Pearls Before Swine: Testifying in Today’s Congress

“Give not that which is holy unto the dogs, neither cast ye your pearls before swine, lest they trample them under their feet, and turn again and rend you.” – Matthew 7:6 KJV

“The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” – Animal Farm

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Photo by Joakim Honkasalo on Unsplash

When I saw that Professor Mary Anne Franks was scheduled to testify on Capitol Hill in a hearing with the Orwellian title The Censorship Industrial Complex, my immediate and cynical thought was why bother? I know and endorse a lot of Franks’s work, and I know her on a collegial level through exchanges on topics of mutual interest and some minor work I have done for Cyber Civil Rights Initiative.

I knew the hearing itself—the second act in a political farce that began last June in the House Committee on Small Business—had no basis for legitimate investigation. I knew what Franks would say in her testimony, and I knew the reaction would be ad hominem, misogynistic attacks by those who would neither read, nor indeed understand, her recent book entitled Fearless Speech: Breaking Free from the First Amendment. But of course, the author of that book must speak, however futilely, into the barks and squeals that define whatever the fuck the Republican Party is now.

Fearless Speech is a provocative read for anyone who’s ever thought seriously about America’s favorite right. Franks weaves together historical and contemporary anecdotes to support her thesis that both cultural and judicial applications of speech tend to favor the powerful over the vulnerable—even critiquing doctrines famously argued by the American Civil Liberties Union (ACLU). This post is not a fulsome review of the book, but it is worth noting that good legal scholarship provokes thought—and invariably outrage—when it aims to examine whether constitutional principles, as applied, reveal that the law “bends toward justice.”

With that context, the premise of the Senate Judiciary Committee’s investigation into the “Censorship Industrial Complex” is alleged anti-Conservative bias, which is kind of a whiny-ass complaint for the party in power. I join the chorus of traditional Republicans who decline to call Trump’s party “conservative,” which begs the obvious question as to whether what has allegedly been censored are “viewpoints” or just crazy bullshit. Regardless, crazy bullshit won the White House and Congress for now, so it seems to have endured whatever censorship machine was allegedly built to silence it.

More acutely, Franks testified on the matter of the committee’s hypocrisy—that it claims to investigate unconstitutional government censorship by the former administration while ignoring the present administration’s paradigmatic attacks on the First Amendment. After correctly outlining what the First Amendment does and does not protect—statements of law that are neither controversial, nor “liberal,” nor unfamiliar to the committee—Franks states:

For Republicans to call yet another Congressional hearing to investigate the so-called ‘censorship industrial complex’ of Biden administration officials, nonprofit organizations, and Big Tech companies allegedly collaborating to censor conservative speech—a conspiracy theory so ludicrous that even the current Supreme Court, stacked with a supermajority of far-right conservative judges, dismissed it out of hand last year in Murthy v. Missouri—while ignoring the current wholesale assault on the First Amendment by the Trump administration is a betrayal of the American people.

Especially where emotions may be very high—as indeed they are regarding figures like Mahmoud Khalil—Americans have a duty to demand constitutional integrity, which includes prohibiting government detention solely on the basis of a citizen’s or lawful resident’s speech. Other speech conflicts fostered exclusively by the Party of Trump include book bans; ham-fisted attempts to scrub “DEI language” from public life; ideological assaults on cultural institutions like the Kennedy Center and Smithsonian; attacks on law firms and law schools; and extraordinary pressure on colleges and universities to demand viewpoint conformity (i.e., nationalism).

And this is where the whataboutism game gets played. As Franks states in response to the allegations against the Biden administration, “The government has the right to prefer certain viewpoints, and it is allowed to communicate those preferences through persuasion, encouragement, and funding.” To this, the half-sober Trumpian might respond by saying that the current administration “prefers” different viewpoints than the last, so what’s the issue?

The first issue is that the SJC inaptly, and performatively, accuses the last administration of having unconstitutionally funded the viewpoints it preferred. More perilously, though, the Party of Trump is not funding initiatives to “persuade” or “encourage” (let alone to do so on merit); it is attacking viewpoints it hates through intimidation, threats, defunding, and inciting mobs to engage in assaults targeting people like Dr. Franks, journalists, and even federal judges.

In contrast to these egregious and true abridgements of the First Amendment, one example of the “evidence” presented about the Biden administration’s “bias” includes material like vaccine information that tried to cut through the fog of dangerously crazy bullshit amplified by Trump 1.0. As Franks’s testimony states:

The Stanford Internet Observatory, a cross-disciplinary program that provided in-depth analyses of social media’s role in child exploitation and the spread of false information about elections and vaccines, ended its Election Integrity Partnership rapid-response election observation work in the summer of 2024 after it was sued repeatedly by conservative groups, subjected to multiple subpoenas from Congressional Republicans, and its members (including students) were harassed and threatened.

In case younger Americans don’t know, there was a time when basic information about medicine, elections, weather, product safety, etc. was generally apolitical, and the government had a duty to try to inform the public regardless of who was in the White House. The Party of Trump has broken that paradigm, and in lieu of information, it requires a chorus of approving grunts from the pigs in the Animal Farm.

Dutifully answering that hog call, Senator John Kennedy, rather than engage Dr. Franks on the First Amendment rationale for the hearing, used his bully pulpit to try to discredit her as a witness. Citing her articles on other topics (e.g., the Bruen case) Kennedy characterized Franks as a blind hater of the Constitution, of White men, of conservatives, etc. Then, of course, social media did its thing, and all the little piggies converged, just as St. Matthew prophesied, to rend Franks for daring to speak.

If Sen. Kennedy had an ounce of guts or a modicum integrity, he would argue either that Franks misstates the law or, perhaps, that she correctly states the law, but misstates the facts alleged about the “censorship industrial complex.” Instead, the senator and the cyber-mob he incited could not have more ably proven Franks’s critique of First Amendment history if they had read her book and tried intentionally to do so.

Like many examples in the book, this powerful office holder, while whining that he’s being “censored,” whips up a hate-storm of violent threats designed to silence a citizen whose only power is her voice. Also, the optics are hard to ignore. If Kennedy’s five minutes were a movie scene, the Southern White male throwing his weight around while acting offended that anyone would suggest that white male privilege exists, would be panned by critics as too on the nose. The only things missing were a fan and a Mint Julep.

Admittedly, the reason I asked why bother casting pearls before swine is that I join those Americans who have moved on from the belief that debate on merit, fact, principle, or constitutional literacy is relevant at this time. I hope those discussions will matter again among both liberal and conservative leaders of the Republic, but the Party of Trump has no credibility and, therefore, deserves no consideration. As Sen. Kennedy makes very clear, this is not a debate, it’s a street brawl; and if what we call “the law” does not bend toward justice, literal street brawls are inevitable.