Why Anti-Gay Bullies Deserve a Loophole

A new piece of Tennessee legislation, promoted by a Christian activist, seems to give a pass to homophobic students. But unrestricted free speech is in everyone's best interests.

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Not so many years ago, liberals and progressives would have supported a law ensuring the rights of high school students to express unpopular ideas that could make their classmates uncomfortable but would not threaten anyone's person or property. Today, they're apt to condemn this simple affirmation of basic student-speech rights as "horrifying." Why? Because it appears in a proposed amendment to a Tennessee anti-bullying bill, advocated by an anti-gay Christian activist, and it would establish a religious and political "loophole" for anti-gay speech.

So what? The First Amendment is supposed to provide "loopholes" from restrictions on speech (especially core political and religious speech), and laws should be judged by what they say, not what their supporters believe. What would this law say? With apparent horror, thinkprogress.com draws these quotes from a summary:

'Creating a hostile educational environment' shall not be construed to include discomfort and unpleasantness that can accompany the expression of a viewpoint or belief that is unpopular, not shared by other students, or not shared by teachers or school officials.

The policy shall not be construed or interpreted to infringe upon the First Amendment rights of students and shall not prohibit their expression of religious, philosophical, or political views; provided, that such expression does not include a threat of physical harm to a student or damage to a student's property.

You shouldn't have to study this language to recognize that opposing it means supporting infringements on First Amendment rights and punishing students who express religious, philosophical, or political ideas that others find discomforting or unpleasant.

The proposed amendment does includes additional, unreasonable restrictions on anti-bullying programs It would, for example, ban teaching -- or even suggesting -- that beliefs are discriminatory if actions based on those beliefs aren't already prohibited by anti-discrimination law. But gay right advocates who condemn the amendment in its entirety because it means "you can say what you want" should realize that, regardless of its sponsors' intent, it wouldn't (and constitutionally couldn't) protect the rights of anti-gay speakers alone. It would also protect the rights of gay students to advocate for same-sex marriage, equal employment laws, health care equality, or gay adoptions, among other issues -- even if their advocacy is unpopular and considered by some "unpleasant."  


I have repeatedly criticized the excesses of thoughtlessly repressive anti-bullying crusaders, and I'll persist as long as they do. I understand their anti-libertarian, result-oriented approach to free speech. It's hardly uncommon; people are generally quick to support "free speech for me, but not for thee," as Nat Hentoff has suggested. So I 'm not surprised when advocates try censoring their opponents. But I am still a bit shocked when they're oblivious to the censorship they impose on themselves. I expect self-interest; I just wish it were enlightened.
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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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