OutRight

The First Amendment to the Rescue
by Dale Carpenter

"Congress shall make no law … abridging the freedom of speech." Straight from the First Amendment, those may be the most important words in the English language for gay Americans. It might be a good idea for some yahoo politicians around the country to read them. I have in mind two politicos in particular, the governor of South Dakota and the mayor of Oklahoma City, who’d apparently prefer a First Amendment that doesn’t apply to homosexuals. They’re both fully prepared to sacrifice sound public policy rather than let gays enjoy free speech.

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 –including the freedoms of speech and association –have protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, bars, newspapers, radio programs, television shows –all these would be swept away in the absence of a strong First Amendment.

Evenhanded and detached from passions to an unusual degree for a jurisprudence, the First Amendment sheltered gays even when most of the country thought we were not just immoral, but also sick and dangerous. In an era of almost unrelenting hostility, law professor William Eskridge has written, the First Amendment supplied "an appealing normative argument in both the political and judicial arenas." The shelter afforded by the First Amendment allowed gays to organize for the purpose of accumulating and applying political power, a precondition for the effective exercise of other important liberties.

In its protection of the rights of those accused of crime, the Fourteenth Amendment’s Due Process Clause is the First Amendment’s only serious constitutional competitor for pride of place in assisting gay-equality advocates. The criminal procedure protections it guarantees have been powerful weapons against state prosecutions of gay people for a variety of criminal offenses, including the violation of sodomy laws.

Yet even these protections did not significantly reduce arrest rates of gay people for consensual sexual crimes until gay political power forced police departments to consider our interests. The development of gay political power, however, has depended in the first instance on the liberty of gays to organize in groups free of state regulation impinging on their internal affairs, including the content of their message and the composition of their membership.

This freedom, in turn, depends on a strong and principled First Amendment committed to protecting unpopular opinions and speech by individuals or groups the state disdains. Government generally cannot discriminate against a person or group based on the content of their message.

Somebody better tell that to South Dakota. As do many states, South Dakota has an adopt-a-highway program that allows private groups to clean up a stretch of road in exchange for a public sign touting the group’s contribution to beautification. Hundreds of groups participate.

The state rejected an application from the Sioux City Gay and Lesbian Coalition, however, saying the state does not allow official roadside signs for "advocacy groups." That is news to groups like the College Republicans, the Yankton County Democrats, the Wheat Growers Association, and the Animal Rights Advocates of South Dakota who have adopted stretches of highway and had their groups’ names enshrined on the state’s roads. It’s not that the state forbids participation by advocacy groups; the state forbids participation by advocacy groups whose message it does not like. This the First Amendment, with its requirement of government content-neutrality, does not permit.

Faced with a likely lawsuit based on the First Amendment, Gov. William Janklow at first threatened to cancel the entire program rather than let the gay coalition participate. In the end, he "compromised" by allowing the gay coalition to participate but ordering the state to take down every group’s roadside sign. The loss of this public recognition will eliminate a significant incentive for groups to get involved.

Another chop-off-your-nose-to-spite-your-face move recently* came from Oklahoma City. There, the city took down banners on city utility poles heralding the annual gay pride parade, sponsored by the Cimarron Alliance Foundation. The controversial banners displayed a rainbow flame over the name of the group. The city said the banners were inappropriate because of their (here’s that word again) "advocacy." Yet the city had no problem allowing other religious and social advocacy groups, like an antidrug organization, to pay to have their own banners placed on city utility poles.

Under threat of a lawsuit charging a violation of the First Amendment, the city relented and allowed the gay pride banners to reappear this year. Mayor Kirk Humphreys just couldn’t understand why. "We are not talking about free speech here," he opined. "We are talking about paid advertising." He said the city was free to pick and choose the messages that appear on public property, just like private companies can choose the messages that appear on their property.

He is doubly wrong. First, advertising is a form of free speech. Second, when it comes to rights guaranteed by the constitution, government is emphatically not like private companies. The Constitution is a constraint on the state, not on private groups.

Now the city proposes to ban almost all advocacy on city property rather than let gay groups’ messages appear in the future. Whether the new policy will stand up in court is a large question. What’s certain is that, once again, the First Amendment has frustrated an attempt to single us out for silencing.

* Editor’s note: Dale Carpenter is on vacation. This column was written September 6, 2001.