FREEDOM OF SPEECH TAKES CENTER STAGE!
SUPREME COURT OVERTURNS DECENCY ACT: On June 26, the Supreme Court voted, 7-2, to overturn the Communications Decency Act, a portion of the Telecommunications at of 1995. Two justices, O'Connor and Rehnquist, indicated it was permissible to criminalize the knowing transmission of "indecent" messages to minors, but all the justices indicated it was unconstitutional to criminalize the display of "indecent" material on the supposition a minor might see it. On March 19, I got into the Court through the "Three Minute Line" and had enough time to hear Justice Scalia ask whether protecting children was an acceptable government responsibility even if screening of Internet broadcasts were not feasible.
SUPREME COURT OVERTURNS Religious Freedom Restoration Act. One June 23, the Court voted, 6-3 to overturn a federal law requiring "compelling state interest" in imposing administrative restrictions on the practice of religion. The case had arisen out of a case where a Texas church had been prohibited from expanding because of historical preservation zoning. Now, I think that the church and the city should have worked things out and I'm no fan of zoning laws; but when a religious group is granted exemptions from rules the rest of us follow, we all pay to subsidize religion. Sure, when I owned a home, I never thought about it this way when I itemized my contributions to the MCC.
The SUPREME COURT held that there is no such thing as a constitutional right to assistance in dying, although it indicated that government probably cannot compel the extension of life for those who want to die. The right-to-die debate does indeed call into question the libertarian notion that every individual should be his own moral agent. Liberals and conservatives both argue that freedom to "contract", to enter into any voluntary agreement, is sometimes illusory and responsive to subtle and socially destructive pressures; yet it's awfully easy to confuse a community "morality" calculation with the simple manipulation of "moral values" by one group to gain at the expense of others.
On April 8, 1997. a Federal Appeals Court upheld California's Proposition 209, which bans affirmative action by the state or by state-supported schools on the basis of race or gender.
On July 3, 1197 federal judge Eugene Nickerson, for a second time, struck down the entire Don't Ask Don't Tell policy for homosexuals in the military, both the statute and accompanying regulations. He had been asked by the appeals court (for Able) to consider whether the separate rules on sexual conduct for homosexuals and heterosexuals violated equal protection. It does so, Nickerson said, first, because gays, contrary to prior rulings, can get strict scrutiny for e.p. analysis, despite the lack of explicit civil rights protections. More important, Nickerson invalidated the entire scheme of treating speech as a presumptive surrogate for "conduct," because, he says, the presumption device (itself acceptable under common law) is being used to cover up an unconstitutional purpose, which is to deny gays equal protection. Nickerson held that the military had shown no other reason for disparate analysis than animus, which is now prohibited under Romer.
The Justice Department appealed and observers expect much of Able to be upheld, and that the whole policy may finally wind up before the US Supreme Court in the spring of 1998, based on conflicting appeals court rulings. Thomasson and Selland appeals have already been turned down; but Watson, Richenburg, and Holmes could conceivably all go to the Big House.
One could argue, saying "I like you as a person but I don't want to bunk next to you." is hardly animus; we all know that copout in the gay world. (Military "group theory" would actually allow gayman-lesbian bunkmates without violating its mathematical laws of no sexual attraction.) So I don' t think the Supreme Court would uphold Nickerson's line of reasoning, despite its appealing simplicity. But the military, at least in the security area, is walking dangerously close to irrationality and to blowing its historical "deference" when it conducts these witch-hunts, which, we all know, are now going after straights! (Yeah, that's equal protection - equal witch-hunts!) So, the policy, exactly as written may well be unconstitutional, but would probably pass constitutional muster if there are some reasonable limits on the ability of the military to mess with strictly personal affairs of soldiers' lives (when not deployed).
On a certain level, this becomes something courts are limited in resolving. A military with Thomasson, Cammermeyer, and their likes is better off than a military without them, but no court can really say that. The existence of a military is an acquiescence to common good: there are at least some situations where individual self-expression mush be restrained for common welfare; and even in a libertarian society with no servitude and no taxes, there are moral voluntary communal obligations (common defense, parenting, giving blood), where cutting out gays still makes them second class citizens in the culture. For the government to try to hide from this (which it does repeatedly in its briefs defending DADT) is very wrong.
DOD has issued an official memorandum promising to stop the harassment of "perceived" gay and lesbian members of the military. The memorandum, dated March 24, 1997, was issued by Under Secretary of Defense Edwin Dorn. The memorandum states: "This guidance is issued because of information we have received that some service members have been threatened with being reported as homosexual after they rebuffed sexual advances or themselves reported acts of sexual misconduct by others. The information also indicates some service members reported threats of harm to their person or property based upon perceived homosexual orientation."
The memorandum continues: "The report of such a threat should result in the prompt investigation of the threat itself. Investigators should not solicit allegations concerning the sexual orientation or homosexual conduct of the threatened person." The memorandum concludes that "Service members should be able to report crimes free from fear of harm, reprisal, or inappropriate or inadequate governmental response."
Of course, heterosexual soldiers are suddenly learning what it is like to become the targets of witch-hunts. This time around, some straights are actually listening to Barney Frank with his proposed "Anti-Hypocrisy Act."
A news reporter in Tacoma, Wa. was transferred to a copy-editing job when her newspaper decided that her off-the-job political activities (including gay activism) amounted to an (apparent) conflict of interest. Although Washington State has a law banning discrimination because of political views or non-commercial activities, a state appeals court ruled that the newspaper had a compelling interest in maintaining objectivity.
These kinds of situations (conflict with the workplace because of off-the-job actives) may become more frequent because of the relative ease of self-publicity (to the possible offense of a targeted customer) through the internet . Many jobs (lobbyist, trial lawyer) obviously require off-the-job loyalty; technical people like me are used to doing what we want. At least government shouldn't get in the way. See my editorial.
Boaz, David. Libertarianism: A Primer. New York: Free Press, 1996.
Boaz, David (editor). The Libertarian Reader: Classic and Contemporary Writings from Lao-Tzu to Milton Friedman. New York: Free Press, 1996.
Murray, Charles. What It Means to Be a Libertarian: A Personal Interpretation. New York: Broadway Books, 1997.
First: Congratulations to David Boaz for this monumental publishing event, underwritten by a major New York publishing house which has aggressively marketed the books. The Primer is already in its third printing.
Boaz's strategy of presenting his material in two books makes a lot of sense. The Primer is reasonably detailed and provides an interesting history of libertarian concepts and thought. The Reader actually presents the detailed writings which support Boaz's thesis that libertarian thought has always been a major part of our culture. Murray's book is much simpler. On the claim that weaker people won't take care of themselves without government to protect them from themselves, Murray offers a blunt, "that's tough." One can turn to Murray's earlier books (such as In Pursuit: Of Happiness and Good Government) for detailed substantiation of his views.
No libertarian book currently available from commercial houses goes into the details of psychological motivation that I do in my own book, Do Ask, Do Tell: A Gay Conservative Lashes Back, which I have just published (July 11, 1997 was my Day of Reckoning) under my own imprint (High Productivity Publishing). One of my points will be that government, by redistributing wealth and by playing umpire, keeps people from facing basic cultural and personal moral issues on their own. A libertarian society should free people for their own personal growth, like that described by Paul Rosenfels in Homosexuality: The Psychology of the Creative Process (published by The Ninth Street Center in 1972, and again in 1986).
At the Cobalt, I've had to defend "my damned book." Why would I impose so many embarrassing personal secrets, other than to draw attention and notoriety for myself after a lifetime of relatively little achievement by conventional standards and of relatively little intimacy? Sickos do that. Now, we can debate the point (often made by conservatives like Bork and Gilder), that altruistic sexuality ("family values") is an important precursor for the psychological depth that generates lasting contributions. But I really believe some events in my life provide cutting, substantive illustrations of the tension between self-ownership and community obligations, and delineating these in such a specific manner really shows that government just can't solve "moral" problems with social engineering. Most established authors present political arguments in more abstract terms, and they tend to come across as just opinions (although they can hide under the "opinion rule" in common libel law). Many people can't be as explicit as I am about sensitive matters and get away with it. But until we can talk frankly about the subtle effects our behaviors (expressive of our co-existent, entangling but differently-sized and shaped egos) have on each other, we'll never break out of the adversarial spoils systems that keeps politicians in the good life. Only after a long journey do I get to my final point about renovating the Bill of Rights, and freeing ourselves to grow as our own moral agents.
To purchase, contact me at JBOUSHKA@aol.com or call at 703-916-8516. I intend to recover some costs (which were surprisingly low) but share other revenues with non-profit groups I support including, such as
Gene Cisewski has delivered a position paper entitled "Gays, Lesbians and the State" to a student audience at the University of Texas. See the GLIL web site for this paper (in Archives).
Finally, let us congratulate Robert Cassler for the publication and showing of his play, Second in the Realm, which GLIL viewed at a video-taping party on November 2m 1996.
Gene Cisewski will address the Libertarian 2000 convention in Philadelphia Labor Day Weekend. Contact the Liberty Council at 1420 Locust St. Suite. 36-D Philadelphia, Pa. 19102-4223
In the beginning, there were tribes, then there were nations, mother countries and colonies. There were states, churches, companies. History was taught in terms of collective struggles and counter-attacks. Identity was tied to nationhood.
Yet, progress occurred in quantum leaps, catalyzed by individual "enzymes" but executed by collective efforts. As society became more politically and infrastructurally stable, the idea that the average individual could direct the course of his or her own life became credible. And the most important component of self-ownership seemed to be free speech, the right to speak out and project an identity through original or synthesized ideas. Politics tended to lag behind individual growth and speech, and public policy remained a spoils system, of which groups could amasses the most resources with simple messages to get their ways at the expense of others.
In turning down Navy Lt. Paul Thomasson's plea that the "don't ask, don't tell" policy regarding homosexuals in the military be ruled unconstitutional, the Fourth Circuit Court of Appeals noted that the gay ban had been vigorously debated "politically" within the federal government in 1993, but the Court also conceded that the whole issue deserved a second, much fairer debate. Sensitive psychological and moral issues should be decided by the people, the Court maintained, and not by the judiciary.
So fine! We need to debate issues like the gay ban, same-sex marriage, gay parents, drugs, gun control, income taxes, tort reform, and so on. And now we may. Technology, in the past few years, have given people of average means powerful weapons in debate; novice commentators have the opportunity to broadcast political and ethical views on web pages, message boards, chat rooms, and even through desktop publishing.
We had grown accustomed to the idea that you don't expect to have your own views taken seriously until you first matter to a family of your own (that might be a gay family) and, subsequently, rise through conventionally accepted channels in some field. You speak up when you have the support of family and business; otherwise you privately support political candidates who will do your thinking and talking for you. You accept the essentially adversarial nature of a free, capitalist society. Marketing, peddling - the mechanisms of competitive business, are inherently team sports. Now, people who are articulate enough can develop voices all on their own, and some people may see that as a threat. The town crier may be keeping the political process honest, or he may be speaking out of turn and indulging himself.
To discover truth and present right in an intelletctually honest fashion would force many people into a position of apparent disloyalty to customers or family, or even into the position of compromising confidences obtained during earning a livelihoood. So they are forced to settle for giving money to others who oversimplify the truth and who present their supporters as victims. Practical human and commercial affairs limit the capacity of persons to speak for themselves and force them to join up with political groups. The notion of group rights, denied by "political powerlessness" is vindicated and leads at best for gays to claims of suspect classhood deserving strict scrutiny. The complexity and subtlety of many issues (the "family values" rubric) get lost in the oversimplification that fund-raising and vote-getting require.
Let's take the Communications Decency Act. We're relieved (though not surprised) that the Supreme Court struck it down. But remember, there's no constitutional right even for consenting adults to exchange obscenity, and there's no fundamental right to expose non-consenting others (which would include children) to "broadcasted" indecent (not interpreted in context) material. Validation companies may now be able to enable personal web publishers to screen their customers affordably, although validation may not work in chat rooms and boards. The real hooker is "community standards," an idea making no sense in cyberspace. So a DA in Mississippi could force AOL to close down its Gay and Lesbian Forum because the idea of "homosexuality" is indecent by his local standards. When conservatives speak about patently offensive depictions of sexual activities, they are one step away from banning broadcasted discussion of any material they see inappropriate for minors, including discussions of weapons, violence, and, yes, gay issues. Thankfully, the Supreme Court did not see the "display" aspect of a web-page or bulletin board as intrusive as broadcast television, and it recognized that the CDA would effectively chill out legitimate debate on issues like safer homosexual sex among adults.
In gay issues, after all, "coming out" - the unveiling of personal experience and feeling - is part of the political process, a principle tool to defuse animus. Whether to protect the future sexual "normalcy" of teenage boys being taught history, or the combat-readiness of a grunt unit, government sometimes tries to find "moral" excuses to keep real discussion of gay issues off the table. (I'd add, looking back into the Cold War, homosexuality seemed, at best, a trivial issue compared to a potential war of the worlds.) How then, does Paul Thomasson get the political debate the judge says he should have had? Now, it's by using these low-cast media to broadcast himself.
But the personal broadcast facility will be under threat from other sources, as well. Consider, for example, the fact that in 1995, a federal court ruled that a communications provider could be held partially liable for the copyright torts (and conceivably other torts like libel) committed by one of its customers, if it either had any reason to believe infringement could occur or if it claimed it could prevent infringements! A printer can be held strictly liable for a copyright infringement of an author even if the printer does not know of the infringement and cannot find out with reasonable prudence. Consider now a lawsuit against Paladin Press for publishing a weapons manual which apparently gave a criminal in Florida an "idea" for carrying out a murder. (The criminal would have killed anyway, Paladin or not). Could a printer (not publisher) be held liable for the contents of a book he manufactures for a self-publisher? Should a horror novelist be required to set up an indemnity fund should a crime in his book be copied? One can see that the threat of liability could quickly shut down a lot of unsupervised venting of political views as well as genuine literature. Already, many major publishers (the OJ books notwithstanding) turn down really controversial projects because of the threat of liability. The good intentions of the law to protect society's most vulnerable and least intact people - often from themselves - inhibits all of us and helps the political establishment keep a status quo.
There is a myriad of examples where government inhibits legitimate speech, from the publishing of cryptographic software to protests at abortion clinics. By requiring employers (under affirmative action) to advertise in "minority publications," government demeans the credibility and message of an enormous number of periodicals. (Is The Quill a minority publication?) Free speech meshes with all kinds of other issues, including campaign financing, advertising, and the relation between corporations and persons. Author Jonathan Rauch has argued that there is a trade-off between free speech, on the one hand, and the elimination of all possible discrimination and appearance of harassment (or hurt feelings) on the other, particularly in the workplace. (See the June 23, 1997 New Republic).In this era where the Democrats, especially, seem determined to bring back comstockery, Free Speech issues may become the most important of all.
Post publication note: In copyright law, for-profit business structure on the part of the author (as with a proprietorship) may weigh against "fair use" and it is not completely clear from the 1978 statute that for-profits can invoke fair use at all. Ironically, non-profits and religious organizations that enjoy a tax break from the government are at a theoretical advantage in copyright law. Another libertarian argument against income taxes!
CLINTON SHOULD HAVE STAYED OUT OF AMERICAN AIRLINES STRIKE
by Deroy Murdock
Please see the GLIL web site (named above). Please scroll down the archives menu to 1997 to find this item.
FROM THE LIBERTARIAN LEFT:
Reaction to my self-labeling as "conservative"
I think I will need a definition of "conservative".
While I consider myself a libertarian, I'm not sure my brand of libertarianism falls within your definition of conservatism.
Looking at our state party which is filled with conservatives frightens me as much as Republican Conservatives (Religious right). I wish to see the day that liberty is manifested in its fullest form. I do not see conservatives as expanding liberty, but rather contracting liberty.
Some food for thought. Dave Doss
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The Quill is published by Gays and Lesbians for Individual Liberty (GLIL), an organization of classical liberals, market liberals, limited-government libertarians, anarcho-capitalists, and objectivists. GLIL publishes The Quill to promote the philosophy of individual liberty, both generally and as it affects lesbians, gay men, and bisexual and trans-gendered persons.
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The Editor welcomes opinions and comments, normally of 200 words of less. Email to JBOUSHKA@aol.com.