No gay rights without free expression

Three dates reliably bring me dread: the first Tuesday in November, April 15, and the day the Foundation for Individual Rights and Expression releases its annual College Free Speech Rankings.

Each spring offers new reasons to despair, and this year’s report doesn’t disappoint. According to the poll of nearly 60,000 undergraduates at more than 250 schools across the country, the percentage of students who believe that it is at least “rarely” acceptable to shout down a speaker, block other students from hearing a speaker, or violently disrupt a speech has risen to 68%, 52% and 32% respectively. Majorities believe that speeches promoting six out of eight controversial propositions — “Transgender people have a mental disorder,” “Abortion should be completely illegal,” and “Black Lives Matter is a hate group” among them — should be banned from campus. (71%, meanwhile, say that speeches endorsing the genocidal call “From the river to the sea, Palestine will be free” should be allowed.) And while either half or the majority of students believe that 15 out of 17 types of student groups ranging from “Christian” to “Democrat” to “LGBTQ” should be eligible to receive student activity fees, only 40% say the same for “pro-Israeli” ones (49% say pro-Palestinian groups should be eligible to receive student activity fees).

Five years of FIRE surveys demonstrate that the nation’s future leaders harbor a shocking degree of ignorance about America’s uniquely robust free speech principles, content neutrality foremost among them. To be sure, college students are like many other if not most Americans in this regard. Ask any random person on the street if they believe in free speech, and they’ll probably say “yes,” but dig down and you’ll discover that they adhere to the proposition, “free speech for me, but not for thee.” It’s all well and good to support the right to free speech of people with whom you concur; it’s the willingness to support the rights of those whose message you despise that is the true test of one’s commitment to the principle of free expression.

Particularly disturbing to me in reading this year’s survey is a trend I’ve been monitoring for some time: the persistently lower support for free speech among LGBT students compared to their heterosexual peers. As in past surveys, this year’s poll found that students in eight categories ranging from Gay/Lesbian to Pansexual (essentially, anything other than “straight”) were more likely than their heterosexual classmates to support censorship. For instance, while 69% of heterosexual students believe it is “never” or “rarely” acceptable to shout down a speaker, that figure stands at 49% for gay and lesbian students and 39% for queer ones. Similarly, 80% of straights oppose blocking other students from hearing a speaker, but only 69% of gays and 68% of queers agree. And while 75% of queer students think that a speech arguing “Collateral damage in Gaza is justified for the sake of Israeli security” should “definitely” or “probably” be banned, a mere 13% say the same for a speech promoting the destruction of Israel.

Put aside the monumental ignorance that leads some LGBT students, of all people, to take the side of murderous religious fanatics over the sole democracy in the Middle East. What makes these figures so tragic is that, were it not for the First Amendment and the robust protections it affords for free expression, none of these students would be enjoying the freedoms they so blithely take for granted today. For the legal equality and social acceptance that LGBT people now have is entirely a product of America’s free speech culture.

Consider that, in postwar America, homosexuality was a crime in every state, a sin according to organized religion, and a mental disorder in the eyes of the medical establishment. Gay bars and other gathering places were routinely raided by police and gay men and women were subjected to horrific medical experiments in a sadistic attempt to “cure” them of their “disease.” When Senator Joe McCarthy launched his crusade against communists and homosexuals in the State Department, it was reported that three-fourths of the mail pouring into his office was primarily fixated on the latter scourge.

In the 1950s, a small band of incredibly courageous people began a decades-long effort to change this state of affairs, and throughout it they did so by relying upon the Constitutional right to free expression. The first Supreme Court case to deal with the subject of homosexuality, ONE, Inc. vs. Olesen was a challenge to federal government censorship. Beginning in 1953, the U.S. Post Office and the Federal Bureau of Investigation launched a crusade against ONE, the country’s first widely circulated, national gay periodical. The following year, Los Angeles Postmaster Otto Olesen declared the magazine (which contained nary a racy photo or explicitly sexual article) as “obscene, lewd, lascivious and filthy” and therefore unmailable under the Comstock Act of 1873.

The magazine brought a suit against the Postmaster in federal court in California. Ruling in favor of the defendant, the Court stated that “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.” The case made its way to the Supreme Court, which in 1958 issued a brief per curiam decision overruling the lower court’s decision, effectively legalizing pro-gay political expression in the United States. In its first issue published after the ruling, ONE declared that “For the first time in American publishing history, a decision binding on every court now stands. ... affirming in effect that it is in no way proper to describe a love affair between two homosexuals as constitut(ing) obscenity.”

Several years later, in 1962, the right of gay people to express themselves as freely as their heterosexual countrymen was further advanced with the Supreme Court case MANual Enterprises vs. Day. MANual Enterprises was a publisher of “beefcake” magazines, publications whose images of scantily clad young men were no more prurient than those of the “pin-up” girls popular among American GIs during the Second World War. Following a campaign of government harassment similar to that endured by ONE, the company appealed its case to the Supreme Court. This time, the Court decided to hear the case. The government’s singling out homosexuals and denying them the right to receive certain publications through the mail, the company’s lawyer argued, “reduces a large segment of our society to second class citizenship.” It was a daring argument, utilizing a term popularized by the African American civil rights movement. “If we so-called normal people, according to our law, are entitled to have our pin-ups, then why shouldn’t the second-class citizens, the homosexual group . . . why shouldn’t they be allowed to have their pin-ups?”

Writing for the majority in a 6–1 decision, Justice John Marshall Harlan II stated that while he personally found the magazines to be “dismally unpleasant, uncouth and tawdry . . . these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates.” However qualified by his expressions of personal distaste, Harlan’s argument that erotic images created for the titillation of homosexuals were not inherently more obscene than those designed to arouse their heterosexual fellow citizens recognized an important principle that laid the groundwork for further gay rights legal victories to come.

Three years later, another instance of free expression in the furtherance of gay civil rights occurred outside the White House gates. A group of 10 men and women affiliated with the Mattachine Society of Washington, D.C., one of the first gay rights organizations in the country, formed a picket on the sidewalk across the street from Lafayette Square. Marching in an oval-like motion and dressed in business attire, they held signs declaring, “FIFTEEN MILLION U.S. HOMOSEXUALS PROTEST FEDERAL TREATMENT,” “GOVERNOR WALLACE MET WITH NEGROES, OUR GOVERNMENT WON’T MEET WITH US” and “U.S. CLAIMS NO SECOND CLASS CITIZENS, WHAT ABOUT HOMOSEXUAL CITIZENS?” Four years before the much more famous Stonewall Riot erupted in Greenwich Village, this was the first organized public demonstration for gay rights in the United States.

Though the protest garnered scant media attention, it inspired gay men and women across the country more than anything up to that time. “Nothing like these demonstrations has been seen before,” Eastern Mattachine Magazine, a publication of the Mattachine Society, enthused. “The most hated and despised of minority groups has shown its face to the crowds, and it is plain for all to see that they are not horrible monsters. They are ordinary looking, well-dressed human beings!” For one of the picketers, the event was “the most important day of my life” next to her marriage to her partner over two decades later.

For the leader of the march, Mattachine Society co-founder Frank Kameny, free expression had been a vital tool since the federal government fired him for being gay. In 1957, the Harvard-trained Army Map Service astronomer was recalled from his observatory in Hawaii to Washington. Army officials had discovered an arrest record for “lewd and indecent acts” he allegedly committed in a police entrapment operation while visiting San Francisco. Kameny was fired on the spot and joined the ranks of the thousands of other patriotic American gay men and women rejected by their government solely because of their sexual orientation.

What distinguished Kameny from the rest was that he had the courage to fight back, and the wherewithal to base his case for equality on the Declaration of Independence and the Constitution. He appealed to the Civil Service Commission (predecessor to the Office of Personnel Management), and when that failed, argued his case all the way to the Supreme Court. Not even the ACLU was willing to defend a homosexual in 1960, however, and so Kameny, who had no formal legal training, represented himself. In his petition to the Court, he wrote:

The government’s entire set of policies and practices in this field is bankrupt, and needs a searching re-assessment and re-evaluation — a re-assessment and re-evaluation which will never occur until these matters are forced into the light of day by a full court hearing, such as is requested by this petition.

Kameny was denied his opportunity to expose the irrationality of government discrimination against homosexuals in “the light of day” — the Court refused to hear his case. But the setback was only temporary. Kameny began a lifelong campaign for equality on all fronts that culminated with his receiving a formal apology from OPM Director John Berry — himself a gay man — in 2009.

The most celebrated moment in the history of the gay rights movement, the Stonewall Riot of 1969, was, at its heart, a protest in defense of the First Amendment’s protection of freedom of association. As in many jurisdictions across the United States at the time, serving alcohol to homosexuals was illegal in New York City, as was dancing between two members of the same sex. This led to a situation in which the only gay bars allowed to operate were controlled by the mafia, who paid the police for the privilege. This arrangement, however, did not stop the police from regularly raiding the bars and carting out patrons for arrest and humiliation before tipped-off newspaper photographers.

On the evening of June 28, 1969, a group of patrons at the Stonewall Inn said: Enough. According to the Constitution, all Americans have the freedom to associate with one another; nowhere does it state that this right is exclusive to heterosexuals or, for that matter, people with brown eyes or black hair. Patrons forcibly resisted arrest, the NYPD called in backup, and for almost a week, the police and gay people engaged in running street battles outside the Stonewall. The following June, New York City held the world’s first gay pride parade, a tradition that has now extended to an entire month of commemoration and celebration of the freedom to be oneself.

So much of the widespread acceptance that LGBT people enjoy today is attributable to free expression. Social attitudes were gradually changed by films like 1972’s That Certain Summer, the first gay-themed TV-movie and one of the earliest positive portrayals of gay people, and TV shows like Will & Grace, which brought lovable gay characters into the homes of millions of people across America and around the world. (And which then-Vice President Joe Biden cited as playing a role in his own evolution on the issue, a gaffe that forced President Obama to declare that he, too, now supported marriage equality). The AIDS activism of the 1980s and 1990s, much of it confrontational, awakened the country to the devastating effects of a terrible disease. The decision by celebrities, athletes, politicians, and business leaders to come out continues to have an immeasurably positive impact on the way straight people treat their gay neighbors, colleagues, and family members. Indeed, coming out is itself an act of free expression; every gay person utilizes it when they acknowledge the truth about themselves to others.

Considering this awe-inspiring history, the sort of thing that ought to make young people proud to be American, how is it that free speech is opposed by so many of the students who have benefitted from it most? One reason is power dynamics. While gay people desperately needed free expression to press their case when they were treated as criminals by their own government, today, pro-LGBT sentiment is widespread throughout corporate America, Hollywood, the non-profit sector, the business world, higher education, labor unions, and white-collar professions. Why, the college sophomore asks, should we allow bigots to challenge this hard-won consensus and potentially drag us back to the proverbial Stone Age? This dynamic is hardly exclusive to the LGBT movement; just look at all the right-wing critics of “woke” censoriousness who have gone silent since Donald Trump returned to the White House and launched an anti-free speech campaign against his critics. This is all the more reason to support content-neutral free speech policies: in a democracy, power changes hands, and smothering the speech of one’s adversaries creates a precedent for them to do the same once they’re in charge.

Another reason is a total lack of knowledge about the history outlined in this essay. Young LGBT people today are far likelier to know about Marsha P. Johnson, a drag queen who has earned iconic status for “throwing the first brick” at Stonewall despite not even being there when it erupted, than they are Frank Kameny, Elaine Noble, Bayard Rustin, or Martina Navratilova. The early gay rights movement is too heavily composed of “cisgender” white men to serve today’s “intersectional” purposes. Working within the system, using the methods provided by the Constitution, trying to persuade those who disagree with you, all of these are forms of “respectability politics,” the strategy of sell-outs. In this narrative, Stonewall is given primacy, a riot against cops better suited to inspire a radical political agenda than the slow and steady work of lobbying, legislating and litigating.

Finally, there’s the influence of academic queer theory and the proliferation of “queer” as not so much a sexual identity but a political one. Like other modes of critical theory, queer theory seeks to subvert hierarchies and challenge established knowledge, “queering” them such that they become totally unrecognizable in their original form. It’s through sophistry like this that constitutionally protected speech becomes “violence” to be suppressed. Tolerance, a word once esteemed by gay and lesbian activists seeking a place at the table in a pluralistic society, is now denigrated in the fashion of Herbert Marcuse’s concept of “repressive tolerance,” which argues that because the expression of conservative views is harmful to marginalized groups, it ought to be suppressed.

As a gay writer who has reported from countries where gay people live under extreme social and legal subjugation, I have witnessed first-hand the inextricable connection between free expression and LGBT rights. Looking at a map of the world, it’s no coincidence that the countries most accepting of LGBT people are liberal democracies that, however imperfectly, ensure freedom of expression, and that by and large the world’s dictatorships and illiberal regimes either criminalize or harshly repress homosexuality. Just as there is no equality for gay people without free expression, the equality of gay people will not be ensured unless the right to free expression applies equally to everyone.

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James Kirchick is a senior fellow at the Foundation for Individual Rights and Expression and the author of Secret City: The Hidden History of Gay Washington.