The free speech clause to the first amendment to the United States Constitution is a bit of a mystery. It holds that Congress shall make no law abridging the freedom of speech. That's it. No frills, no clarifications. Yet we know, if we are originalists about Constitutional meaning, that it can't actually mean free speech absolutism. We know this if for no other reason than that federal legislation against pornography was not considered unconstitutional until much later--at least not on First Amendment grounds. (Back when the 10th amendment was taken seriously, such legislation might have required some justification in that connection.) Even the court's upholding of the Sedition Act of 1918 is some evidence that, the farther back you go, the less likely it is that you will find free speech absolutism as the interpretation of the First Amendment. On the other hand, the fierce and very early controversy over the even more restrictive speech provisions of the Alien and Sedition Act in 1798 does provide evidence that the Founders did intend to protect political speech and criticism of government activities, just as one would naturally assume.
But by the early 21st century, extreme conclusions by SCOTUS about the First Amendment had become commonplace. In the Ashcroft decision (2002) SCOTUS even went so far as to conclude that child pornography could not be banned by content but only in virtue of its having actually been produced by the abuse of real minors. That this was anything like the intent (or for you textualists, the understanding) of the original First Amendment is ludicrous.
As things now stand, flag burning, strip dancing, and virtually all pornography are all treated as first-amendment-protected free speech. (Yes, I know about the "local values" supposed exception on obscenity. In practice, what it means is that the local strip joint and dirty book store threatened to sue my city for any attempt to get rid of it, and the most the city could do was to induce the business to move to a different neighborhood.)
The one silver lining to all of this extremism in the direction of protecting speech (and "speech") was that one would expect it also to protect the freedom to express truths and to refuse to express falsehoods, without government punishment. This was all the more the case because of SCOTUS rulings against government-compelled speech, such as the ruling as long ago as the 1940's that government schools could not compel Jehovah's Witnesses to salute the flag of the United States and the 1970's ruling that citizens of New Hampshire could not be required to have license plates displaying the political message "Live Free Or Die," the state motto.
The incorporation doctrine, dubious as it is on originalist grounds, also now plays its role in protecting the statement of truth. The states and state schools (including state universities) are all, by precedent, covered by SCOTUS rulings both against restriction of free speech and against compelling ideological or political speech.
Nor have these expansive First Amendment rulings always and only protected activities and opinions that leftists tend to like. In 1977 the Supreme Court ruled that the Nazis must be allowed to march in Skokie and display the swastika. And as recently as 2011, with only Justice Alito dissenting, the Supreme Court ruled in favor of Westboro Baptist Church and Fred Phelps, despite the fact that there was a quite reasonable case that Phelps & co. had committed a personal tort against Albert Snyder, which should not have been deemed constitutionally protected from an originalist perspective.
So right up into recent years there has been some hope that even the liberals on the court would continue to be relatively consistent with the history of sweeping First Amendment jurisprudence and apply it to ideas they disliked. Indeed, First Amendment jurisprudence is one area where categories like "liberal" and "conservative" tend to break down, as witness the difference of opinion between Alito and Scalia on the Westboro case, where Scalia joined his more liberal colleagues. Even the distinction between originalists and living constitutionalists does not always allow one to predict First Amendment rulings, as that same case shows and as can be seen by Scalia's rather surprisingly consistent rulings in favor of something nigh unto First Amendment absolutism, despite his originalism. (The Ashcroft child pornography ruling, from which he dissented, being one notable exception.)
Again, all of this could understandably give hope to conservatives now under siege from the forces of the homosexual and transgender lobby, who wish to use the force of government to coerce either the conservatives' silence (as to their true views) or their endorsement for preferred views.
But athwart this semi-sunny scene falls a shadow, no larger than a man's hand. In 2014 the Supreme Court refused to hear Elane Photography v. Willock, a case concerning Elaine Huguenin, who was punished by the state of New Mexico for refusing to do a photography shoot celebrating the commitment ceremony of two lesbians. All of the omens should have been good: By the incorporation doctrine, First Amendment jurisprudence applies to New Mexico. By the rulings against compelled speech, Huguenin should not be punishable by the state for refusing to use her talents to convey a message with which she disagreed. By the rulings giving a broad interpretation of the concept of "speech," so that it could apply to all manner of expressive actions, making a celebratory set of photographs should have counted as speech. Nonetheless, the Supreme Court simply left in place a New Mexico State Supreme Court ruling which held that, by entering the marketplace, photographers surrender as the "price of citizenship" their right not to be compelled to make such creations.
Legally, that is the ominous limbo in which we float today. And yet the left has not been idle. Since then we have seen a positive flurry of attacks on what would be, by previous precedents, First Amendment rights, including but not limited to...
--Civil rights commissions rulings and state court rulings against bakers and florists requiring them to participate in and make artistic creations for homosexual "weddings,"
--A similar requirement on calligraphy artists in Arizona,
--A bizarrely totalitarian accommodations law in New York City micromanaging pronoun use for "transgender" people in businesses,
--Similar attempted speech requirements on public college campuses,
--Public school rules requiring punishment for students who will not agree with their fellow students' "gender identification,"
--a blatantly unconstitutional California law requiring crisis pregnancy centers to tell women where they can obtain an abortion (similar laws in other venues have been struck down as unconstitutional),
--laws attempting to require churches (!) that hold allegedly "secular" events to monitor their speech so as not to offend possible homosexual or transgender people attending the event or making use of the service offered by the church (such as a daycare),
--a decision by the EEOC to investigate whether employers are required by law to prohibit employee speech in order to avoid a "hostile work environment" for protected groups.
The Supreme Court has not ruled on a single one of these cases. It's rather astonishing that, with all the baker-florist-candlestick-maker persecution going on, not a single case in the wedding business anti-Christian purge has made it to the Supreme Court. But in the case of Elane Photography, that's because they wouldn't hear the case. What will happen next is anyone's guess. Nor (cynic though I am) is it absolutely clear that all the Usual Suspects on the court would go the wrong way. Snyder v. Phelps included, in the majority, Sotomayer, Breyer, Kennedy, Ginsberg, and Kagan. But in that case, why wouldn't they hear Elane Photography?
The First Amendment hangs in the balance. By all the rules of stare decisis, these cases should be knock-down, and the above speech-compelling and speech-forbidding policies and laws should be struck down, but now they are up in the air. And I suppose if the justices in question are living constitutionalists, that isn't so surprising. "Do I contradict myself?" quoth the living constitutionalist. "Very well, then, I contradict myself. I am large. I contain multitudes."
Canadian professor Jordan Peterson refuses to use made-up pronouns such as "ze" for "trans people." He's even willing to call an obvious biological male "she" according to the "part" the person "appear[s] to be playing," but he draws the line at "alternative pronouns," and he isn't backing down. Professor Peterson has been warned by his (public) university that he could be in trouble under Ontario's "human rights code." I admire Peterson's bravery, but I have a sinking feeling he's going to be crushed by the leftist machine. Peterson should be so lucky as to live in the U.S. where at least he would have some precedents on his side, even if they are now under assault.
The moral I want to draw from this long, rambling disquisition is perhaps not the one my readers will expect, and it certainly isn't the only one I could draw. Nor is it a moral that everyone who reads this will agree with. But I think it's a worthy consideration nonetheless: When it comes to authoritarian control of ideological speech, be very careful what you wish for, conservatives. You might get it. Maybe those Founders were onto something, after all.