Sex/Gender Outsiders, Hate Speech, and Freedom of Expression: Can They Say That about Me?

By Martha T. Zingo | Go to book overview

Contrary to what the majority in Rowland or the district court in Shahar would prefer, sexuality stays neither in the bedroom nor hidden. Heterosexuals visibly "flaunt" their affectional orientation/preference at work, in public, and in the media. It is so much a part of the dominant culture that, according to José Gomez, "[t]he public expression of heterosexual personhood is . . . favored socially and legally by tacitly being seen neither as sexual nor as speech. This occurs because it is dominant in both arenas." 159 Because heterosexuality is so prevalent within society, the speech and conduct of sex/gender outsiders is frequently characterized as extreme and is pushed outside the boundaries of constitutional protection. In numerous cases concerning the First Amendment rights of sex/gender outsiders, 160 the courts have adopted the term "flaunting" to deny constitutional protection to a wide range of expressive conduct and gestures that the courts have ruled to be within the scope of the First Amendment when engaged in by heterosexuals. By this dual standard, the judiciary virtually eclipses the speech of sex/gender outsiders and marks it as subordinate to that of heterosexuals. The social, political, and legal silencing and exclusion of lesbians, gay men, bisexuals, and transgenderists thus persists.

As Mohr accurately states, "it is the recriminations that descend upon gays who are publicly gay that effectively deny them first amendment rights." 161 This observation is true with regard to all sex/gender outsiders. Only the official elimination of the multitudinous conditions which perpetuate the existence of the "closet" will make possible a meaningful claim of First Amendment rights for lesbians, gay men, bisexuals, and transgenderists. But sex/gender outsiders can ill afford to try and obtain these rights at the expense of suppressing the First Amendment speech of others. Despite the fact that the judiciary generally appears to be on opposite sides from sex/gender outsiders on free speech issues which arise in non-traditional settings, it is hazardous to attempt to beat the dominant culture at its own game. By supporting laws that censor speech, even if they are directed against one's enemies with the intention of stopping their hateful words and messages, sex/gender outsiders leave themselves open to having those laws applied to their own words, expressions, and images. As a distinct minority within society, Karst warns, sex/gender outsiders cannot afford to forget a corollary to Murphy's Law: "Suppressions that can happen will happen." 162


NOTES
1
See: Emerson ( 1970) at 6-7; Gressman ( 1990) at 390-391; Richards ( 1974) at 74; Scanlon ( 1972) at 213-214; Palko at 326-327; Procunier at 427.

-42-

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Sex/Gender Outsiders, Hate Speech, and Freedom of Expression: Can They Say That about Me?
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Acknowledgments xi
  • Chapter 1 - Social and Legal Condition of "Outsiders" 1
  • Notes 7
  • Chapter 2 - Free Speech and the Hate Speech Controversy 17
  • Notes 42
  • Chapter 3 - Equality Jurisprudence and Suspect Classifications 51
  • Notes 82
  • Chapter 4 - Speech, Hate, and (non-) Discrimination 101
  • Notes 127
  • Chapter 5 - Judicial Response to Hate Regulations 139
  • Notes 168
  • Chapter 6 - Conclusion 177
  • Notes 181
  • Bibliography 183
  • Index 211
  • About the Author *
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