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Posts for March, 2011

The First Amendment Lives

Jim Burroway

March 2nd, 2011

That’s the 8-1 decision of the U.S. Supreme Court in the case of Snyder v Phelps (PDF: 248KB/36 pages), an appeal of a five million dollar judgment against the Fred Phelps and the Westboro Baptist Church. The court reversed a lower court decision in favor of the family of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq and whose funeral was picketed by the Phelps clan. The protests included signs with the statements “Thank God for Dead Soldiers” and “Fags Doom Nations.” The Phelps clan regularly protests military funerals to push their message that God hates the U.S. because we’re not executing homosexuals as Leviticus commands.

According to the majority opinion written by Chief Justice John Roberts, Westboro followed all of the legal restrictions imposed on the group, and by noting them, the court appears to have reaffirmed its approval of those restrictions:

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

…Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

Roberts warned that “our holding today is narrow” and is limited by the particular facts before the court. Those facts included that Westboro complied with local laws and did not instigate a public disturbance during their protest. As to the nature of Westboro’s protest:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The Westboro Baptist clan protesting at Matthew Snyder's funeral

This ruling is important for many reasons. First and foremost, it preserves the primacy of free speech in America, which benefits us all. But from a parochial pro-LGBT narrative, it’s equally important to note that it proves the lie to the multiple instances when anti-gay activists falsely claimed that advances in LGBT equality and protections — whether they come in the form of marriage equality or hate crimes protections — will result in the infringement of religious and speech rights. They never have and, if this ruling is any indication, it reaffirms the fact that they never will. So the next time someone claims that marriage equality will result in pastors being prosecuted for hate speech, make a note of it: Snyder v Phelps.

Justice Samuel Alito dissented, noting that Albert Snyder, the marine’s father who brought the suit citing emotional distress, was not a public figure, but a private individual who simply wanted to bury his son in peace. He argued that the first Amendment does not mean “that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.” He then listed some of that possible emotional injury:

Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Id., at 3781–3787. Another placard depicted two men engaging in anal inter-course. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

This line of reasoning suggests that Alito thinks being mistaken for “a homosexual” is grounds for emotional distress. Interesting…

There’s something else that’s even more interesting: Alito made a point that the larger court refused to consider.

After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A.Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” … Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly…

The larger court did not address the “epic” except in this footnote on page 3:

A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral” (emphasis added)); this Court’s Rule 14.1(g)(petition must contain statement “setting out the facts material to consideration of the question presented”). Nor did Snyder respond to the statement in the opposition to certiorari that “[t]hough the epic was asserted as a basis for the claims at trial, the petition . . . appears to be addressing only claims based on the picketing.” Brief in Opposition 9. Snyder devoted only one paragraph in the argument section of his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case.

In other words, the Snyders may have had a claim based not on the protest itself, but on Westboro’s Internet posting that was addressed specifically to the family. But for whatever reason, the family chose not to pursue that claim before the high court. Given the court’s warning about the narrowness of the case based solely on the facts considered by the court, the decision might have been a bit different had the family’s attorney chose to include the “epic” as part of their appeal.

Britain cracks down on freedom of speech

A Commentary

Timothy Kincaid

January 27th, 2011

Two men in the UK are being prosecuted for distributing leaflets that violate the law forbidding the incitement hatred on the grounds of sexual orientation. (Independent)

The men charged were named last night as Razwan Javed, 30, and Kabir Ahmed, 27. They are accused of handing out a leaflet entitled “The Death Penalty?” in Derby.

The leaflets, which were also pushed through letterboxes, are understood to have called for homosexuals to be executed.

What does this accomplish? Who wins when speech is stifled? Certainly not our community, who now appear to be intolerant of religious view. Certainly not Muslims, who now are cast as murderous. Certainly not people of good will, who now have to take sides and play the which-minority-do-we-support game.

I think it far wiser to allow haters to say outrageous things and then use that as an opportunity for dialogue and interaction. Give Muslim clerics in the UK the opportunity to side with the gay community through public discourse, rather than force them to take a ‘religious freedom’ position that calls for the death penalty.

I know that other cultures have other values, but I am glad that the US values freedom of speech over freedom not to be insulted.

A truly misguided ruling

A Commentary

Timothy Kincaid

January 14th, 2011

The Canadian Broadcast Standards Council has its collective head up its collective butt. (Rolling Stone)

The Canadian Broadcast Standards Council has ruled that “Money for Nothing,” a Dire Straits hit from 1985, is too offensive for Canadian airwaves. The song is being singled out for the repeated use of an anti-gay slur — “that little fagg*t” — in its second verse.

The little fagg*t with the earring and the makeup
Yeah buddy, that’s his own hair
That little fagg*t got his own jet airplane
That little fagg*t he’s a millionaire

Now there is no doubt whatsoever that the lyrics of this song are sexist, racist and homophobic. But the important matter is whether the song celebrates these attitudes or mocks them.

The song narrator is a appliance store delivery man who is resentful of the rock stars he sees on MTV who “ain’t working” but are “banging on the bongos like chimpanzees” and have “the earring and the makeup” and who get their “money for nothing and their chicks for free.” And the lyrics are based on direct quotes from one such guy in a New York appliance store who Mark Knopfler overheard making some of the exact comments, grabbed a pencil, and scribbled down.

But along with the resentment is envy and regret, the acknowledgment that he didn’t “learn to play the guitar” and he doesn’t have his own jet airplane and he isn’t a millionaire. And, as the song was, ahem, heavily played on MTV, it shouldn’t take genius to figure out that the musicians were singing about the attitudes of the people who derided and hated them.

When I first hear Money for Nothing, the “fagg*t” language was jarring… until I finally realized that the protagonists lyrics answer himself, are a reminder of what his own bigoted values have given him. His choices have led him to hauling refrigerators and installing microwave ovens.

But I guess the Very Serious People at the Canadian Broadcast Standards Council just don’t get irony or sarcastic social commentary. So no more “I want my, I want my, I want my MTV”.

UK LGBT Advocate: “Christian Homophobes Should Not Be Criminalized”

Jim Burroway

January 12th, 2011

The American First Amendment has been interpreted very broadly throughout much of the history of the United States. Courts have on occasion allowed a few limits to where free speech can be exercised (free speech zones during political conventions, exclusion zones around abortion clinics, etc.) but efforts to place limits on speech itself, regardless of how many people it offends, have been consistently struck down.

Such is not the case in Great Britain and many other western countries. Last April, British pastor was arrested and detained for standing on a street corner and preaching that homosexuality is a sin. He was charged with violating the Public Order Act by making “threatening, abusive or insulting” remarks to passersby. The case was dropped before it could go to trial, and the preacher received £7,000 in damages and an apology from the Chief Constable. UK LGBT advocate Peter Tatchell writes that the arrest should not have happened in the first place:

As a campaigner for gay rights, I disagree with Mr Mcalpine’s intolerant views. But as a defender of free speech, I endorse his right to express them. Indeed, I had offered to testify in his defence, had his case gone to court.

Freedom of speech is one of the hallmarks of a civilised society. Mr Mcalpine’s views were homophobic, but the fact that he was treated as a criminal for expressing them, shocked me. The officer who arrested him, although doubtless well-intentioned, interpreted the law in a harsh, authoritarian manner. Mr Mcalpine was not aggressive, threatening or intimidating. He did not incite violence against lesbian, gay, bisexual or transgender (LGBT) people; unlike some extremist Christians in Uganda and Nigeria.

Tatchell notes that the Public Order Act can lead to arbitrary applications:

Contrast his case with my experience. In 1994, the Islamist fundamentalist group Hizb ut-Tahrir (HT) held a mass rally at Wembley Arena. Its members advocated killing gay people and ‘unchaste’ women. They heaped hatred and abuse on Jews and Hindus. Together with five of my colleagues from the gay rights group OutRage!, I staged a peaceful, lawful counter-protest. It was six of us against 6,000 of them. Some members of HT threatened: “We will track you down and kill you.”

Despite these criminal incitements to murder us, they were not arrested. We were. Our free speech was denied. We were charged under the Public Order Act. In contrast to Mr Mcalpine’s case, the police did not drop the charges and apologise, let alone compensate us. It took nearly two years of lengthy, costly legal battles for me to finally win an acquittal.

Laura Schlessinger and the First Amendment

Jim Burroway

August 18th, 2010

Laura SchlessingerAfter I posted the news of Dr. Laura Schlessinger’s announcement that she was quitting her radio program at the end of the year over controversy over her usage of a racial epithet on her program last week, I thought some more about her tendency toward playing the victim. I gave a few examples from rather ancient history in that post, but I didn’t include her latest example. Last night, when she announced her retirement from radio on Larry King Live, she said:

SCHLESSINGER: You know, when I started in radio, if you said something somebody didn’t agree with and they didn’t like, they argued with you. Now, they try to silence you. They try to wipe out your ability to earn a living and to have your job. They go after affiliates. They send threats to sponsors.

KING: That’s their right, too.

SCHLESSINGER: Yes, but I don’t hatch the right to say what I need to say. My First Amendment rights have been usurped by angry, hateful groups who don’t want to debate. They want to eliminate.

So, that’s why I decided it was time to move on to other venues where I could say my piece and not have to live in fear anymore that sponsors and their families are going to be upset, radio stations are going to be upset, my peeps, as I call them, are going to be upset.

I think Schlessinger has a rather odd view of the First Amendment. It only says that the government will not infringe on anyone’s right to say whatever they want to say. As we’ve pointed out many times, that provision protects some egregiously racist speech, much much worse than anything Schlessinger has ever said or written. And their rights have been protected in the courts as hers would be.

But as anyone with a passing familiarity with the First Amendment knows, that right doesn’t extend to private platforms. Any broadcaster or editor is perfectly free to bar any opinion, and they can use any arbitrary or inconsistent whim they wish to apply. The First Amendment does not prohibit that in the least. Talk Radio Network, which syndicates Schlessinger’s program, is free drop her program anytime they want, and they can do so for any reason as long as it is in accordance with their contract with her.

But that’s not what’s happening. It’s Schlessinger who’s walking away, not Talk Radio Network. Nor is Clear Channel Communications refusing to handle her satellite distribution and advertising sales. The decision to end Schlessinger’s program, according to her own admission to Larry King last night, is entirely her own.

Schlessinger prides herself on her calling-’em-as-she-sees-em aggressive style. To her, this brand of honesty is the essence of character. But she’s clearly not exhibiting it here, and that shouldn’t surprise anyone. It’s just another instance of a longstanding pattern. When her short-lived 2000 television talk show fell apart over low ratings and controversy over staff members posing as fake guests, she blamed gay activists for silencing her. Fast forward a decade, and she’s ending her radio show of her own volition and claims that someone — I don’t know who — is silencing her. But that’s not true. She’s only going away because people are criticizing her, and she seems to think the First Amendment ought to somehow make her immune from that. She’s wrong. Criticism is part of the essence of the First Amendment, not its enemy.

Ironically, one of Dr. Laura’s books is titled Stop Whining, Start Living.  That’s rich because being tough-talking and thin-skinned is a really bad combination. She might consider that as the basis for an eleventh stupid thing people do to mess up their lives.

You can’t even buy a right

Timothy Kincaid

June 23rd, 2010

Two stories today reflect how issues of justice, rights, fairness, and civil responsibility are often presumed to disappear the minute that gay folk arrive. Far too often it is assumed, indignantly, that civil governments belong to heterosexuals.

Take, for example, the situation in Philadelphia.

In 2000, the US Supreme Court found that the Boy Scouts of America are a private organization and that their freedom of association allowed them to exclude gay and/or atheist boys and men from participating. And I agree with that decision; the Boy Scouts should be able to limit their membership in whatever manner that they choose.

However, if they choose to operate as a private organization, they are not entitled to preferential treatment from the taxpayers, who include a large number of gay people, atheists, and their family, friends, neighbors, and allies. In other words, discriminate however you like, but don’t do it on my dollar.

In Philadelphia the city counsel had passed protections that banned discrimination on the basis of sexual orientation. But they found that they were in conflict with this policy when it came to the Boy Scouts. The Cradle of Liberty council has been leasing nearly 2,000 square feet of office space from the city at the cost of one dollar per year. So Philadelphia said that the local group either needed to renounce the discrimination policies of the national group or they were not going to get any more freebies.

But the leadership of the Boy Scouts believe that they are entitled to have it both ways. It’s discrimination, they cried, to not give us free rent. We can exclude who we want, and to insist that we open our city funded doors to all residents is a violation of our free speech rights.

So they went to court arguing that not only are they entitle to free assembly and free speech but that they are also entitled to free rent.

And a jury agreed. (WHYY)

A jury in Philadelphia has decided the city cannot evict a local Boy Scouts group from a city-owned building because of a national policy that bans gays.

Cradle of Liberty Council lawyer Jason Gosselin says the ruling means one simple fact: the Scouts can stay in their building in Center City rent free.

Meanwhile in Minneapolis, it seems like gay people don’t have a right to assembly, even if the city isn’t subsidizing them. (Tribune)

The gay pride organization paid the city more than $36,000 for the use of a park. And they are trying to keep an evangelist from coming into the festival and disrupting the event.

But the city thinks that the preacher has a right to free speech – something that is startlingly missing from gay folk.

But Pride Festival organizers say they have the right to keep Johnson off the grounds because they paid more than $36,000 for the use of the park. Festival manager Jim Kelley says Johnson is free to preach his message across the street.

The Minneapolis Park Board is backing the activist on free speech grounds, so the festival organziers are going to court Wednesday seeking an injuction to reverse that decision.

Lying About The Hate Crime Bill, #2: “A Danger To Religious Freedom”

Jim Burroway

July 16th, 2009

Among the many claims of opponents to the Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R.1913) — known in the Senate as the Matthew Shepard Hate Crimes Prevention Act (S.909) — is the contention that this bill represents a danger to religious freedoms. The proposed legislation would expand the already existing federal hate crime law to include violent crimes based on the victim’s actual or perceived sexual orientation, gender, gender identity, and/or disability. The current law already covers actual or perceived race, ethnicity, color and religion. This is very important to remember because it makes the “danger to religious freedom” argument particularly illogical.

That argument, as promulgated by anti-gay activists, insists that the proposed hate crimes prevention act will effectively criminalize religious objections to homosexuality and will “muzzle” pastors. Here’s how the Family Research Council recently put it:

Let’s say you preach from Genesis 19 or Romans 1, referencing the homosexual agenda or lifestyle. Your sermon could be heard by an individual who applies it in a way prohibited by a hate crimes law. Not only would the offender be prosecuted under this law, but you could also be prosecuted for conspiracy. Consequently, hate crimes laws would radically impact our freedom of speech as Christians.

Matt Barber puts it this way:

This creates both a sociopolitical and legal environment wherein traditional sexual morality officially becomes the new racism. Those who publically [sic] express medical, moral or religious opposition to the homosexual lifestyle are tagged by the government as “homophobic bigots” to be treated no differently by law enforcement, the courts or larger society than the KKK or neo-Nazis.

Barber’s warning is particularly relevant. What would happen if “homophobic bigots” were treated exactly the same as the KKK or neo-Nazis?

Well, to answer that, we could well ask how does the current hate crimes law treat the KKK and neo-Nazis?

The KKK at the Minnesota state Capital, August 2001

The KKK at the Minnesota state Capital, August 2001

The federal hate crime law already protects against crimes motivated by hatred of religious groups, but that didn’t keep neo-Nazis from winning the right to march in predominantly Jewish Skokie, Illinois (with the ACLU’s help, I might add). The current hate crime law also protects against crimes motivated by racial hatred, but that didn’t stop the KKK from marching and shouting slogans in Cleveland (again with the ACLU’s help). Hate groups have rallied at state houses in Minnesota, Nebraska and South Carolina, In fact, White Supremacist groups have held nearly a hundred rallies, demonstrations and meetings across America in this year alone — and the existing hate crime law at both the state and federal level have deterred none of it. And yes, they’ve even protested gay pride parades as well, something that they have in common with more than a few conservative Christian groups.

“Pastor” James Wickstrom

“Pastor” James Wickstrom

Extremist hate groups are also free to practice their hate speech, including when they do so under the guise of religious belief. There are some three dozen racist Christian Identity groups active in America right now. Some even operate radio broadcasts and “prison ministries.” One such “pastor,” James Wickstrom, argued that Jews should be beaten, thrown into a wood chipper, and “give them the holocaust they rightly deserve.” This, even though current hate crime laws already protect on the basis of religion.

Now if “pastor” Wickstrom can say something as offensive and dangerous as that with the existing hate crime laws in place under the guise of his religious beliefs, then there’s nothing that Matt Barber can say now that can’t be said should the Matthew Shepard bill become law. And that’s because the First Amendment to our constitution provides a pretty ironclad guarantee of freedoms of speech and of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

And under that Ironclad guarantee of freedom of speech and religion, some pretty unsavory groups have freely spouted their unsavory beliefs. Our First Amendment protects our right to say pretty much anything we want, no matter how ugly, hateful, or factually wrong we may be. And no law — not even this proposed hate crimes law — can get in the way of that.

But that’s not what opponents to the hate crimes bill would have you believe:

If we do not act decisively at this time, S.909 will make illegal every word in the Bible describing the destruction wrought by this vile behavior, and prepare the way for total censorship of the Gospel of Christ. Our children will pay a horrible price for our cowardice.” Rev. Flip Benham, National Director, Operation Rescue/Operation Save America

But S.909, the senate version of the bill, won’t make illegal any words whatsoever, because it only expands the current hate crimes law to cover sexual orientation. And the current hate crimes law doesn’t make illegal any words either. And in case there’s any confusion about this, the version of the Matthew Shepard act which passed the House says so specifically:

Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution.

And the Senate version is even more expansive in its assurances:

(3) CONSTITUTIONAL PROTECTIONS- Nothing in this Act shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

(4) FREE EXPRESSION- Nothing in this Act shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

Now notice what I just did. I linked directly to both the House and Senate versions of the act so you can read it for yourself. Ever wonder why our opponents won’t do the same when they make these outlandish claims?

But What About Pastors in Sweden, Britain and Canada?
Anti-gay opponents often bring up examples from other countries, claiming that what can happen over there can happen here. Focus On the Family has a so-called “Facts Sheet” which claims (PDF: 44KB/2 pages):

In Sweden, Canada and Great Britain, “hate crimes” laws have been used to prosecute Christians speaking their disapproval of homosexual behavior, posing a serious threat to religious liberty and free speech.

The Family Research Council adds:

Don’t believe it? Just Just ask Pastor Ake Green who was charged and sentenced on June 29, 2004 to one month in jail for showing “disrespect” against homosexuals because of a grace and truth filled sermon delivered in Borgholm, Sweden on July 20, 2003 . Thanks to the efforts of our friends at ADF, that sentence was overturned on appeal, but you can see what a chilling effect that hate crimes laws would have on the freedom of speech and religion.

But Sweden’s example simply doesn’t apply here. Sweden has a hate speech law that goes back to 1948, when it was originally written in response to the Holocaust. Laws which limit hate speech are quite common in many European countries. But that’s because their constitutions allow such laws to exist. Ours doesn’t. Swedish journalist Tor Billgren, who writes the blog Antigayretorik, reminds us that no preacher has been fined or jailed for quoting the Bible:

Pastor Åke Green was sentenced to 1 month imprisonment by the district court, but was acquitted by the court of appeal and the supreme court. He wasn’t jailed. There’s another case as well: Leif Liljeström, a Christian (not a preacher) who owned a discussion forum on the web. He was sentenced to 1 month for things another person wrote on the forum (according to the Swedish law the owner of the forum is responsible). However, this wasn’t quotes from the Bible, but extreme hate speech. This case will be dealt with by the Supreme Court. He hasn’t been jailed.

Britain is often cited as another example by anti-gay activists. But the U.K. has no written constitution, nor does it have a Bill of Rights like ours which enumerates inviolable rights among its citizenry. (If I remember, that was one of the sore points between us more than two hundred years ago.) Consequently, Britain has a long history of banning all sorts of speech. As recently as 1988, Margaret Thatcher’s government banned the broadcast of all appearances and interviews of members of Sinn Fein and the IRA. (According to the BBC, “instead of hearing Gerry Adams, viewers and listeners would hear an actor’s voice reading a transcript of the Sinn Fein leader’s words.”) You just try to get that past our Constitution here.

Canada also has a hate speech law. Bill C-250 criminalizes certain types of hate speech towards persons of any sexual orientation: homosexuals, bisexuals, or heterosexuals. In other words, it protects everyone equally. But there is a clause which specifically exempts religiously motivated speech. In other words, religious freedom always trumps hate speech in Canada according to this particular law. But again, Canada’s constitution does not prohibit curbs on speech the way the American constitution does.

But What About the “Philadelphia Eleven”?
But some claim that just such a curb on freedom of speech has actually happened here:

House Majority Leader Steny Hoyer claims the legislation “does not affect free speech or punish beliefs or thoughts. It only seeks to punish violent acts.”  But Andrea Lafferty, executive director of the Traditional Values Coalition, says Hoyer is ignoring the case of eleven Christians in Philadelphia who were charged with hate crimes for sharing Scripture verses at a homosexual pride rally.

“Ask the Philadelphia 11. We know what these supposed ‘hate crime’ laws are meant to do. In Philadelphia, Christians were arrested and jailed based on hate crime law,” she points out. “So we know that what the other side is saying — that it will not affect pastors or youth pastors or Christians — we know that is not true.”

Philadelphia organizers, participants, and police were willing to tolerate the signs and taunts from a group of Repent America protesters when they remained at the edge of the event’s grounds. But then those protesters pushed their way onto the festival grounds to try to forcibly disrupt the event, they were surrounded by Outfest supporters armed with pink whistles and eight-foot-tall pink-colored boards mounted on sticks.

Repent America, who didn’t have a permit for their gathering, was trying to disrupt an OutFest rally which did have a valid permit. So police were called, and they instructed the demonstrators to go back out to the the edge of the Outfest area. The demonstrators ignored three separate orders to move. When they were told by police they would be arrested if they refused to move, they sat down, forcing the police to arrest them.

Prosecutors charged the protesters with violating several laws including the state’s hate crime law. But the court dismissed those charges, calling them an infringement on the protester’s First Amendment rights.That’s right. Just like with with the Klan and the neo-Nazis, Repent America’s actions were protected by the First Amendment.

This may be a case of overzealous prosecutors misapplying the law. But that doesn’t mean the law itself is flawed. We’ve had cases where overzealous prosecutors have pinned far worse charges on innocent people. Some have even ended up on death row for wrongful murder convictions. The answer to that problem isn’t the elimination of laws against murder, but to ensure that everyone has a speedy and fair trial — which is another of our cherished constitutionally protected rights.

And in this particular case, the problem wasn’t with the police who removed Repent America from OutFest; it was with the prosecutor’s decision to charge them under the state’s hate crimes law. In fact, when Repent America tried to sue the city of Philadelphia for wrongful arrest, that court ruled that the police acted properly. It was Repent America’s disruptive actions which led to their arrests, not the content of their speech.

Those who claim that the proposed hate crimes bill is a danger to free speech or religious freedoms need to not only dust off their copy of the Bill of Rights, but also look around at what a lot of people are already getting by with under the current hate crime law. Even if Repent America, Focus On the Family, or the American Family Association were to wind up in the same classy company of the KKK and neo-Nazis as Matt Barber fears, they will still be free to say whatever they damn well please.

See also:
Lying About The Hate Crime Bill, #2: “A Danger To Religious Freedom”
Lying About The Hate Crime Bill, #1: “The Thirty Sexual Orientations”

Rick Warren Exploits Paranoia To Defend Prop 8

Jim Burroway

December 16th, 2008

Rick Warren — you remember him. He has all of those “many gay friends” — said this about why he supported California’s Prop 8:

…There were all kinds of threats that if that [Prop 8] did not pass, then any pastor could be considered doing hate speech if he shared his views that he didn’t think homosexuality was the most natural way for relationships. And that would be hate speech. To me, we should have freedom of speech. And you should be able to have freedom of speech to make your position, and I should be able to have freedom of speech to make my position. And can we do this in a civil way?

This is unadulterated nonsense. First, a civil marriage law does nothing to impinge on what a pastor can preach. Divorce is very common, but you can waive all the divorce decrees and new marriage licences in front of a Catholic priest’s face and he’s not going to marry anyone unless the Vatican has granted an annulment. And he’ll be happy to explain it to the couple in his office, at the pulpit, on the Internet, or anywhere else. It’s not hate speech.

And what if it were considered hate speech? No problem there either because in the United States, hate speech is not against the law. And it can never be against the law as long as the First Amendment is in effect. We already have laws against discrimination based on race and religion, but even with those laws, Rick Warren can be as anti-Semitic and racist as he wants to be. He’s neither of those things, but if he wanted to be, he could. And the law would protect him.

I suspect Rev. Warren knows that. But he’d rather stoke the paranoia of his fellow evangelicals than actually discuss the issue “in a civil way.”

Today In History: ONE Magazine versus the U.S. Post Office

Jim Burroway

January 13th, 2008

Today marks a very important milestone in LGBT history. Fifty years ago today, on January 13, 1958, the U.S. Supreme Court delivered its first ever pro-gay ruling in ONE Inc. v. Olesen, a landmark decision that allowed a magazine for gays and lesbians to be sent through the U.S. mail.

ONE, Inc. was founded by several members of the Los Angeles Mattachine Society who felt that a strong nationwide voice for education and advocacy was desperately needed. According to ONE, Inc.’s articles of incorporation, “…the specific and primary purposes … are to publish and disseminate a magazine dealing primarily with homosexuality from the scientific, historical and critical point of view, and to aid in the social integration and rehabilitation of the sexual variant.” But this wasn’t going to be just any magazine. Under the inaugural editorial leadership of Martin Block, Dale Jennings, Don Slater and Donald Webster Cory, ONE magazine was to be a first class product, a dramatic departure from the typewritten and mimeographed sheets which were more common at the time.

ONE, January 1953So when ONE debuted in January 1953, it sported a very sophisticated look, with bold graphics and professional typset and design. ONE’s slick offering quickly caught the attention gays and lesbians across the country, and circulation jumped to nearly 2,000 within a few months — with most subscribers paying extra to have their magazine delivered in an unmarked wrapper. Even still, ONE’s survival depended on the day jobs of its few contributors who typically worked under multiple pen names to make the staff appear larger to readers — and sometimes to protect their own identities.

By today’s standards, an early edition of ONE might look rather tame. There were no racy pictures, and even its fiction was mostly limited to depictions of longing and desire. There was rarely any evidence of physical contact in its pages. But what the magazine lacked in raciness, it made up for in audacity. ONE’s editorial tone was bold and unapologetic, covering politics, civil rights, legal issues, police harassment (which was particularly harsh in ONE’s home city of Los Angeles), employment and familial problems, and other social, philosophical, historical and psychological topics. And most importantly, ONE quickly became a voice for thousands of silent gays and lesbians across the U.S., many of whom wrote letters of deep gratitude to ONE’s editors. But in a sign of those times, all letters to the editor were published anonymously — from “m” in Winston-Salem, North Carolina or from “f” in Beaumont, Texas.

ONE filled a very critical role for gays and lesbians during a very dark time. ONE’s debut coincided with a major push to rid the U.S. civil service of homosexuals. President Dwight D. Eisenhower would sign Executive Order 10450 in April of that year, which barred gays and lesbians from federal employment with its “sexual perversion” clause. This followed a highly-publicized purge of more than 400 gays and lesbians from the civil service some three years earlier. Homosexuality was criminalized in every states, and it was stigmatized as a mental illness by the psychiatric profession. Gays were not only denounced as security risks, but risks to the very moral fiber of the nation. Homosexuals were treated as subversives, on par with the “Communist menace” on which leading politicians were staking their career. The FBI had launched a major crackdown on homosexuality across the U.S., with many gays and lesbians losing their jobs for merely receiving homophile publications in the mail. And vice squads everywhere were setting up entrapment stings in bars and other meeting places, where a simple proposition or touch could lead to arrest and public exposure.

ONE, August 1953So when ONE caught the eye of the FBI, they immediately launched an investigation to try to shut it down. They went so far as to write to the employers of ONE’s editors and writers (they all depended on their day jobs for income), saying that their employees were “deviants” and “security risks.” Fortunately, no one lost their jobs, the FBI decided it wasn’t worth their time, and ONE continued publishing.

The job of shutting down ONE then fell to the U.S. Post Office. Since its inception, Los Angeles postal authorities vetted each issue before deciding whether it was legal to ship under the Post Office’s stringent anti-obscenity standards. And since homosexuality was illegal in most states, ONE had the added problem of possibly being guilty of promoting criminal activity. The Post Office finally acted in August 1953, holding up that month’s issue for three weeks while deciding if it violated federal laws. (Ironically, the cover story for that issue was on “homosexual marriage,” an issue that is still contentious more than fifty years later.) Finally, officials in Washington decided the magazine didn’t violate federal laws and ordered the LA Post Office to release it for shipment.

ONE, October 1953ONE, true to its aggressive stance, reacted defiantly to that move in its October issue by proclaiming in an editorial printed on the cover, “ONE is not grateful”:

Your August issue is late because the postal authorities in Washington and Los Angeles had it under a microscope. They studied it carefully from the 2nd until the 18th of September and finally decided that there was nothing obscene, lewd or lascivious in it. They allowed it to continue on its way. We have been found suitable for mailing.

…But one point must be made very clear. ONE is not grateful. ONE thanks no one for this reluctant acceptance. It is true that this decision is historic. Never before has a governmental agency of this size admitted that homosexuals not only have legal rights but might have respectable motives as well. The admission is welcome, but it’s tardy and far from enough. As we sit around quietly like nice little ladies and gentlemen gradually educating the public and the courts at our leisure, thousands of homosexuals are being unjustly arrested, blackmailed, fined, jailed, intimidated, beaten, ruined and murdered. ONE’s victory might seem big and historic as you read of it in the comfort of your home (locked in the bathroom? hidden under a stack of other magazines? sealed first class?). But the deviate hearing of our late August issue through jail bars will not be overly impressed.

ONE’s editors knew they weren’t in the clear, but they didn’t know where their next threat would come from. That threat, it appears, may have come from the Senate Foreign Relations Committee Chairman Alexander Wiley (R-WI), who wrote a letter of protest to U.S. Postmaster General Aurthur Summerfield. Having run across the March 1954 issue (the cover story was “The Importance of Being Different”) Sen. Wiley registered a “vigorous protest against the use of the United States mails to transmit a so-called ‘magazine’ devoted to the advancement of sexual perversions.” Allowing a homosexual magazine to operate, he wrote, “(a) runs utterly contrary to every moral principle, (b) runs utterly contrary to our intentions to safeguard our nation’s youngsters, (c) likewise, it is the very opposite of the entire purpose of our governmental security program…”

ONE, October 1954The particulars of this action wasn’t known by ONE’s editors. But as defiant as ONE was in the October 1953 issue, they knew that the threat of closure due to censorship still loomed large — that is, if finances and distribution problems didn’t get to them first. Financial pressures forced them to skip the August and September 1954 issues and they had to extend everyone’s subscriptions by two months. To try to avoid future legal problems, ONE’s editors asked Eric Julber, their young straight lawyer fresh out of law school, to write a set of rules for the staff to follow in the hopes of staying out of trouble. When readers began to complain that ONE was too tame, the editors asked Julber to print his rules in the returning October 1954 issue with a cover declaring, “You Can’t Print It!” Those rules prohibited:

(1) Lonely hearts ads, seeking pen pals or meetings.

(2) “Cheesecake” art or photos. To readers who ask, “But how about all the girlie magazines?” I can only reply that in our society, visual stimulation of man by woman is tolerated to a far greater extent than attempted visual stimulation of man by man, for what is in law a criminal purpose.

(3) Descriptions of sexual acts, or the preliminaries thereto. Again here, what is permissible in heterosexual literature is not permissible in ONE’s context.

(4) Descriptions of experiences which become too explicit. I.e., permissible: “John was my friend for a year.” Not permissible: “That night we made mad love.”

(5) Descriptions of homosexuality as a practice which the author encourages in others, or waxes too enthusiastic about.

(6) Fiction with too much physical contact between the characters. I.e., characters cannot rub knees, feel thighs, hold hands, soap backs, or undress before one another. (All examples taken from recent contributions).

Pajamas AdJulber also insisted that he review each issue before it was sent to the publisher. But all this failed to keep ONE out of trouble — maybe because Julber didn’t strictly enforce his own rules, allowing the October 1954 issue to be arguably the raciest to date. The very same issue which ran Julber’s rules also featured a fictional short story called “Sappho Remembered,” in which two young lovers touched four times, declared their love for each other, and the story had a happy ending. Another feature, a poem, made light of the arrest of several British public figures (including actor John Gielgfud) on “morals” charges (“Lord Samuel is a legal peer / (While real are Monty’s curls!) / Some peers are seers but some are queers / And some boys WILL be girls.”). And there were two ads — one for a Swedish magazine (which, postal officials charged, meant that ONE was advertising “obscene materials”) and another for men’s pajamas and intimate wear.

That was enough for the Los Angeles Post Office to seize that issue — the one with “You Can’t Print It!” on the cover — and charge the editors with violating the 1873 Comstock Act, which prohibited sending “obscene, lewd, and/or lascivious” material through the mail.

The editors were eager to sue the Post Office, but ONE’s financial condition was so perilous that they held off for nearly a year. Julber took the case for free and looked for help from the ACLU, but they wouldn’t touch it — the ACLU was still defending anti-sodomy laws at the time. Finally it was up to young Julber alone to argue ONE’s case in federal district court that the magazine was educational and not pornographic. It didn’t go well. The judge ruled for the Post Office in March 1956, and the 9th Circuit Court of Appeals agreed in February 1957, calling ONE “morally depraving and debasing” and saying that the magazine “has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of persons reading it.”

ONE then took its case to the U.S. Supreme Court. To everyone’s surprise, the Court agreed to take the case, its first ever dealing with homosexuality. Even more surprising, the Supreme Court issued its short, one-sentence decision on January 13, 1958 without hearing oral arguments. That decision not only overturned the two lower courts, but the Court expanded the First Amendment’s free speech and press freedoms by effectively limiting the power of the Comstock Act to interfere with the written word. As a result, lesbian and gay publications could be mailed without legal repercussions, though many continued to experience harassment from the Post Office and U.S. Customs.

ONE, February 1958Editor Don Slater celebrated the ONE decision in the February 1958 issue:

By winning this decision ONE Magazine has made not only history but law as well and has changed the future for all U. S. homosexuals. Never before have homosexuals claimed their right as citizens. Not even the Berdache, nor the Greeks, nor the Napoleonic Code, nor Wolfenden “recommendations,” nor The American Law Institute “recommendations” have managed to mean so much to so many. ONE Magazine no longer asks for the right to be heard; it now exercises that right. It further requires that homosexuals be treated as a proper part of society free to discuss and educate and propagandize their beliefs with no greater limitations than for any other group.

…The New York Times has this to say about the decision: “The court today reversed a post office ban on a magazine, One, which deals with homosexuality. The petition for review filed by the lawyer, Eric Julber of Los Angeles, had apparently raised only one question: was the magazine ‘obscene’ within the statute banning importation of obscene matter? The court’s order appeared to answer: No.”

True to its educational mission, ONE, Inc founded the One Institute as an educational arm in 1956. In 1958, the ONE Institute Quarterly became the first academic journal on gay and lesbian studies in America. ONE magazine’s last issue was in 1967 following a very long and acrimonious split in ONE, Inc.’s governing board. Today, the ONE National Gay and Lesbian Archives houses the world’s largest research library on Gay, Lesbian, Bisexual,and Transgender history near the main campus of the University of Southern California in Los Angeles.

Sources: Courting Justice: Gay Men and Lesbians v. the Supreme Court, by Joyce Murdoch & Deb Price.

ONE magazine, October 1953, October 1954, February, 1958.

Phelps Liable for $10.9 Million

Timothy Kincaid

October 31st, 2007

phelps.jpgRueters is reporting that a jury ordered Westboro Baptist Church to pay the family of a serviceman whose burial service was picketed by Phelp’s church.

The jury in federal court determined that the Westboro Baptist Church based in Topeka, and three of its principals had invaded the privacy of the dead man’s family and inflicted emotional distress when they protested at his funeral last year.

This bothers me in a few ways.

First, I am in favor of protected speech, even vile disgusting speech like that of Fred Phelps and his family. While there is no question that this celebration of the poor kid’s death was disturbing, I don’t like the precedent this sets. Perhaps as I hear more about the details – such as whether the protest was on public property or at a private funeral home – I may reconsider. But I recognize that my speech could be unwelcome and distressing to anti-gay activists or devoutly religious bigots.

Second, I can’t help but wonder if the outcome would have been different had Westboro been picketing a gay person’s death. I somehow suspect that the family of the serviceman was held by the jury to be more deserving. Perhaps I’m cynical, but I doubt they would have given $2.9 million to a grieving same-sex spouse.

UPDATE: The final award was much more:

The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for privacy loss and $2 million for distress.

Exodus, Meet The First Amendment

Exodus needs a lesson in basic high-school level Civics.

Jim Burroway

January 16th, 2007

Update: Mark, from Slapped Upsite The Head, left a comment to correct my feeble understanding of the intricacies of Canadian law. Meanwhile, Tor Billgren updates me via E-mail on the origin of Sweden’s hate speech law. Corrections and additions are noted below.

Many anti-gay organizations oppose extending hate crime laws to cover sexual orientation, claiming that to do so will take away their religious freedoms. Exodus added their voices to the chorus just yesterday by issuing this press release:

Today, as the nation celebrates Religious Freedom Day, Exodus International, the world’s largest ministry to those desiring freedom from unwanted homosexuality, joins pro-family groups around the nation in urging Congress to stop a hate crimes bill that would penalize those with faith-based beliefs about homosexuality.

Alan Chambers, President of Exodus International, said, “Today, we celebrate a sacred right to freely practice our individual religious beliefs, and at the same time, Congress is debating legislation that could eventually destroy these freedoms. Hate crimes legislation does not prosecute illegal actions that harm others, it prosecutes beliefs about homosexuality that for many Americans, is consistent with their faith.”

This is utter nonsense. Nothing in the hate crime legislation prosecutes beliefs of any sort. Anyone can believe whatever they want to about sexual orientation, and anyone can say anything they want to about their beliefs.

Alan Chambers is displaying an abysmal ignorance about one of the most basic tenants of our constitution. While we already have hate crime legislation in place for categories of gender, race and religion, none of it even remotely affects speech or beliefs. And the reason is simple: our First Amendment protects our right to say pretty much anything we want, no matter how ugly, hateful, or factually wrong we may be.

That’s right. The Nazis are free to march in predominantly Jewish Skokie, IL (with the ACLU’s help, I might add) because of the First Amendment, and the Klan is free to spew hatred against racial minorities in Cleveland. You can advocate genocide, you can defend Al-Qaida, and you hurl any racist epithet you want. It won’t help your comedy career much, but you can’t be fined or jailed for it. As long as you’re not shouting fire! in a crowded theater or threatening to kill the president, you can say pretty much anything you want.

The courts and legislators at every level have been exceptionally diligent in protecting everyone’s right to say anything, no matter how stupid, hateful, or disgusting that speech may be judged by others. Hate crime legislation in the U.S. simply cannot criminalize speech. Our constitution forbids it right there, in our cherished First Amendment, something that Alan Chambers really ought to read sometime:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

He also ought to remember that he lives in Florida, not Canada, Australia, Sweden, or Britain:

Canada, Australia, Sweden and other European nations have used hate crimes law to punish, even imprison preachers for speaking out against protected persons. Preachers have been fined or jailed in Canada and Sweden for quoting passages from the Bible about homosexuality. In England, a Christian was thrown in jail for passing out pamphlets with Bible verses condemning homosexual activity. In Philadelphia, eleven Christians were jailed for sharing a message from the Bible to a crowd of people attending a public pro-gay event.

Canada, Australia, Sweden and other European nations don’t have anything like our First Amendment. We’re quite exceptional in our absolute insistence on our infettered freedoms to say whatever we want. What happens elsewhere does not automatically happen here, nor can it. Our courts and constitution simply won’t allow it. If our laws can’t stop the Nazis and the Klan from marching, they won’t stop Exodus from denigrating gays and lesbians. Or exaggerating and lying about what has happened elsewhere.

Canada’s Bill C-250 criminalizes certain types of hate speech towards persons of any sexual orientation: homosexuals, bisexuals, or bisexuals. In other words, it protects everyone equally. But there is a clause, known in Canadian law as a “not withstanding” clause, which specifically exempts religiously motivated speech. In other words, religious freedom always trumps hate speech in Canada according to this particular law.

Sweden has a similar law that protects people from “unfavorable speech,” and like the Canadian law, it protects everyone equally: homosexuals, bisexuals, and heterosexuals. Swedish journalist Tor Billgren, who writes the blog Antigayretorik, was angered by Chambers’ press release. Defending his beloved Sweden, he e-mailed me to say that while they have hate speech laws there, no preacher has been fined or jailed for quoting the Bible:

Pastor Åke Green was sentenced to 1 month inprisonment by the district court, but was aquitted by the court of appeal and the supreme court. He wasn’t jailed. There’s another case as well: Leif Liljeström, a christian (not a preacher) who owned a discussion forum on the web. He was sentenced to 1 month for things another person wrote on the forum (according to the swedish law the owner of the forum is responsible). However, this wasn’t quotes from the Bible, but extreme hate speach. This case will be dealt with by the supreme court. He hasn’t been jailed.

(Update) Sweden’s hate speech law goes back to 1948, when it was origionally written in response to the Holocaust. Laws like these limiting hate speech are quite common in many European countries. But that’s because their constitutions allow such laws to exist. Ours doesn’t.

Britain is a separate case altogether. The U.K. has no written constitution, nor does it have anything like our Bill of Rights. If I remember, that was one of the sore points between us more than two hundred years ago. While we may think of Britain as a free country, there is, in fact, no constitutional protections of free speech whatsoever. Consequently, Britain has a long history of banning all sorts of speech. As recently as 1988, Margaret Thatcher’s government banned the broadcast of all appearances and interviews of members of Sinn Fein and the IRA. (According to the BBC, “instead of hearing Gerry Adams, viewers and listeners would hear an actor’s voice reading a transcript of the Sinn Fein leader’s words.”). You just try to get that past our Constitution here.

And as proof further that our First Amendment protects everyone, each of the eleven Christians from Repent America who were jailed in Philadelphia “for sharing a message from the Bible” — messages that were lovingly shouted through bullhorns — saw all of their charges dropped. Why? It’s simple. As it was with the Klan and the neo-Nazi’s, their actions were protected by the First Amendment.

To defend our freedoms, sometimes some pretty disagreeable people wind up paying a price. That is unfortunate, but as we all know, freedoms aren’t free. Freedom of speech is only meaningful when that speech is offensive, and Repent America, Fred Phelps, the Klan and Nazi’s have all advanced the cause of free speech for the rest of us by being thoroughly offensive and disgusting. I guess we have to give them that. Exodus can thank them as well.

The hate crime laws that Congress in considering doesn’t address speech for one simple reason: It can’t. For Exodus to claim otherwise shows an abysmal ignorance of the law — or dishonesty. It’s one of the other. Take your pick.