Moral Panic and the First Amendment

Abstract

Debates over free speech in the United States frequently see advocates of strong, broad protections at odds with those who argue that unfettered free speech tends to harm society’s most vulnerable. Free speech advocates frequently invoke the marketplace of ideas and argue that the antidote to false or harmful speech is more speech. In response, critics contend that speech itself causes harm and chills counter-speech—effectively excluding marginalized groups, including women and LGBTQ people, from discourse altogether. These critics advocate limitations on robust free speech doctrine targeting speech that harms marginalized communities.

This Article identifies a significant wrinkle in this narrative: the problem of moral panics. The term “moral panic” originates in sociological literature and, simply stated, connotes disproportionate media and social condemnation of an identifiable deviant group or type of individual. I argue that moral panic influences modern lawmaking trends and identify two such trends in particular: panic over drag performers who purportedly groom and otherwise harm children, and panic over teachers and administrators who incorporate critical race theory into classrooms. Applying multiple models of moral panics, I argue that there is a strong case that laws restricting drag performance and teaching of critical race theory or other “divisive concepts” are frequently based in moral panic.

Moral panic adds nuance to debates over the scope of First Amendment protections. To some extent, laws originating in moral panics vindicate critics of unfettered free speech, as the freedom to spread falsehoods (particularly those that are deemed of political salience) contributes to panic and fuels demand for panic-based restrictions. But when a moral panic’s influence goes so far as to prompt the enactment of restrictive laws, critics of strong speech protections may find a strong resource in the very doctrine they criticize. Laws restricting drag performances and critical race theory teaching are vulnerable to a variety of First Amendment challenges. Those who seek to reform permissive First Amendment doctrine therefore must account panic-generated laws and how strong speech protections may support challenges to these laws.

Keywords: First Amendment, moral panic, constitutional law, drag, drag laws, critical race theory, critical race theory laws, marketplace of ideas

JEL Classification: K14, K19