First published in Bay Windows, August 17, 2006
A quick test of your commitment to the First Amendment is to ask yourself whether you support the American Civil Liberties Union in its lawsuit defending the right of the anti-gay Phelps clan to conduct its hateful demonstrations outside the funerals of American soldiers killed in Iraq. Many will answer no, saying something like, "I’m all for freedom of speech, but it has limits."
The same sentiment was widely uttered earlier this year after a Danish newspaper printed cartoons of the prophet Muhammad. Many commentators seriously asserted that no one has a right to offend other people’s beliefs. Similar views are often expressed about protesters burning the American flag.
In the current session of the Washington D.C. city council, a bill to protect adolescents and children from the corrupting influence of violent or obscene video games was co-introduced by every council member but one. Its sponsors, including the openly gay chair of the committee with jurisdiction, were unmoved by the lack of evidence that viewing videos causes violent behavior, or by the fact that similar censorship laws elsewhere have consistently been overturned as unconstitutional. The lone dissenting council member, unsurprisingly, was also that body’s leading civil libertarian. Fortunately, the council chair, now running for mayor, has heeded the city’s attorney general on the bill’s dubious constitutionality and withdrawn her support.
Recently, a draft rulemaking was published for implementation of the D.C. Human Rights Act’s prohibition against discrimination based on "gender identity or expression." The local ACLU chapter and the Gay and Lesbian Activists Alliance (of which I am a member) raised First Amendment concerns about a provision declaring the use of certain words in the workplace as presumptive evidence of discrimination. ACLU cited the Supreme Court in Clark County School Dist. v. Breeden, which stated that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Rather than consider that perhaps the regulations should be tightened to withstand court scrutiny, the leader of the transgender activists expressed disappointment that anyone would raise First Amendment concerns, because "the First Amendment has often been used against us." Here was a member of a persecuted minority treating the keystone of American civil liberties as a hindrance.
In 2000, the ACLU was widely attacked for defending the free speech rights of the North American Man/Boy Love Association (NAMBLA). In response to the criticism, an ACLU statement noted that over the years it had represented such diverse clients as a fundamentalist Christian church, a Santerian church, Oliver North and the National Socialist Party, adding, "In spite of all that, the ACLU has never advocated Christianity, ritual animal sacrifice, trading arms for hostages or genocide. In representing NAMBLA today, our Massachusetts affiliate does not advocate sexual relationships between adults and children.
"What the ACLU does advocate is robust freedom of speech for everyone. The lawsuit involved here, were it to succeed, would strike at the heart of freedom of speech. The case is based on a shocking murder. But the lawsuit says the crime is the responsibility not of those who committed the murder, but of someone who posted vile material on the Internet. The principle is as simple as it is central to true freedom of speech: those who do wrong are responsible for what they do; those who speak about it are not."
I myself took part in the expulsion of NAMBLA and other pedophile groups from the International Lesbian and Gay Association in 1994, and toward that end I wrote a critique of NAMBLA that was printed in several gay papers. I used a copy of the NAMBLA Bulletin as the basis of my critique, which would have been impossible had it been censored by the government. Objectionable opinions are more effectively addressed by rebuttal than concealment.
As members of a minority group, LGBT people should be especially alert to censorship’s two-edged sword. In her excellent book, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights, ACLU President Nadine Strossen points out that the anti-pornography campaign led by feminists Catharine MacKinnon and Andrea Dworkin ended up being used against feminists themselves. After Canada, heeding the MacDworkinites, banned pornography that could be considered dehumanizing or degrading to women, Canadian officials began seizing shipments of books to gay and women’s bookstores, including works by Dworkin herself.
Freedom of speech means nothing if not the right to offend, short of defamation and other narrowly drawn exceptions. In a 1943 Supreme Court ruling against forcing anyone to say or even stand for the Pledge of Allegiance, Justice Robert Jackson wrote, "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom."
In 1820, Thomas Jefferson wrote of academic freedom at the University of Virginia, "This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow the truth wherever it may lead, nor to tolerate any error so long as reason is free to combat it."
You should not seek liberties for yourself that you would deny to others. Sure, it takes more effort to refute something offensive than simply to say, "Shut up," but if we cannot make our case without silencing our critics, we are in trouble. There is no good substitute for persuasion, and there are no shortcuts to freedom.