But the Cold War is over. The Red Menace is no longer public enemy number one unless the subject is email hacking, and the level of conservative support for silencing radical speech simply doesn’t exist to the same extent it once did. The last real gasp of old-school conservative censorship and a sign of the times to come was the 1989 case of Texas v. Johnson, in which young guns Antonin Scalia and Anthony Kennedy defected from Chief Justice William Rehnquist (who throughout his career supported free speech claims a shockingly low 25% of the time) and offered constitutional protection to flag desecration. Classical liberal defenses of free speech are now all but gospel among today’s conservative intelligentsia.
Now the shoe is on the other foot. In many parts of the country, it’s now traditionally conservative beliefs that are afforded pariah status. To my knowledge, there are no laws in conservative states requiring businesses to produce anti-gay marriage speech, requiring abortion clinics to refer patients to pro-life centers, or requiring pro-choice protesters to remain thirty feet away from a pro-life organization. There were liberal equivalents to all three in blue states that were struck down by the Roberts Court. Gone are the days when the state tried to punish pro-gay-rights speech; welcome to the age where the state tries to punish calling trans people the wrong name.