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Obscene Threat

July 2008


While it is easy to find political fault with the United States, one aspect of our civic culture commands unalloyed enthusiasm: a remarkable commitment to freedom of expression.


The First Amendment, with its bold and seemingly absolute assertion that there shall be “no law abridging freedom of speech, or of the press,” has been given increasing power and reach in its first two centuries of history. Courts have expanded its protections so that today, all sorts of dissent or criticism that would have been punished in the past — and that remains punishable elsewhere in the world — is not only tolerated, but seen as a civic virtue.


Much of the world still lives under governments that claim, as Russia’s explicitly did just two years ago, the right to punish those whose words bring “disrepute” on public officials. Even in countries that share more of our political heritage, dissenters and critics must be wary. In Britain, publishers and activists can be intimidated by threats of expensive libel action, wherein the burden falls on the accused to convince the government of the permissibility of the expression. In Canada, the government claims the power to punish any utterance that “is likely to expose a person or persons to ‘hatred or contempt’ by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” And many countries in Europe, with the Nazi holocaust an all-too-vivid memory, enforce official versions of recent history.


But in the United States, there is extraordinary political concurrence that for a wide range of expression, no government agent has the right to judge it “seditious,” or “hateful,” or inconsistent with preferred interpretations of controversial events.


Gay people have a particular interest in maintaining and nurturing such freedom, for we have not fared well when only orthodox views about sexuality are allowed, or when asserting someone’s homosexuality was virtually synonymous with slander or libel.


Two types of threats to freedom of expression, however, remain potent and merit vigilant attention and vigorous opposition.


First, there is the absurd legal notion of “obscenity,” whereby sexual matters are, nonsensically, considered beyond the protection of the First Amendment. But as gay people, we recognize how politically vital that which censors would brand “obscene” really is. When the very discussion of homosexuality can be proscribed as “indecent” or “obscene,” advocacy of more humane and tolerant policies is impaired. Even frank pornography can be seen as legitimate propaganda for the cause of sexual liberation; to ban descriptions or images of same-sex couplings is to deny advocates of homosexuality one of the most persuasive tools at changing individual opinion.


And second, the government is forever asserting the right to censor in the name of “national security.” While Vietnam- and Watergate-era courts did the country a wonderful service by voiding many spurious rationales for government secrecy, today fear-mongering is again used to justify surveillance of communications that should be protected as private. When all citizens’ phone calls are tracked without warrants, emails and text messages stored on government computers, and library records and book-buying habits reviewed by secret tribunals, the effect is to chill free speech.


Prosecutors are trying to expand the application of obscenity laws (see page 8) to include written words, sketches, and even whispered imaginations; additionally, new prosecutions of kink videos (watersports and fisting depictions, for example) are underway. It seems inevitable that ambitious bureaucrats will seek to mine the voluminous data collected in the name of the so-called war on terror to instigate witch hunts against “perverts” — those whose sexual palates appreciate more than vanilla.


Few politicians ever have the courage to stand up for civil liberties for “bad” people. History teaches that that’s our job.


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