like you,” and that Mr. Karl’s network — which last year settled a defamation lawsuit brought by Mr. Trump — paid “$16 million for a form of hate speech.”

Critics of the idea of hate speech, including my organization, have long warned that the concept is so vague and broad that it provides a handy weapon to censor almost any opinion. Unfortunately we have been vindicated on this point.

Consider, too, the fight against so-called misinformation and disinformation. The Biden administration created (and then quickly shuttered, following criticism) an advisory board at the Department of Homeland Security on the threat of disinformation. The Biden administration also pressured social media platforms to censor Americans who posted what the administration considered obvious falsehoods, including the suggestion — now considered plausible by a large assortment of mainstream institutions and experts — that the coronavirus originated from a laboratory in Wuhan, China.

Today, the right is making the same mistakes. The late-night talk show host Jimmy Kimmel included a line in a recent monologue suggesting that Mr. Kirk’s killer was a Trump sympathizer — which prosecutors’ documents seem to contradict. In the wake of conservative outrage, ABC suspended Mr. Kimmel’s show. That was an overreaction: If partisan wishful thinking were a regulatory infraction, few comedians or commentators on the left or the right would still have a job. (ABC said on Monday that it would resume Mr. Kimmel’s show on Tuesday.)

It’s possible that Disney, ABC’s parent company, would have punished Mr. Kimmel on its own. But the Trump administration took the initiative. Before ABC suspended Mr. Kimmel’s show, the chairman of the Federal Communications Commission, Brendan Carr, said during a podcast interview: “We can do this the easy way or the hard way. These companies can find ways to change conduct, to take action, frankly on Kimmel, or there’s going to be additional work for the F.C.C. ahead.”

Using your opponents’ nastiest tools doesn’t persuade them to disarm; it inspires retaliation.

And then there’s cancel culture. The right has long balked at the use of social pressure to punish conservative thinkers by, for instance, getting them fired from their jobs. The rise in cancellations that began around 2014 was initially celebrated by the left, which it defended as “consequence culture.” Now comes the inevitable role reversal. A few days ago, Vice President JD Vance urged those who saw people celebrating Mr. Kirk’s assassination to “call them out,” including by calling “their employer.”

I don’t like having to make a case for human rights such as freedom of speech by appealing to self-interest; these are supposed to be rights whose importance transcends one’s personal needs. But for political partisans, it’s often the only argument that cuts through. So here’s my practical warning: The weapon that you reach for today will be used against you tomorrow.

Using your opponents’ nastiest tools doesn’t persuade them to disarm; it inspires retaliation. Tit for tat, forever and ever.

“Free speech for me, but not for thee” is an all-too-familiar impulse in politics. But the point of the principle of free speech is that how we respond to ideas we don’t like is ultimately not about our opponents’ rights — it’s about ours.