Back in the 1990’s, there was a kid in Minnesota who, quite obnoxiously, put together a cross from broken chair legs, and burned it on the front lawn of an African-American family in St. Paul. He was charged with violating a local hate speech ordinance:
Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
A nice sentiment on the part of the city of St. Paul — burning crosses, swastikas, and the like are utterly obnoxious and lack socially redeeming value. They are also, unfortunately, expressions of an opinion and therefore protected by the First Amendment. It’s easy to want to punish someone who has done something like this, because it’s so morally obnoxious. And the speech in question here was assumed to be unprotected by the First Amendment. But letting your conscience be your guide in a particular case can sometimes lead to the creation of a rule that works greater harm than that which you wish to prevent.
Which is why the Supreme Court specifically noted that laws which engage in “viewpoint discrimination” violate the First Amendment, even if the speech in question is itself unprotected. The City of St. Paul did not outlaw expressions of racial solidarity and harmony, and therefore could not criminalize expressions of racial discord. This particular law was justified only on the basis of the City’s revulsion at the content of the speech itself, which is why it violated the Constitution. “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire,” the Court concluded.
Justice Antonin Scalia wrote that opinion, by the way. He seems to have a more pro-government position on the goings-on at Guantanamo Bay than he did in evaluating the hate speech law in St. Paul.
So with that in mind, let’s take a look at this principle in another context. Back in my old stomping grounds in Knoxville, the schools have taken it upon themselves to ban certain websites but not others. Just as a sample, the website of PFLAG — Parents and Friends of Lesbians and Gays — is blocked. PFLAG’s site is completely safe for work. So too is the blocked website of the Human Rights Campaign, which urges political action such as adoption of same-sex marriage laws and sponsors gay pride parades.* But, a child using a Knox County public school computer can access websites providing testimonials about men who used Christianity to overcome their attraction to other men, and to the political advocacy website of the Traditional Values Coalition. From the article, a quote by one of the complaining parties, a librarian employed by the school district:
What tends to be discussed is, ‘Isn’t this just keyword blocking?’ Sometimes that is the reason very innocuous things will get blocked. But in this circumstance, in looking at the sites that were blocked and the sites that were not blocked, the keyword question seemed to fly out the window. You had sites like Human Rights Campaign, which is approved by the National Education Association, and GLSEN, being blocked. Both have a clear line into the media, and the legislative issues. These are all things students need access to. [¶] What’s not being blocked are sites that contain the words ‘gay’ and ‘homosexual’ and ‘lesbian’ but are advocating, for example, that people change their sexual orientation.
So what’s happening here is that if it’s a “gay-friendly” website, it gets blocked, but if it’s a “Christian-friendly” website, it doesn’t.
Now, I see a flaw in the reporting. The investigative reporter who searched for banned websites indicated that the Human Rights Commission’s website was banned. The Human Rights Commission is different than the Human Rights Campaign. Tennessee’s Human Rights Commission is an agency of the state government of Tennessee and it is the state-level equivalent of the EEOC in that state. Contrary to the report in the Knoxville MetroPulse, the Tennessee Human Rights Commission’s website does not appear to be blocked at Knox County public schools.
Which makes sense if my suspicion about the real policy at play here is correct. Tennessee state law, like Federal law, does not extend anti-discrimination protection to homosexuals. From my experience practicing employment law in the Volunteer State, this agency is entirely useless in terms of actually doing anything to prevent or combat discrimination; it never actually investigated a single charge I ever filed with it and in my experience never took action on a single complaint brought before it by any of my colleagues. It usually passed along the charges I sent to it to the EEOC, which itself was not all that activist in that state. And since it doesn’t do anything to protect or vindicate gays as a matter of law, there is no chance that a child using a school computer could go to the Human Rights Commission’s website and learn that gay people actually have rights of some kind. So there is no reason for the hidden censor to ban a website like that.
Despite the mistake in the reporting, students and faculty at Knox County schools can access the James Dobson website but not the gay rights website. In other words, Knox County computers will only give you one side of the larger debate. The practice appears to me to be utterly indefensible and motivated by not only bigotry towards homosexuals but open hostility to the idea that homosexuals might have rights. And unsurprisingly, a friendliness to the idea that Christianity offers a “solution” to the “problem” of being gay.
It’s one thing to filter out porn, which a school computer ought to do. But we’re not talking about a porn filter. Someone has decided to not let kids, especially high school kids who are already aware that there are such things as gay people, even do research on what the different sides of an issue are to, for instance, prepare for a debate class or a social studies report. This, alone, indicates the fundamental weakness of the “traditional values” position embodied by this policy — as I pointed out a while back, “Censors and bullies do not appear to be advocating good policies, because they rely on something other than the strength of their arguments to get their way.” You can’t tell me that’s not what’s going on here, because it is.
It is a shame that Knox County schools have become captured by intellectual bullies this way. Although I am critical of the ACLU for a lot of things, I hope they succeed in this case.
* Ironically, the Human Rights Campaign is also urging adoption of hate crimes laws, which are themselves at least suspect under R.A.V. v. St. Paul. The Human Rights Campaign ought not to advocate laws that are of questionable Constitutional water, no matter how well-motivated they are. But, a look at the Traditional Values Coalition’s website reveals that they do not argue that the laws should be stopped because they are unconstitutional, but rather on some argument that they are somehow hostile to “traditional morality” such as that embodied in Christianity, so no one gets to be the good guy here.