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.


John Steven Fernandez/Flickr

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.
Jump to comments
Presented by

Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

Get Today's Top Stories in Your Inbox (preview)

Why Do Men Assume They're So Great?

Katty Kay and Claire Shipman, authors of this month's Atlantic cover story, sit down with Hanna Rosin to discuss the power of confidence and how self doubt holds women back. 

Elsewhere on the web

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus


Where Time Comes From

The clocks that coordinate your cellphone, GPS, and more


Computer Vision Syndrome and You

Save your eyes. Take breaks.


What Happens in 60 Seconds

Quantifying human activity around the world



More in National

From This Author

Just In