Professor outlines free-speech aspects of gay-lesbian rights

Friday, October 15, 1999

NASHVILLE, Tenn. — The First Amendment is, and has been, an excellent tool in the fight to secure and defend the civil rights of gays and lesbians. That was the message of a lecture sponsored by the Vanderbilt University Lambda Association on Oct. 10.

The talk was given by Paul Siegel, a communications professor at Gallaudet University in Washington D.C., and a veteran advocate for gay and lesbian rights.

“This is a lecture I've been giving around the country for over 20 years now,” Siegel said. The lecture, “Gay and Lesbian Rights as a Free-Speech Issue,” kicked off the Lambda Association's National Coming Out Project 99.

Siegel focused his talk on federal landmark case law and history involved in the crusade of gay and lesbian civil rights. Siegel, who has written and spoken extensively on the subject, outlined important points and First Amendment aspects of a number of cases — those that impeded as well as those that advanced the gay-rights cause.

In one 1986 case, Bowers v. Hardwick, the Supreme Court found that state anti-sodomy laws were constitutional and not in conflict with the privacy rights of homosexuals. Another landmark Supreme Court case, Brandenburg v. Ohio, established that speech, even political speech, is not protected when it is “likely to produce imminent lawless action.” This ruling, applied in conjunction with local anti-sodomy ordinances, has been used as a legal tool to suppress gay and lesbian activities and organizations.

According to Siegel, rulings like these have made it difficult for gays and lesbians to effectively use the bill of rights to litigate for their civil rights. Despite these setbacks, though, he still believes that the First Amendment is the best weapon left to gays and lesbians in the pursuit of equal rights.

Siegel cited Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation (1976) and Gay Activists Alliance v. Washington Metro (1979) as examples of cases in which homosexual litigants were able to win using First Amendment arguments. In both instances pro-gay and lesbian rights groups were held to be protected by First Amendment free-expression principles in publicly advancing their messages.

“I tell people, 'You are most likely to win a case where the First Amendment is on your side.' … free speech does work,” said Siegel. “The right to privacy doesn't work because the courts have told us that it doesn't, and the structure of 14th Amendment law (equal protection under the law) … is such that gays fall into the lowest tier of protection provided by the court. The structure of First Amendment law makes it clear that it is there to protect those we (as a society) don't like.”

Siegel was also careful to caution his audience, which was made up mainly of Vanderbilt students, that gays and lesbians should avoid advocating limits on the free expression of others, such as occurs in the increasingly popular campus speech codes.

Such limits “are a lazy solution to the problem of distasteful speech,” Siegel said. “Powerless people should be careful what they wish for. We should welcome the chance to debate.”