The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In commemoration of the 100th anniversary of Schenck v. United States and Abrams v. United States, the SMU Law Review has published an important symposium issue with a range of outstanding contributors reflecting on the legacy of those decisions.
The contributors are Lack Bloom (my SMU colleague), Larry Alexander, Kent Greenawalt, Ronald Krotoszynski, Mari Matsuda, Rodney Smolla, Alexander Tsesis, G. Edward White, Christopher Wolfe, and me.
My own essay, "Born in Dissent: Free Speech and Gay Rights," can be viewed and downloaded on SSRN here. My focus in this particular essay is on a little-known gay political organization that formed almost fifty years before the Stonewall Inn riots in 1969. From the abstract:
It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his opinions in Schenck and Abrams. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites—all of these—would have been swept away in the absence of a strong and particularly libertarian First Amendment. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal.
This essay tells the story of the Chicago-based Society for Human Rights, the very first gay political organization in the United States, which was founded by Henry Gerber in 1924—five years after Schenck, and before the full meaning of the Abrams dissent was accepted First Amendment doctrine. The police quickly shut down the group and arrested its members.
Justice Holmes himself never met Gerber. He would have found the idea of a gay-rights organization incomprehensible, something more akin to the bizarre sex cult Chicago police thought they had discovered rather than the noble experiment Gerber thought he was launching. But if it's true that the best test of truth is the power of the thought to get itself accepted in the competition of the market, the idea of freedom and equality for LGBT people has attained the status of Holmesian truth.
As scholars like William Eskridge, Carlos Ball, and others have demonstrated, I argue that the First Amendment gave the LGBT-rights movement the vital breathing space it needed to emerge as a political, legal, and ultimately moral force.
This history of protected dissent, I assert in the conclusion, should inform how we think about symmetrical protection for those who dissent from various LGBT-rights projects today:
The norms the state enforces are as changeable as culture itself. When LGBT advocates defend the role of the state as enforcer of social norms at the expense of speech and expressive association, I think about the painful gay ordeal with the caretaker state. In Gerber's Germany, there were nightclubs for gays in the 1920s and concentration camps for them in the 1940s. The relative tolerance of Gerber's pre-Depression New York gave way to the repression of the 1930s.
There is a cautionary lesson in this. Somewhere, someday we may again hear the state's call to heel. Comes that day we will look for sanctuary. We will be relieved to find the constitutional experiment known as the First Amendment still going strong, large enough to accommodate dissent about ultimate good and sturdy enough to fend off the state's long and ready list of worthy causes.
You can view the whole symposium issue with links to the individual essays here. My thanks go to my research assistant, Nita Hight, and to the editors and staff members of the SMU Law Review.