Excerpted From: Bryan K. Fair, Crying Wolf: Neo-Patriots, Critical Race Theory, and the Constitutional Protection of “Dangerous” Ideas, 27 U.C. Davis Social Justice Law Review 1 (Winter, 2023) (171 Footnotes) (Full Document)


BryanKFairI am an American patriot. I am also a constitutional law professor who, over the past thirty-five years, has read and written extensively and taught broadly about racial caste in the United States; and I embrace the core tenets of Critical Race Theory (“CRT”).

CRT has given patriots like me a tool to lay bare and a lexicon to describe what we observe and experience every day regarding the many traumatic intersections of racism and law in the United States. Critical race theorists do not just critique the consequences of our discriminatory history. We also propose strategies to reform and heal our nation. It never occurred to me that our nation would undertake a second Red Scare, like the one from the 1920s through the 1950s, seeking to prosecute and punish Americans for expressing their ideas or for associating with others with similar viewpoints.

I oppose the sweeping efforts by neo-patriots who seek to use their wealth, political power, or racial privilege to vilify and criminally harass critical race theorists, or to suppress our ideas. Neo-patriots do not advance equality, liberty, democracy, or the common good. They are decidedly unpatriotic. They demand loyalty to an idealized, “exceptional” nation on a hill where everyone has gotten a square deal, ignoring four-plus centuries of evidence to the contrary. While decrying all limitations on their own ideas and rights, neo-patriots espouse a double standard declaring that other Americans' ideas, viewpoints, and rights should be banned or restricted. This is the height of constitutional hypocrisy. Neo-patriots do not have the constitutional power to ban any theory of legal reasoning or legal analysis on the basis of viewpoint, including CRT.

In recent months, a considerable body of commentary has analyzed recently-enacted or proposed bans or limits on CRT though the legal theory emerged in academic writings over fifty years ago. According to the Brookings Institute, for example, Fox News mentioned CRT over 1,300 times over a four-month period in 2022. In 2021 and 2022, a number of state legislatures enacted or proposed bans or limits on discussing CRT, The 1619 Project, or certain ‘divisive concepts' having to do with race, gender, or gender identity in public K-12 schools, colleges and universities, and workplaces. Proposed federal bills would withhold funds from institutions that teach CRT, divisive concepts, or The 1619 Project, or that sponsor diversity, equity, or inclusion training programs in government workplaces. With a few exceptions, most of the legislation does not mention CRT in its text, but CRT is often the catchall term used to attack diversity, equity, and inclusion training or discussion of divisive subjects or concepts.

Local school board meetings have been another recent battleground in which parents have insisted that school officials ban teachers from introducing CRT, certain curricula, specific books, or other divisive concepts in public school classrooms. Responding to these parent's demands, officials threaten budget reductions, fines, or terminations for those found in violation of bans.

What is lacking in most discussions of these bans is an examination of relevant First Amendment doctrine protecting the advocacy of ideas, engagement with the core tenets of CRT as a mode of legal analysis and legal reasoning, or reflection on specific CRT scholarship. This essay seeks to fill that void by examining the significant constitutional principles that come into play with the recently-enacted or proposed bans. Lower courts are just beginning to review such bans, but Supreme Court precedent supplies ample grounds for challenging them.

As the reader will see, I posit that bans on CRT, The 1619 Project, and discussion of “divisive concepts” should be struck down on First and Fourteenth Amendment grounds. In Part I, I review core First Amendment principles protecting speech from government overreach. In Part II, I set forth the principal tenets of CRT, explaining its emergence, what it is, and what it is not. In Part III, I apply the guiding free speech doctrine to anti-CRT legislation as a reviewing court might: first applying overbreadth and void for vagueness doctrines as facial challenges, then considering categories of speech considered subject to government restriction, and ultimately explaining why regulating ideas--including CRT--is fundamentally at odds with these principles. Finally, the conclusion explains why individuals and groups should challenge anti-CRT policies and why I expect courts to declare such bans unconstitutional.

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Critical race theorists have the same rights as all Americans to share our ideas and writings. The government has no power to ban ideas because it disagrees with the speaker's viewpoints. The First Amendment precludes content-based, viewpoint discrimination. Where the government singles out one academic legal theory for banishment, it violates a cardinal principle of First Amendment law. This rule protects the conservative and the liberal writer/speaker alike. Each ban should be challenged on constitutional grounds.

The Court has ruled that the proper remedy for noxious doctrine or speech is not censorship, but rather more speech. “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” This has been the clear rule in the United States for the past fifty plus years. Critical race theory falls into no proscribable category of speech. It is presumptively protected. Likewise, The 1619 Project is simply a book of essays and poems by various writers reflecting on the many faces of race and racism in American life. Neo-patriots cannot use the law to ban speech they dislike. Their remedy is not censorship, but rather more speech.

All restrictions on fully protected, private speech are subject to strict scrutiny. If the Court follows its precedent, bans on CRT, The 1619 Project, and discussion of divisive concepts will lead short lives.

Bryan K. Fair, J.D. University of California, Los Angeles, and the Thomas E. Skinner Professor of Law at The University of Alabama School of Law.