When the Supreme Court ended the constitutional right to abortion with its decision in Dobbs v. Jackson Women’s Health Organization a little over year ago, progressives asked what other rights might be next on the chopping block. Rights connected to privacy, including contraception and same-sex marriage, looked to be the most at risk. That was certainly what Justice Clarence Thomas suggested in his concurring opinion.
Another possible candidate — one that has been under our noses for quite some time — has recently emerged, courtesy of Texas Judge Matthew Kacsmaryk: It may be the freedom of speech that faces the most immediate threat.
Kacsmaryk has played a unique role in previewing conservative strategies for attacks on our liberties. Last spring, he handed down a ruling that held that the Food and Drug Administration had never had the authority to approve mifepristone, a drug used in more than half of all abortions. Kacsmaryk’s ruling offered a window into a broader effort to engineer a backdoor abortion ban: One avenue would be to cut off access to a drug commonly used in abortions; another would be to reinvent a 19th-century sexual purity law, the Comstock Act, as a de facto ban on all abortions. That case, Alliance for Hippocratic Medicine v. FDA, is still pending before the Supreme Court, which is likely to weigh in next year.
His opinion also sketched plans for a much bigger transformation of free speech jurisprudence.
Kacsmaryk’s ruling in that case relies on the Dobbs decision to chip away at the freedom to talk about sex. The case at issue involves an LGBTQ+ student group at West Texas A&M University that wanted to host a drag show to raise money for suicide prevention for queer youth. The university president blocked the fundraiser, and the students went to court, insisting that the university had violated their right to freedom of speech. The legal question in the case turns on qualified immunity, which in certain cases protects government officials who violate civil or constitutional rights unless a right is “clearly established.”
It seemed like the students should have had an easy win on this point. District judges across the country, including in Texas and Tennessee, have held that state drag bans violate the First Amendment.
Kacsmaryk had a very different perspective on freedom of speech. He insisted that drag involved conduct, rather than speech, and that even if drag was expressive, the state had a compelling interest in protecting children from it. He maintained, too, that drag was simply lewd, rather than expressive of any political message — a claim that ignores drag’s long history as a form of protest and self-expression.
But his opinion also sketched plans for a much bigger transformation of free speech jurisprudence. What courts should do, Kacsmaryk wrote, was to copy Dobbs’ historical model in other contexts. In that case, the Supreme Court suggested that the Constitution protected only those rights that do not appear in the document’s text when they are deeply rooted in the nation’s history and tradition. Kacsmaryk’s reading of history and tradition suggested that the government had always had the power to “censure licentiousness.” The core of the First Amendment, in his view, concerned efforts to block the publication of political pamphlets. If anything, when it came to speech about sex, Kacsmaryk thought the nation had a tradition of criminalization. Without a trace of irony, he pointed to the Comstock Act to argue that the government had long punished people for what he characterized as lewd or obscene speech.
It may be tempting to think of Kacsmaryk as a fringe figure. After all, his opinion in Alliance for Hippocratic Medicine went too far even for the ultra-conservative 5th Circuit. The Supreme Court, which is hardly a bastion of moderation, left the status quo in place as the mifepristone litigation continues. But Kacsmaryk’s arguments about the Comstock Act are now mainstream among many conservatives, who have used it to intimidate Walgreens into not selling mifepristone in certain states, to challenge state laws that protect abortion access, and more.
There’s reason to think conservatives will be interested in Kacsmaryk’s vision for the freedom of speech, too. In recent years, conservatives have campaigned for book bans and lobbied for the prosecution of librarians and instructors. They have championed laws, like Florida’s Parental Rights in Education Act (which critics have dubbed the "Don’t Say Gay" law), that ban certain forms of sex education in public schools. They have prohibited drag by law. And time and time again, they have run headfirst into the First Amendment. Even conservative judges have occasionally recognized that precedent supports protections for speech about sex — and that speech about sex and political speech are often one and the same.
We have just begun to see the ripple effects of Dobbs on American life and law.
Kacsmaryk likely recognizes this as well, but he also knows that the current Supreme Court majority has not shown much respect for precedent. If the justices were willing to reinvent abortion jurisprudence, why not free speech law? And if “history and tradition” made it easy to erase the rights of women and abortion seekers, Kacsmaryk appears to be counting on a similar argument about speech to open the door to conservatives’ new attempts at censorship.
The message of Kacsmaryk’s ruling is about much more than drag. It’s a sign of how much conservatives see speech, sex and reproduction as interconnected issues. And it’s a reminder that we have just begun to see the ripple effects of Dobbs on American life and law. Kacsmaryk looked to Dobbs for a new conservative blueprint to constrain the freedom of speech when it comes to sex. And when he thinks of our national traditions, he sees not liberty but censorship.