Free speech and LGBT rights

Almost a century ago, just as the modern First Amendment was born, a little-known gay-rights organization in Chicago emerged from its closet blinking into the daylight

|The Volokh Conspiracy |

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.

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  1. “moral” force? Not even close.

  2. Please stop lumping us together with other groups in a letter salad like “LGBTQ+“.

    And stop pretending that free speech was somehow created by lawyers and judges; at best, some lawyers and judges at some point stopped screwing us. Don’t expect a pat on the back for that.

    1. Who is the “us?”

      Still, your larger point is correct. Law professors have a psycho-social payoff that the work that they do *really* matters. Alas, courts are a hollow hope for the protection of individual rights and social change. The real work is changing the culture through activism. If you have to make a constitutional argument on anything, you’ve already mostly lost. Likewise, a favorable court decision is soon in the offing if the culture is already on the fence or supportive.

      1. ” If you have to make a constitutional argument on anything, you’ve already mostly lost. Likewise, a favorable court decision is soon in the offing if the culture is already on the fence or supportive.”

        There are three forces here that matter:

        The culture/public.
        The legal community/judiciary.
        And the political class.

        Get any two of them on your side, and you’re going to win, though largely futile controversy may follow. All three, and the issue is settled.

        Just one, and any victory is temporary.

        But when you get two on your side, it’s usually the judiciary and the politicians, because the judiciary are chosen by the politicians, and will usually only get out ahead of them if they know the politicians have their backs, and will arrange to make the public’s opposition powerless.

    2. Please stop lumping us together with other groups in a letter salad like “LGBTQ+“.

      He didn’t. He consistently used “LGBT”, which has been the standard for decades.

      1. I’m not sure about decades. When I was in college, it was gays or gays and lesbians. I first heard “GLBT” (and that was the order it was said in- the political decision to put women first was made later) sometime in the mid-to-late 1990’s. LGBT, I actually remember, I was at an academic function in 2006 and said GLBT and was corrected by a professor who was a lesbian civil rights activist.

        And, of course, in recent years it has become alphabet soup.

        I usually just say “gay rights” or maybe, if I am speaking more broadly, “gay and trans rights”. I think at this point a lot of activists have tried to assign a function for language that it cannot possibly carry. The way to actually be inclusive is to care about the rights of these various sexual minorities, not to make sure everyone is listed in the acronym.

        1. Nah, lesbians successfully advocated for swapping to LGBT back in the 90s, and it’s been the standard since.

          And even most of the advocacy organizations haven’t bothered with the letters after “T” (no one can even agree if “Q” stands for “Queer” or “Questioning”).

          1. Agreed. Once the HRC adopted LGBT in the 90s the argument over the acronym largely ended.

            Saying that – I stopped using it a decade or so ago. Using more inclusive terminology than the silly acronym.

        2. I just call them “alphabet soup people”, or “nutcases” if I’m in a bad mood.

          There’s no point in trying to keep up with the terminology when half the point of the terminology is to play “gotcha” when you don’t notice that it changed a half hour ago.

          And if they really expected people to use it they’d have found some excuse to cram in some vowels, anyway.

          1. The transition from gay to LGBT to alphabet soup reminds me of a Pi comic I can’t find.

            Normals Engineers Arseholes
            3.14 159265 3589793238462643383279502…

            1. Just realized I should have added an incorrect digit somewhere in the third section just to see if anyone would notice and comment.

  3. “Holmesian truth” – that is not the compliment the author thinks it is.

    1. “If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

      /Holmes dissenting in Gitlow n. NY, 268 U.S. 652 at 673 (1925)

  4. Did not Beto O’Rourke prove that gays are incompatible with freedom of speech?

    1. To Dale Carpenter’s credit, he has a post a few weeks back pointing out the irony of Robert O’Rourke’s position.

  5. It was not unexpected social ostracism would be wielded against the conservative viewpoints of social issues, as they had successfully wielded it for millenia. It was shocking some time back when Disney offered partner benefits in defiance of that Family something Council or other boycott.

    Now it’s the other way, but the lesson to just live and let live, so long the desired goal of those who simply wanted to live free without active oppression, was not learned.

    But now it goes beyond that, with polls showing some want to delete the First Amendment (don’t say “change” — authorizing the power hungry to outlaw speech they can convince the masses is outrageous is a trivial bar to leap.)

    And we have presidential candidates not just recommending businesses censor political opponents, which is unseemly enough, but now threatening to harm those companies legally if they don’t.

    Looks like the ol’ boxing gloves of speech defense, gathering a lot of dust for decades, aren’t retired quite yet.

    But this time it’s different. This time, the opponent seeks to censor with the aproval of their own conscience, because it gains them political power.

    Oh, wait. It’s exactly the same.

    1. Now it’s the other way, but the lesson to just live and let live, so long the desired goal of those who simply wanted to live free without active oppression, was not learned.

      When, in the history of the United States, have social conservatives seriously offered “live and let live”?

      Can you name one year where they did that?

    2. “Looks like the ol’ boxing gloves of speech defense, gathering a lot of dust for decades, aren’t retired quite yet.”

      And with the realization that the censors are going to be of the left, not the right, the ACLU has ceased having much interest in defending their title, too.

      1. That’s not true. The ACLU has backed away from a couple of positions, but still takes cases litigating conservatives’ speech rights all the time.

        1. Their position, when last I looked, was that they would defend free speech, but only when it didn’t conflict with the rest of their agenda.

          They’re no longer a principled defender of free speech, they’re now a contingent defender of free speech, with other priorities.

  6. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal.

    What a strange claim.

    Gay political efforts faced censorship, police harassment, mass firings, and so-on well into the middle of the 1900s. It wasn’t that faith in the First Amendment suddenly grew following WWII, it was that for a variety of complicated reasons, social tolerance did.

    Which is to say, the First Amendment may tip things over the edge, but in the face of strong social opposition, it will never be enough. That’s why Baker v. Nelson was dismissed in 1972, but Obergefel v. Hodges was a serious question in 2016. Not because the First Amendment changed, but because society changed.

    And be honest, many other western countries, none of which have the same strong Freedom of Speech protections we do, also liberalized on these social issues in the mid 1900s. In only the rarest of cases do the courts lead the culture, and in the case of LGBT rights, they didn’t.

    1. “Not because the First Amendment changed, but because society changed.”

      Except that the evidence from ballot referenda suggests that Obergefel wasn’t a result of society changing, but instead a leading indicator.

      1. By the time Obergefel was decided, gay marriage was at least a 50-50 issue. In the 1990’s, when President Clinton summoned his inner Southern evangelical homophobe and signed DOMA, it was something like an 85-15 issue.

        1. Clinton signed DOMA privately at midnight to signal his disapproval.

          1. He then ran ads on Christian radio stations bragging about it.

            He was horrible.

            1. Horrible? Bah. You mean two-faced, like most politicians? One thing I respected about Bill Clinton, and why I voted for him, is that he at least cared what the public at large thought. A rare feature in Democrats these days.

              1. It’s a pretty bald thing to be two-faced about: taking money from gays in Hollywood while running ads advocating discrimination against them in the South.

                1. Bad to be two-faced about, or bad to be baldly two faced about?

        2. By the time Obergefel was decided, 31 states had passed state constitutional amendments barring SSM.

          In how many states was SSM adopted democratically prior to being imposed by the judiciary? I can’t off hand think of any.

          It’s true that SSM was the law of the land by the time Obergefel was ruled, but that’s only because Obergefel merely endorsed what the state courts had already done.

          1. “In how many states was SSM adopted democratically prior to being imposed by the judiciary?”

            10, plus DC. (VT, NH, ME, NY, WA, RI, MN, DE, HI, and IL.)

      2. Per Pew, marriage equality got plurality support (that is, support was greater then opposition, but not above 50%) in the 2010/2011 timeframe. It got majority support (above 50%) around 2013.

        By the time Obergefel v. Hodges came along, support was already at 55%.

        Other sources disagree on the precise numbers/years, but there’s no serious disagreement that support had the majority before Obergefel.

      3. For comparison, support for interracial water was deeply underwater in 1967 when Loving v. Virginia struck down miscegenation laws, and wouldn’t gain plurality support for decades. That was the courts getting well ahead of the people.

  7. “First Amendment gave the LGBT-rights movement the vital breathing space it needed to emerge as a political, legal, and ultimately moral force.”

    second look at 1A I guess

    “ultimately moral force”

    “moral”

    “When I use a word,’ Dale Carpenter said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

    1. moral

      Many of us do not use the definition of “moral” sourced from magic sky wizards.

      1. “It has been said that when human beings stop believing in God they believe in nothing. The truth is much worse: they believe in anything.”

        1. Cranky, religious, bigoted clingers are among my favorite to-be-replaced losers of our culture war.

          By age 12 or so, childhood indoctrination fades as an excuse for gullibility, bigotry, backwardness, ignorance, and superstition, Bob. By ostensible adulthood it is no excuse. Not even in the can’t-keep-up stretches of Ohio. Choose reason. Every time. Be an adult.

          Or, at least, try.

        2. As someone who believes in God, I always find it funny when fellow believers can’t believe anyone could be moral if they didn’t believe in God. As though fear of the almighty was all that was keeping them from becoming cannibal rapists.

          I also find peons to morality kinda rich coming from ‘kill everyone in Gitmo, death penalty for 9-year olds who have killed someone, shoot people crossing the border illegally’ Bob. I guess he rolls old testament smitey God.

          1. A God that supports killing people left and right…maybe Bob’s just a Mohammedan. *snicker*

          2. Can you believe in God if you don’t believe in the old testament God? Still God, last time I checked…

            (My point being that everyone has their own version of the Truth, all assumptions of theirs’ own superiority being based solely on subjective opinion.)

            Cheers.

          3. I always find it funny when people espouse a belief in God and then try to justify immoral behavior within that framework.

            It’s just another way of saying “I believe in God, but I don’t actually know anything about religion.”

            1. My faith is includes as a central tenet grappling and searching for what’s moral and what’s not.

              Sounds like yours dictates its idiosyncratic morality for the entire world.

              To each their own, I guess.

          4. What I have always found funny about atheists is that their morality always draws from religion and you really haven’t provided a convincing argument as to why we should be nice and moral to one another if there isn’t desert skyvoice who will punish you for all eternity if you disagree. You can certainly argue that the threat of punishment hasn’t stopped religious people from being immoral (it still doesn’t stop all immorality to this day), but if we’re all just sentient meat sacks with no repercussions other than feeling bad due to societal standards that expire with our death, then there’s really no reason to be moral that isn’t self-congratulatory.

            You might not like the fact that fear of the almighty is all that’s between us and savages, but at some point you have to work within reality.

            Funny how all those authoritarian regimes ban religion. It’s almost like there’s some sort of connection between belief in God and freedom.

        3. “It has been said that when human beings stop believing in God they believe in nothing. The truth is much worse: they believe in anything.”

          Well, since your God seems to think that murdering Mexicans is fine and controlling women’s sexuality is mandatory, I’d say that I am less than convinced that belief in God constrains people from holding evil, intellectually bankrupt beliefs.

          1. “murdering Mexicans is fine”

            Not what he said, Dilan. This is why we can’t have nice things…

      2. That would be sky wizard. At least do us the favor of using the singular, and using God’s proper pronouns. 😉

  8. I look at the posts above and I see that the spiritually ugly troll is still here trying to stir up angry reactions. I wonder what that person really believes in. I also post using a pseudonym, but I avoid fights. It is best to find out what people really believe in and work together than it is to hurl insults and get us fighting.

  9. There’s no greater shoehorn than the “gay rights” shoehorn.

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