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More on English Arrest for Distributing an Anti-Homosexuality Pamphlet

(the incident I discussed in the Suppression of Dissent post late last week): This purports to be the leaflet that led to the arrest; I have no reason to question that assertion, and I will rest the remainder of the post on that assertion, though please do let me know if the assertion is mistaken.

I certainly don't agree with the moral views expressed in the leaflet, but my sense is that this is probably about as calm, polite, and reasoned a way of expressing those views as is possible. Of course many people would still find it offensive, because of the ideas that the speech expresses; but preventing such speech really does requiring suppressing the ideas, rather than just insisting that they be expressed in less incendiary ways. If the distribution of such speech is illegal in England, then English law has indeed gone a long way to undermining the ability to discuss such moral matters. (I should note that the place of distribution, a place where many listeners would be expected to be quite offended, doesn't strike me as changing this result: The ability to express one's views that certain behavior is wrong must include the ability to express those views to people whose behavior one is trying to change, at least subject to rules that give each individual recipient the power to stop further individualized speech to them without interfering with speech to others.)

Why does this matter? Well, I think that generally speaking people ought to be free to express their views even in harsh, insulting ways. I think the "God Hates Fags" picketers' speech shouldn't be suppressed because of its content, morally repugnant as I find both its form and its content. (Whether content-neutral restrictions on picketing in front of funerals are constitutional is a separate matter, which I discuss here.)

Nonetheless, there's a case to be made that it's possible to try to suppress incendiary language -- such as vulgarities, epithets, and the like -- while still allowing people to express whatever ideas they want. I tend to agree that such rules generally can't be set up in ways that are legally administrable, and that coming up with such rules, especially ones enforced through the criminal law, may lead to the restriction of ideas and not just the form in which they're expressed. (Compare Justice Harlan's view in Cohen v. California with Justice Stevens's view in the FCC v. Pacifica Foundation plurality.) Yet it's conceivable that such a rule might be acceptable (and necessary) in at least certain contexts; at the very least, it can't be as easily condemned as rules that really do try to suppress speech because of the ideas it expresses, rather than the form in which it's expressed.

But here English law can't use this defense; nor can it use another occasional defense of bans on "extremist speech," which is that little is lost to public debate from suppressing the speech of the violent fringe (again, I don't accept this defense myself, but it's one that sometimes is made). Here English law is being used to suppress speech because of its ideas, and not because it's put in a needlessly rude or vituperative way; and it's being used to suppress speech that expresses a longstanding aspect of an important school of moral thought (even if we think that aspect is morally mistaken).

That makes the restriction, I think, particularly dangerous and particularly noteworthy. I would oppose such criminal laws even if they were applied to cruder expression, and to expression of less traditionally mainstream views. But even those who are open to restrictions on form that supposedly don't interfere with the communication of ideas, or to restrictions on extremist views that supposedly don't interfere with important discourse within a broad mainstream of views, should be troubled by what's going on in this case.

Thanks to John the Methodist (Locusts & Honey) for the pointer.

Related Posts (on one page):

  1. English Charges Against Anti-Homosexuality Leafletter Dropped:
  2. More on English Arrest for Distributing an Anti-Homosexuality Pamphlet
  3. Suppression of Dissent::
Tracy Johnson (www):
This just reminded me, "V is for Vendetta" is making the pay-per-view rounds. A treatise on the of the effects of proscribed speech if I ever saw one.

And there's "C for Cookie" http://video.google.com/videoplay?docid=7249104291486736993
9.11.2006 4:03pm
Chimaxx (mail):
I agree completely, Eugene.

I find the ideas in the pamphlet offensive. Had I attended the event at which they were distributed, I would be offended, and I might say something rude to the person trying to hand it to me.

But the arrest and banning of their distribution is far more offensive and dangerous. Banning thoughts and ideas is always a bad idea. Crowding them out with other, better ideas always a better solution.

A few weeks ago, in Chicago, and anti-gay demonstrator started haranguing on a megaphone in Millennium Park immediately after the Chicago Gay Men's Chorus finished their set, which closed a long weekend of Sondheim in the Park. The things he was saying were far more incendiary and direct than what's in that pamphlet. At first there was a burst of anger ("Shame, shame, shame..." shouted the audience). Then the chorus started up with an unplanned and unannounced encore--a version of "I'm Still Here" with altrered lyrics that they had done a couple of weeks earlier for their own concert but had cut from their set for being too political and too gay-specific for the setting--and drowned him out in song. While the chorus sang, park authorities took away his microphone. He was still free to protest and to say what he was saying, but he was not permitted a powered megaphone in the park. He went on for a while, but the joy in the chorus's unplanned encore had taken a lot of the steam out of his protest. No one was paying him and his small group any attention any longer.

This seems to me to have been a far more appropriate way to deal with this sort of protest.
9.11.2006 4:20pm
TM Lutas (mail) (www):
Having now read the pamphlet, it seems clear that what is under discussion is exactly classic anglicanism, the established church of the UK. I just wonder if TEC et al will have the balls to try to prosecute the Archbishop of Canterbury for his intolerance when US/Canadian episcopalians get bounced from the communion.
9.11.2006 4:40pm
dearieme:
"classic anglicanism, the established church of the UK" - no, no, a thousand times no. Of England alone. And as for this obnoxious business - pure Blair.
9.11.2006 5:09pm
Harvey Mosley (mail):
Wow. I'm amazed that someone could be arrested for that in a supposedly free country. Whatever side of the debate you're on about homosexuality, what happened here is simply chilling.
9.11.2006 5:31pm
TomCS:
Unchill people, and start from the point that English law does not enshrine any right to free speech (one of the better reasons for your ancestors' secession, but Tom Paine drew a fairly broad indictment) but is traditionally strong on public order offences, which is in a sense what the anti-discrimination legislation is an outgrowth from.

IANAL, but I think this goes back to the good old common law: over here you do not have the right to incite people in a way which may create public disorder. So in such circumstances the police will tend to remove the incitor, which will probably require a charge, and leave it to the courts to decide the rights and wrongs later.
9.11.2006 8:57pm
KingOfMyCastle:
TomCS: I'd buy that if that sort of policy was applied evenly, but I seem to remember large scale protests of Muslims in Britain where all types of offensive signs, effigies, etc. were on display. Surely this was a greater threat to public order than someone handing out a leaflet?

That's the problem when government gets involved in any speech restriction. They always play favorites.
9.11.2006 9:05pm
Bruce Wilder (www):
KingOfMyCastle: "...when government gets involved in any speech restriction. They always play favorites."

Yes, they do. And, Professor Volokh is arguing that those who favor tolerance should disarm in the face of bullying and harassing from those who oppose tolerance.

What is this danger that we are to expect from the simple courtesy of having this rude man removed from a place where he is being deliberately offensive?

Is there some immediate danger that people might go to Cardiff Mardi Gras (what kind of Mardi Gras happens in September?) and escape the preaching of an uninvited and self-appointed minister of the gospel? Is this danger to be averted, by having the police fail to intervene, when obnoxiousness threatens public order?

Really, what is the danger apprehended?

That people, who wish to protest, say, the Iraq War at a speech by President Bush will be corralled behind chain link or arrested for wearing slogan on a T-shirt? Sorry, that's done anyway. The right-wing is not offering a pass for leftist protesters. There's no symmetry, here.

Professor Volokh offers a principle, which is only going to be applied to keep alive harassment from the Right. It sounds even-handed, but it's not.

And, let's not pretend that ideas are being suppressed, here. As someone else has pointed out, these ideas are officially espoused by the established Church of England, which is free to preach them from thousands of pulpits at any time.

This is about whether gay people, out for a good time in a supposedly tolerant environment, can be forcibly confronted with these ideas.
9.11.2006 9:45pm
Andy Freeman (mail):
> As someone else has pointed out, these ideas are officially espoused by the established Church of England, which is free to preach them from thousands of pulpits at any time.

Fair enough, but let's make this rule useful.

Where is it legally acceptable to express these sentiments and in what forms?

Does this rule generalize to other issues?
9.11.2006 9:53pm
Bottomfish (mail):
Certainly I agree with Professor Volokh that free speech must be "subject to rules that give each individual recipient the power to stop further individualized speech to them without interfering with speech to others." In the case of Rowan vs US Post Office Dept, that's simple: just give the Postal Service your orders. The speech is highly individualized because it enters your home or mailbox and no one else's. But in a public area like the street or a city park it's not really possible because there's not much individualized speech. Even if the speech isn't directed to you specifically, you hear it anyway.
9.11.2006 10:28pm
Bob from Tenn (mail):
I have a question for the group. Does anyone else see a correlation between the advance of gay rights and the increasing restriction on free speech and freedom of association? It is not too far in the US yet, but some disturbing incidents show a tendency in that direction (to me). E.g., a lawsuit against the Boy Scouts, a lawsuit against military recruiters (both denied), a DC transit board member fired for expressing a religious opinion, Calif court cases giving freedom of speech to high school gay rights groups but shutting down a Christian (anti-gay rights) T-shirt. Seems to be just the beginning of things that are already worse in other countries, starting in Scandinavian countries but now spreading to the UK and Canada (several cases). I believe Cathy Young cited a law symposium after the Mass supreme court case that shows many laws (not just marriage) would be affected by recognizing gays as a protected class. Is anyone else starting the get the feeling that these two positions cannot co-exist?
9.11.2006 11:55pm
Daniel Chapman (mail):
Careful... that post comes AWFULLY close to being bigoted you homophobe.
9.12.2006 12:29am
EricRasmusen (mail) (www):
I am thinking of going on sabbatical to Oxford or the London School of Economics next year. I wonder if I need fear prosecution for my anti-homosexual views and occasional Bible quoting. I wouldn't be handing out leaflets, but would a weblog come under

'threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby', contrary to the Public Order Act 1986

Of course it would come under the letter of the law, but the question is whether the homosexual lobby would go after me and whether the Home Minister would wish to make an example of me. It's interesting that things that might ordinarily protect someone--- being a distinguished academic, using polite language, and so forth-- might end up increasing one's vulnerability, since if the government's desire is to make an example of someone it will want to find someone whose prosecution would make more vulnerable offenders tremble.
9.12.2006 12:35am
Dilan Esper (mail) (www):
Bigoted and homophobic expression is no more defensible when expressed without epithets.

I wish that Professor Volokh could defend the principle of free speech-- which is perfectly defensible here and which I would defend as well-- without implying that a person who "politely" expresses that his religious beliefs give him the right to impose his bigoted prejudices on gays and lesbians is any sense any better than someone who uses a vulgarity to express the same sickening viewpoint.
9.12.2006 2:24am
AMcGuinn (mail) (www):
Historically, policing in England is motivated fundamentally by the need to keep order, and prevent riots that could turn revolutionary.

If there's a demonstration of any kind going on, and a few people turn up to oppose it in any way, they are likely to be told to go away, so as to prevent trouble. If they don't go far enough away, they will probably be arrested under section 5. The police in practice have wide power to keep order on the spot.

(If there are too many to deal with that way, the thing becomes a massive police operation to keep the sides apart.)

I'm not defending the situation, but the actual content of the leaflet is probably quite irrelevant to what happened, and the context is everything.
9.12.2006 6:09am
BobN (mail):

Is anyone else starting the get the feeling that these two positions cannot co-exist?


What happened to people who expressed pro-gay views 50 years ago? Did respect for freedom of speech help them? I don't think so.
9.12.2006 7:08am
Andy Freeman (mail):
> What happened to people who expressed pro-gay views 50 years ago? Did respect for freedom of speech help them? I don't think so.

It is generally accepted that respect for freedom of speech helped advocates for racial civil rights quite a bit. How did it completely fail folks who expressed pro-gay views?

And, even if it did, is that really an argument against respect for freedom of speech? (A right to trial by jury may not have helped gay rights either, but no one would take that fact as an argument against a right to trial by jury.)
9.12.2006 11:56am
Clayton E. Cramer (mail) (www):

What happened to people who expressed pro-gay views 50 years ago? Did respect for freedom of speech help them? I don't think so.
Can you give some examples of people who were arrested for arguing that homosexuality wasn't sinful, or bad? That would have been 1956. I recall that there was a guy named Kinsey who published some books about human sexual behavior at the time that seemed to suggest that homosexuality wasn't weird or bad.

Part of why homosexuality went from "weird, sinful, sickness" to "What's wrong with you? Homosexuality is a good thing!" as quickly as it did is that America tolerated pro-gay rhetoric. That's certainly more than homosexual activists are willing to do for anti-gay rhetoric.

Homosexuality, free speech: I am not convinced that they are compatible.
9.12.2006 1:49pm
Matt22191 (mail):
"I wish that Professor Volokh could defend the principle of free speech-- which is perfectly defensible here and which I would defend as well-- without implying that a person who 'politely' expresses that his religious beliefs give him the right to impose his bigoted prejudices on gays and lesbians is any sense any better than someone who uses a vulgarity to express the same sickening viewpoint."

He implied no such thing. The point that the leaflet is "as calm, polite, and reasoned . . . as is possible" is necessary to Eugene's conclusion that this case involves not just a restriction on how ideas are expressed, but suppression of the ideas themselves: "preventing such speech really does requiring suppressing the ideas, rather than just insisting that they be expressed in less incendiary ways." That's an important distinction, and the fact that he made it does not imply anything about the merits of the underlying ideas, or the respective speakers.

Read more carefully before you climb onto your soap box.
9.12.2006 1:54pm
Clayton E. Cramer (mail) (www):
Bruce Wilder writes:


This is about whether gay people, out for a good time in a supposedly tolerant environment, can be forcibly confronted with these ideas.
If this is "forcibly confronted" then I suppose that there's no problem arresting gay people for engaging in public displays of affection in places where "straight people, out for a good time, can be forcibly confronted with these ideas."

There is nothing quite as amusing as a member of a tiny minority group (about 3% of the population) insisting that it has a RIGHT to tell the majority to shut up. Majority oppression of minority rights is appalling; minority oppression of majority rights is insane.
9.12.2006 1:57pm
Bruce Wilder (www):
>What happened to people who expressed pro-gay views 50 years ago? Did respect for freedom of speech help them?

50 years ago, yes. 60 years ago, not so much.

The coming of the sexual revolution changed norms, and thru a series of precedental cases, the law.

For a time, though, such phrases as, "homosexual marriage" were judged obscene. Other rights were also impaired, by pervasive employment discrimination, sodomy laws, bans on gay bars, etc.

The impairment of freedom of speech, with regard to advocacy, had the usually predicted chilling effects in other areas as well. Scholarship in the 1950's, and earlier, which touched on homosexuality, for example, reflected the prejudices of the day. (Rather famously, Irving Stone published in 1961 a biography of Michelangelo, which portrayed him as heterosexual.)
9.12.2006 2:05pm
SeaLawyer:
A man walks into a bar and grabs a woman's ass, she turns around and slaps him. She is fighting for her rights. A man walks into a bar and grabs a man's ass. He turns around and punches him. He is a homo-phobe.
9.12.2006 3:19pm
The Original TS (mail):
SeaLawyer,

That is the worst "a man walks into a bar" joke I've ever heard.
9.12.2006 3:39pm
Clayton E. Cramer (mail) (www):
Bruce Wilder writes:


50 years ago, yes. 60 years ago, not so much.

The coming of the sexual revolution changed norms, and thru a series of precedental cases, the law.

For a time, though, such phrases as, "homosexual marriage" were judged obscene.
Can you give some citations to the phrase "homosexual marriage" being judged obscene? How did this sexual revolution happen without freedom of speech? In particular, how did Kinsey's careless (and sometimes intentionally deceptive) work get published if pro-gay speech wasn't protected?


Other rights were also impaired, by pervasive employment discrimination, sodomy laws, bans on gay bars, etc.
None of these are free speech rights, which was the subject of discussion--although Gay &Lesbian Law Students v. Pacific Telephone was argued and decided based on the claim that being "out" was a form of political speech, and thus protected by the Unruh Civil Rights Act. So it appears that conservative, right-wing, heterosexual America was prepared to recognize the free speech rights of homosexuals. It's a shame that homosexuals aren't prepared to return the favor.
9.12.2006 3:59pm
Chimaxx (mail):
In those times, you could be arrested merely for being in a place known to be frequented by homosexuals, or for wearing clothes of the other sex (laws like that remained on the books in Chicago until very recently). The members of the Mattachine Society wrote under pseudonyms to avoid arrest. People who announced they were proudly gay were often treated to rounds of shock therapy.

Pointing out the callousness, cruelty, ignorance, inconsistency and lies in most anti-gay rhetoric is not intolerance, by any measure.

I have yet to hear any gay rights supporters call for anti-gay speakers and writers to be forced to undergo shock therapy, or to be arrested for merely holding conventions. No one has suggested rounding up the leaders of ex-gay ministries as those who frequented gay bars once were.

You missed part of the point of my story up above, because I didn't make it clear. The Chicago Gay Men's Chorus hadn't come to Millennium Park to spread any gay ideas: They had omitted from their program the one specifically gay song they had prepared for their own program. On the last number, they were joined by the Chicago Children's Chorus and members of the Lyric Opera. But their mere presence on the program was enough to incite some homophobe to come with banner and megaphone and a few followers to disrupt the end of a hot but glorious three-day weekend of music. Such is the tolerance of the anti-gay right. I suppose he must have thought it very intolerant of the chorus to sing back at him of their joy and of their travails instead of meekly standing before him as he called them evil, diseased sinners.
9.12.2006 4:32pm
BobN (mail):
Andy,


It is generally accepted that respect for freedom of speech helped advocates for racial civil rights quite a bit. How did it completely fail folks who expressed pro-gay views?


Of course freedom of speech was central to gay liberation. That's part -- but only part -- of why I support it completely. I'm opposed to the British law under discussion and many similar attempts to regulate anti-gay, anti-Jewish, anti-Muslim, anti-Christian, anti-black, anti-______ speech. Heck, I even disagree with Congressional attempts to stiffle Fred Phelps, even at military funerals.

BUT I find suggestions that homosexuality is a new threat to freedom of speech to be ridiculous, especially when those making the argument seem to forget just how harshly the government and society treated gay people back in the good, old days.






By the way, I almost burst out laughing at your "minority oppression by the majority is appalling" line.
9.12.2006 4:53pm
BobN (mail):
Andy,

OOOOPS... sorry about that last line. I was constructing a reply to Clayton and thought "what's the point?". So I erased it and replied to you. Unfortunately I failed to delete the last line.

My apologies.
9.12.2006 4:56pm
Clayton E. Cramer (mail) (www):

In those times, you could be arrested merely for being in a place known to be frequented by homosexuals, or for wearing clothes of the other sex (laws like that remained on the books in Chicago until very recently). The members of the Mattachine Society wrote under pseudonyms to avoid arrest. People who announced they were proudly gay were often treated to rounds of shock therapy.
Citations, please, about the shock therapy (which was used for depression back then). Yes, I know about Alan Turing's problems--in England.

Cross-dressing is freedom of speech?

Under which statute would the Mattachine Society's members be arrested? Or were they writing under pseudonyms because the society didn't approve of homosexuality? (Admittedly, with great examples like Ernst Roehm, I'm not surprised.)

Homosexual sex was unlawful everywhere until 1961. But advocacy of homosexuality? I don't want your emotional flaming--I want a specific citation to a specific statute, or decision, holding that advocacy of homosexuality was obscenity. Note: a gay porn film isn't "advocacy of homosexuality" anymore than a straight porn film is "advoacy of heterosexuality."

Pointing out the callousness, cruelty, ignorance, inconsistency and lies in most anti-gay rhetoric is not intolerance, by any measure.
But arresting people sure is.


I have yet to hear any gay rights supporters call for anti-gay speakers and writers to be forced to undergo shock therapy, or to be arrested for merely holding conventions. No one has suggested rounding up the leaders of ex-gay ministries as those who frequented gay bars once were.
I have. See here.


Lock up the 'ex-gays'

...

Someday, science will discover the biological or genetic root of homosexuality and finally put to rest the absurd notion that sexual orientation is a choice. Until then, we must counter the damaging rhetoric of the "ex-gays" and ensure that young gays like Zach understand that they are perfectly normal as they are.

It's the "ex-gays" that belong in a reparative camp.
The rest of the column is a pack of errors (I'm being polite), of course. Homosexuality, while perhaps not a choice like "I think I'll have coffee, not tea," is certainly something that at least for some people is changeable.
9.12.2006 6:05pm
Clayton E. Cramer (mail) (www):

BUT I find suggestions that homosexuality is a new threat to freedom of speech to be ridiculous, especially when those making the argument seem to forget just how harshly the government and society treated gay people back in the good, old days.
This incident isn't the first case where British police have arrested someone for expressing disapproval of homosexuality. There is also Norwegian Rev. Ake Green, who fortunately won on appeal the right to speak out against homosexuality. There's the Canadian teacher who had his teaching license suspended for writing a letter on his time, to a newspaper expressing disapproval of homosexuality. You don't find those worrisome? Well, of course, not, you are in control.


By the way, I almost burst out laughing at your "minority oppression by the majority is appalling" line.
So arresting people for distributing literature is funny to you?
9.12.2006 6:09pm
BobN (mail):
Clayton,

Arresting people for expressing their opinions (or shunting them off to "free-speech zones") is outrageous. Your anti-gay histrionics are laughable, not funny.
9.12.2006 6:44pm
Chimaxx (mail):
Clayton:

As others have pointed out, England and Canada have different laws than the US, ones that prioritize social tranquility over freedom of speech. They see free speech as a good thing, overll, but not a fundamental right.

Are these distressing? I certainly find them so, even though I vehemently disabree with those being arrested.

Are they worrisome, in the sense that I expect that to become the norm in the United States? No. Again, because of the fundamental value we place on freedom of speech.

And you're right, the police generally didn't bother trying to arrest pro-gay writers for their writings. Our free speech guarantees would make prosecution difficul and conviction unlikely. Instead, assuming, quite rightly, that most pro-gay writers were themselves gay, they would follow them til they could arrest them on sodomy charges--or, better, public indecency charges ("he was kissing another man on the doorstep")--which were easier to prosecute and win.

And what clothing one wears can be expressive behavior as much as waving a flag, and thus defensible as free speech. Today, if we rounded up every woman wearing a flannel shirt that buttoned on the left on suspicion of lesbianism, it would be laughed out of court, but it was not uncommon 60 years ago.

As to rounding up the ex-gay leaders, I was thinking of those who served adults directly. Those who have "treatment" camps for adolescents should be arrested for child abuse, where applicable.
9.12.2006 8:26pm
Clayton E. Cramer (mail) (www):

And what clothing one wears can be expressive behavior as much as waving a flag, and thus defensible as free speech. Today, if we rounded up every woman wearing a flannel shirt that buttoned on the left on suspicion of lesbianism, it would be laughed out of court, but it was not uncommon 60 years ago.
Can you give me some actual examples (not ones fished out of the fever swamps of an imagined past) of women being arrested for wearing flannel shirts in the bad old days? Sorry, but I have too many pictures from 60 years ago, and guess what? Women (even straight women) sometimes wore very masculine pants and flannel shirts.


As to rounding up the ex-gay leaders, I was thinking of those who served adults directly. Those who have "treatment" camps for adolescents should be arrested for child abuse, where applicable.
For helping troubled kids? I know that it is important to make sure that every troubled and confused kids becomes homosexual (so that you have a new generation to keep your political power strong), but isn't this a bit extreme?
9.12.2006 10:03pm
David M. Nieporent (www):
Oh, puh-lease, Clayton.

The author of that piece (who, full disclosure, I went to high school with) is clearly not actually saying that anybody should be sent to prison. You really need to be sent to a camp to be cured of your GDS. He's engaging in political rhetoric: "Locking up kids until we cure their gayness? That's awful. If anyone should be locked up until they're cured, it's the ex-gays."

(Now, he might have been serious about the "sue them out of existence" line; he's a liberal, so he thinks that lawsuits are a good thing.)
9.12.2006 10:04pm
Clayton E. Cramer (mail) (www):

He's engaging in political rhetoric: "Locking up kids until we cure their gayness? That's awful. If anyone should be locked up until they're cured, it's the ex-gays."
You've expressed it in subjunctive case; he didn't.
9.12.2006 11:50pm
Randy R. (mail):
In 1954, a small magazine was began entitled ONE: The Homosexual Magazine. The magazine was not a porno mag, but rather was issue oriented. The first cover featured an article entitled "Homosexual Marriage?" Initially, they received advance ruling form the Post Office that the mag was obsene in no way and cleared the way to mailing. Once issued, however, The US Post Office siezed 600 hundreds copies of the first issue, declared it obsene. J. Edgar Hoover, head of the FBI, became obsessed over the issue, and was determined to crush ONE, and began investigations on any criminal sanctions that could be imposed on the mag or the people behind it. ONE filed a lawsuit, lost at every level, but finally the SCOTUS ruled in its favor. One v. Olesen (1958). Part of the reason SCOTUS ruled it favor of One is specifically because the mag merely talked about homosexuality, and did not ADVOCATE in favor of it. Had the mag taken the step of advocacy, the ruling may well have turned out differently.
In any case, it is clear that in 1958, mere advocacy of homosexuality would get you introuble with the FBI, the Post Office and possibly many other instutitions. (Source: Courting Justice: Gay Men and Lesbians v. the Supreme Court, by Joyce Murdock and Deb Price). Deb Price is a columnist for the Detroit Free Press.
IN the summer of 1950, the NY Times reported on widespread roundups of "Undesirables" seized in Times Square, their only crime apparently being gay while breathing. And shock therapy was indeed the venue of choice for anyone who was considered gay. (Source: The Gay Metropolis)
The owners of City Lights Bookshop in SF were arrested for selling Howl by Ginsberg in 1957. (Source: Homophobia: A History)
Throughout the 50s and 60s, homosexuality was considered a mental illness, and people were in fact committed to institutions against their will. Once there, they would be forced to undergo electroshock therapy in an attempt to 'cure' of this disease. (Source; Gay Metropolis)
Throughout the 1950s in SF, men were often arrested for wearing women's clothes. The arrests declined when they began to hire attorneys who argued for their 1st amendment rights, but still continued sporadically through the early 60s.

Are there are any cases of people who on the right who have been arrested for wearing clothes that are too traditional? Or publishing magazines or making speeches that argue for the arrest, deportation, demonizing, and even death of gay people? Any cases of someone becoming so religious that it was considered a mental illness, and that shock therapy might cure them of the disease?

Gay people have historically had more reason to fear arrest, forced therapy treatments, blackmail attempts and so on that any anti-gay person ever has.
9.13.2006 12:13am
Randy R. (mail):

Actually, Clayton, you should support the notion of locking up the Ex-gay therapists who try to 'treat' gay youth. Studies have shown that most gay teenagers who were sent to these camps that try to convert you to straighthood, experienced their very first homosexual incident at their 'ex-gay' camp.

When you think about it, what better way to encourage homosexual activity than to put a bunch of horny gay teenagers together for the first time away from home?

Oh, and by the way, every single study shows that the vast majority of the people who came out of these camps said it didn't change a thing, except perhaps to make them angry at their parents for sending them there against their will.
9.13.2006 12:18am
Randy R. (mail):
As for arresting ex-gay leaders for child abuse:
There is a shelter in SF for children who were sent to ex-camps located in Utah and other areas. They are mainly operated by Mormons, and on occasion, the teenager will escape and find his or her way to the shelter. The tales of abuse are horrifying: electro-shock therapy, forced bathing in ice cubes for long periods of time. one of the worst practices is that they hook up electrodes to the boy's penises, and then show them gay porno films. When the his penis gets hard, he gets successivly stronger electrical shock to his penis, in some cases causing burns.
These camps are isolated and secret, making them difficult to escape from.

If true, even you Clayton would have to admit this constitutes physical abuse and should be punished to the fullest extent of the law.
9.13.2006 12:23am
Randy R. (mail):
More on this...
Mr. Nicolisi (he still uses his title doctor, but he's been stripped of his membership in the APA) is the leader is so-called reparative therapy. He was quoted in the Advocate magazine: "The parents bring me kids are are unhappy. It's my job to increase the possiblity of a heterosexual future for these effeminate boys." Some of his clients are as young as three year old boys. (And the right accuses us of recruiting! How you can tell the sexual orienation of a three year old, and that he is unhappy with it?!).

The therapy is damaging enough that it has resulted in several high profile lawsuits and settlements against these so-called therapists, often in the millions. One award exceeded $10 million. The damage is real.
(Source: Anything But Straight: Unmasking the Scandals and Lies Behind the Ex-Gay Myth, by Wayne Besen)
9.13.2006 1:19am
Clayton E. Cramer (mail) (www):

ONE filed a lawsuit, lost at every level, but finally the SCOTUS ruled in its favor. One v. Olesen (1958). Part of the reason SCOTUS ruled it favor of One is specifically because the mag merely talked about homosexuality, and did not ADVOCATE in favor of it. Had the mag taken the step of advocacy, the ruling may well have turned out differently.
That's quite a bit to derive from:


PER CURIAM.

The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Ninth Circuit is reversed. Roth v. United States, 354 U.S. 476 .

That's the entire decision in One v. Olesen, 355 U.S. 371 (1958). You will notice that the free speech rights of homosexuals were upheld.

IN the summer of 1950, the NY Times reported on widespread roundups of "Undesirables" seized in Times Square, their only crime apparently being gay while breathing. And shock therapy was indeed the venue of choice for anyone who was considered gay. (Source: The Gay Metropolis)
Do you have a less partisan source for this claim?


Any cases of someone becoming so religious that it was considered a mental illness, and that shock therapy might cure them of the disease?
Mental hospital lockups for having weird religious beliefs are one of the reasons that a number of states adopted more stringent requirements for commitment in the 1870s. Mrs. E. P. W. Packard's Modern Persecution, or Insane Asylums Unveiled, as Demonstrated by the Report of the Investigating Committee of the Legislature of Illinois (Hartford, Conn.: 1873).

I am shocked to find that ECT was used for treating homosexuality. I can at least see the reasoning for aversion therapy--but shock therapy? It sounds like psychiatrists had this neat tool that worked so well for severe depression that they decided that it was a universal fix-all.
9.13.2006 11:50am
Clayton E. Cramer (mail) (www):

Actually, Clayton, you should support the notion of locking up the Ex-gay therapists who try to 'treat' gay youth. Studies have shown that most gay teenagers who were sent to these camps that try to convert you to straighthood, experienced their very first homosexual incident at their 'ex-gay' camp.
I have never expressed an opinion about the value of these camps. I am very skeptical that aversive techniques are going to change a person's homosexuality. Homosexuals who are highly motivated to change their orientation are successful about half the time; they aren't being dragged off in the night for involuntary treatment.
9.13.2006 11:53am
Clayton E. Cramer (mail) (www):

The owners of City Lights Bookshop in SF were arrested for selling Howl by Ginsberg in 1957. (Source: Homophobia: A History)
The arrest was on obscenity charges. Now, argue if you want that obscenity shouldn't be unlawful, but there's no shortage of obscenity charges during that time involving heterosexual materials. For example, Roth's case reaches the Supreme Court in 1957.
9.13.2006 12:11pm
Randy R. (mail):
You are assuming that a book entitled The Gay Metropolis, or Homophobia, is biased. Any sourcing for that? Or does sourcing only work one way?
9.13.2006 9:31pm
EricRasmusen (mail) (www):

I found the 9th Circuit opinion for the One case, and it is not as described in the comment above. What the case was all about was the sending of obscene material by U.S. mail. It turns out that there was no prosecution of the magazine at all. Rather, the lawsuit was started by the magazine, which asked the court to issue an injunction forcing Postmaster-General Olesen to send the magazine by U.S. mail, contrary to his claim that the magazine contained some obscene pages. One v. Olesen, 241 F.2d 772 (1957, 9th Circuit). Moreover, the obscenity was not related to the advocacy of homosexuality, but rather involved such things as a short story, a poem, and an advertisement. For more, including excerpts, see my weblog at:

http://www.rasmusen.org/x/2006/09/13/1331/
9.13.2006 10:54pm
Clayton E. Cramer (mail) (www):

You are assuming that a book entitled The Gay Metropolis, or Homophobia, is biased. Any sourcing for that? Or does sourcing only work one way?
The use of the word "homophobia" in a title gives you a pretty clear picture of likely bias, doesn't it? Imagine if someone cited a book titled, Black Bucks Who Can't Keep Their Pants On as a source for information on the number of interracial rapes. Would you think the title reflected a bias of some sort?
9.14.2006 12:08am
Clayton E. Cramer (mail) (www):
Randy R. asks:


You are assuming that a book entitled The Gay Metropolis, or Homophobia, is biased. Any sourcing for that? Or does sourcing only work one way?
You also cited a book Courting Justice: Gay Men and Lesbians v. the Supreme Court for your description of One v. Olesen (1958)--and as Professor Rasmusen points out, the description of the case is wildly inaccurate. I am going to assume that you summarized Courting Justice accurately, and that the book was wrong. Maybe you should start considering the very real possibility that the need for a useable past for gays is producing history books of questionable accuracy.
9.14.2006 12:16am
Chimaxx (mail):
Thanks for doing some digging, Professor Rasmussen, but I'm not sure what you found really undermines the previous description of the case.

You say: "It turns out that there was no prosecution of the magazine at all. Rather, the lawsuit was started by the magazine, which asked the court to issue an injunction forcing Postmaster-General Olesen to send the magazine by U.S. mail." And the previous description says: "Once issued, however, The US Post Office siezed 600 hundreds copies of the first issue, declared it obsene. [...] ONE filed a lawsuit, lost at every level, but finally the SCOTUS ruled in its favor. One v. Olesen (1958)." Where is the contradiction? (I left out the sentence on Hoover, because it didn't seem to be referring to this case.*)

So the magazine wasn't "prosecuted" for being obscene. It had to bring the case because the postmaster refused to distribute it on grounds of obscenity. A magazine that cannot be distributed to its readers is not much of a magazine, and the machinery of prosecution is saved a lot of effort if the postmaster can simply administratively refuse to distribute.

A close reading of the ruling you quote also makes it clear that their definition of obscenity pretty much amounted to...pro-gay advacacy. Here's what the court wrote about "Sappho Remembered," according to your post:
The article 'Sappho Remembered' is the story of a lesbian's influence on a young girl only twenty years of age but 'actually nearer sixteen in many essential ways of maturity', in her struggle to choose between a life with the lesbian, or a normal married life with her childhood sweetheart. The lesbian's affair with her room-mate while in college, resulting in the lesbian's expulsion from college, is recounted to bring in the jealousy angle. The climax is reached when the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view.


The book "Courting Justice" adds these details about that story:
'... Pavia pressed her knee conspiratorially against Jill's.' In 'Sappho Remembered,' a four-page romance that playwright James Barr Hugate wrote as 'Jane Dahr' to counteract a shortage of manuscripts from women, a 30ish singer and her 20-year-old secretary, Jill, touched four times. The singer, Pavia, gradually admitted to herself that she was in love with Jill. The younger woman, meanwhile, was torn between the singer and the 'nice young man' who wanted to marry her. But unlike most lesbian pulp fiction of the day, there was no tragic lesbian death scene to keep government censors at bay. The lesbian relationship simply triumphed.


So there was no nudity, nothing explicily sexual. Their knees touched, and the two women touched three other times. So what the court means when it writes "This article is nothing more than cheap pornography calculated to promote lesbianism" is defined in its entirety in the previous sentence: "the young girl gives up her chance for a normal married life to live with the lesbian."

All the way up to and including the 9th Circuit, this publication was deemed too obscene to be allowed to be distributed through the mails to its subscribers, because this short story had a pro-gay ending.

*I'm also not sure where the original poster got the reference to Hoover from. It's not in the Chapter on ONE from "Courting Justice," which is available online here. It also provides more tetailed descriptions of the two other items the post office and the courts objected to.

And I have trouble seeing any meaningful practical distinction between what happened to Mr Green last week in England and what happened to the publishers of One. Both had their publications siezed by authorities and were prevented from distributing their ideas to the intended audience. Both will end up in court to support their free speech rights. Like ONE, Mr. Green will probably be vindicated by the courts in the long run, but he still has to face the courts to defend his free speech rights. Neither one is being directly charged for the CONTENT of their speech. Mr Green was escorted away from the area of the Mardi Gras and his publication siezed for using "threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby," while ONE was siezed by the authorities for "obscenity" in a publication that included no explicit sex and no profanity, but simply (1.) a pro-gay bias in one short story, (2.) a poem that sniggered about recent prosecutions of some British Lords cruising public toilets whose most offensive word is the noun "drains," and (3.) an ad that, the court admitted, "appears harmless," but "tells readers where to get more of the material contained in ONE." (Huh?) In both cases, the effect was indeed to suppress the content of their speech, regardless of the charge.
9.14.2006 8:53pm
Randy R. (mail):
Thanks Chimaxx: you explained things better than I did. I didn't want my post to be too long!

As for bias, again, Clayton, you make assumptions that a book entitle Homophobia cannot be accurate. You make an assumption that it must somehow be inaccurate. You haven't even shown anything in the opposite, such as some facts drudged up that show that gays have never been procsecuted for wearing female clothes.
Why can you not assume that it is in fact accurate? Does it have to be written by James Dobson to be accurate? The book is filled with footnotes to support it's contentions.

Here's a fact: You will believe any facts that make gay people look bad, but anything sympathetic must be suspect somehow. Now THAT is bias, and you have proven it amply. Obviously, I could have a hundred nuns swear to it's truth, but you will still doubt it. Therefore, any further energy spend trying to prove to you what you view is impossible is a waste of time.
9.15.2006 12:25am