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And This Is Why You Can't Reason With Free Speech Absolutists

It's hard to get people to value something they don't personally need.

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Emancipated Sheep.

A couple of days ago, I wrote a story on Minnesota Voters Alliance v. Manksy, an upcoming Supreme Court case that pits free speech advocates against voting rights advocates. I cited Elizabeth Slattery, a legal fellow at the Heritage Foundation, who argued that because speech on a t-shirt is unlikely to change your vote, the government has no compelling interest to prohibit the speech.

I highlighted that argument because it is, to my mind, the completely wrong one. The problem is not that a shirt or a hat changes your vote, it’s that it intimidates you and discourages you from voting at all.

Many people, and many white people especially, have trouble with this argument because they simply don’t see how clothing can be intimidating — so intimidating that voters deserve protection from them. I get why it’s hard for them to understand; they haven’t had the experiences of minority voters.

Nobody every lined up to shout racial epithets at them as they tried to register to vote, as happened to my mother. No poll worker has given them a bum address on where the real polling station was, leading them on a wild goose chase that ended up near a dump, as happened to my father. Nobody ever told them that their ballot could only be cast “provisionally” because I presented only my college I.D., as happened to me until I made such a stink that one of those election monitors had to come in and tell the woman she was wrong and to not say or do that to anybody else.

For these folks, voter intimidation isn’t a real thing that happens, it’s a story they read in a history book once. They don’t feel it, they’re not afraid of it. And if you’re the Heritage Foundation, you can’t even be bothered to care. The guy who wants to wear an “Elie’s Mom Shouldn’t Vote Here” t-shirt will always be more real to them, and, to their shame, more sympathetic to them, than “Elie’s Mom.”

Whatever. To be black in America is to always know that your safety is never a priority.

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If you think that Manksy is a “free speech” case, then you’ve already decided the outcome. Dude was wearing a shirt, not a gun. Shirt = speech, speech = the most important thing, non-white voters = not terribly important. It’s an easy speech case.

IF you think that Manksy is a “voter intimidation” case, it’s also pretty easy. Safety while voting = terribly important. Shirts = not terribly important. The state can decided which shirts are illegally intimidating and which shirts aren’t.

Again, to side with the state in this case, you don’t have to personally think that the shirt in question was over the line, you have to think that it’s POSSIBLE for a shirt to be over the line. If you get there, it follows that the state has the right to exclude paraphernalia on the wrong side of wherever we want to draw the line.

I tried to explain some of this to a different Heritage guy on Twitter. I know that trying to get Heritage Foundation people to acknowledge the possibility of racial injustice that requires additional regulation to ameliorate is like trying to convince the wolf that the sheep is more valuable for its wool than its meat. I’m trying to get them to assign value to a thing that they have no need of, so of course they’re going to disagree.

But I try anyway, so people with real jobs can see the results without have to waste their time in the futile effort.

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The results of this tangle were incredibly predictable. Elizabeth Slattery wrote a follow-up post in the Daily Signal:

Mystal writes, “The Heritage Foundation forgets that people who are now on their side have a history of murdering minorities who try to vote where they are not supposed to.” This guilt-by-association charge is strange, to say the least.

Our nation, unfortunately, has an ugly history of race relations, and there certainly have been instances of horrific violence and intimidation surrounding polling places. Luckily, that behavior is a thing of the past, and a ruling for the Minnesota Voters Alliance won’t open up the floodgates of threats, coercion, and intimidation of voters.

Our ugly history of race “relations” around voter intimidation is “a thing of the past”! What “luck.”

I’ll tell my mom, she’ll be freaking thrilled.

MAGA Hats Aren’t the Problem at Polls. Government Banning Speech Is. [Daily Signal]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Earlier:

The Supreme Court Will Functionally Decide If You Can Wear Your #MAGA Hat To Vote

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