Gay People, Sex, and the Media

Michelle Wolf, Alfred Kielwasser

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317953692
• Edition: 1
• Topic: Sprachen & Linguistik
• Subtopic: Sprachwissenschaft

Here is a provocative book that examines precisely how and why mass communication has an impact upon the sexual realities of our lives. Written in response to a demand for information that cuts across many of the boundaries found in more traditional books on sexuality and mass communication, Gay People, Sex, and the Media covers a broad range of sexual identity, socialization, and mass communication issues and represents a variety of theoretical and methodological orientations. Although the chapters are diverse, they all focus on how the mass media--television, radio, films, newspapers, magazines, and recorded music--contribute significantly to the very definitions we form of ourselves and of each other. In part, this informative volume discusses and analyzes several concerns regarding minority perspectives in the context of the the study of mass media content and effects; analyzes mediated information about AIDS and highlights the responsibility of the mass media to disseminate more accurate information; addresses the relationships between mass media content (primarily television) and sexual socialization; explores issues confronted by individuals whose sexual orientations are generally perceived as falling out of the mainstream; and provides a selective bibliography of print, aural, and visual resources on gay men, lesbians, and the mass media. Unique in contrast to other books of research on human sexuality and mass communication, Gay People, Sex, and the Media gives more than a passing reference to issues concerning sexual identity and gay and lesbian concerns. Scholars and students of human sexuality, especially those who wish to explore their field from a communications perspective, will find this to be a valuable book. It is also useful to communications researchers and teachers, particularly those studying mediated communications in society, media ethics, and sex and the media. Finally, for professionals involved in creating or monitoring media content or forging public policy and community action programs in response to these issues, this volume serves as an essential sourcebook.

Sexual Minorities and Communication Law

Lesbian and Gay Rights as a Free Speech Issue: A Review of Relevant Caselaw

Paul Siegel, PhD
Gallaudet University

SUMMARY. The legal struggles waged by lesbian and gay male litigants almost invariably involve issues of freedom of expression, broadly construed. To illustrate this point, a wide array of caselaw is examined—ranging from classic "access to a forum" controversies to those concerning symbolic conduct and freedom of association (including marriage and child custody law), employment discrimination, and proscriptions against deviant sexual conduct. In each category, claims to a right of freedom of expression are manifested.

Cautionary notes are offered concerning those cases in which gay litigants try to protect their rights by inhibiting the speech of others. A brief concluding section assesses the long-term and short-term efficacy of raising First Amendment arguments (as opposed to privacy or equal protection arguments) in lesbian/gay male litigation.

A state employee whose gay activism attracts a modicum of media coverage that comes to the attention of his employer is told to seek psychiatric examination or be terminated (Gish v. Board of Education, 1976). A lesbian couple is told that they may retain custody of one of the women's children, but is warned that if they spend "too much time" in lesbian rights advocacy, that "would jeopardize future custody" (Schuster v. Schuster, 1974, p. 2004). A gay-oriented social service organization seeking tax exempt status is successful, but only on the condition "that none of the educational programs includes any substantial advocacy of the position that homosexuality is a mere preference, orientation, or propensity which is on par with heterosexuality or should otherwise be regarded as normal" (Coleman, 1978).

In each of these instances and in many others to be recounted here, lesbian and gay male individuals or organizations encounter "judicial homophobia" (Dressler, 1979) as a direct result of their affirmation and expression of their identity or "personhood" (Gomez, 1983) as a member of a sexual minority.

This Article assumes that the legal struggles faced by lesbian and gay litigants almost invariably involve issues of freedom of expression. In one sense, this is a trivial and obvious truth. Gays are, after all, often described as an "invisible minority"; implicit in this characterization is the unlikelihood of suffering anti-gay discrimination in the absence of some kind of communicative action that ends the invisibility. Whether such an act takes the form of directly "coming out" to a potential employer (or landlord, etc.) or living an "openly gay lifestyle" that might by itself or through media coverage come to the attention of such an employer, issues of free speech and freedom of association are clearly implicated.

Perhaps a more substantive argument in support of the thesis that gay rights are, first and foremost, a First Amendment issue, would center not on the mechanism by which gays are "found out" but instead on the nature of the official reaction to such discovery. As Richards (1986) cogently points out, anti-gay prejudice cannot any longer be justified in an intellectually honest way on the basis of the traditionally asserted "harms" (homosexuality as unnatural, or as mental illness, or equated with pederasty, etc.). When such prejudice manifests itself in official sanctions, Richards argues, gays confront "the functional equivalent of a heresy prosecution" (p. 905).

Support for this view can be gleaned from social science findings in the area of anti-gay prejudice, which clearly indicate that one of the best predictors of such prejudice is an attitudinal rigidity concerning the family and gender roles. Lesbians and gays, according to this view, are devalued because they are perceived as agitators, questioning traditional roles (Lieblich & Friedman, 1985; MacDonald, 1976; MacDonald & Games, 1974; Siegel, 1981; Weinberger & Millham, 1979). As Richards (1986) puts it:

Homosexuality is today essentially a form of political, social, and moral dissent on a par with the best American traditions of dissent and even subversive advocacy . . . Those that support criminalization find today in homosexuality what they found before in the family planning of Sanger, the atheism of Darwin, the socialism of Debs, or the Marxist advocacy of the American Communist Party. (p. 905)

It is no surprise, then, that on the few occasions when the United States Supreme Court has reviewed a controversy involving gay rights, the First Amendment was implicated in almost every instance (Board of Education v. NGTF, 1985; Manual Enterprises v. Day, 1962; Mishkin v. New York, 1966; New York v. Uplinger, 1984; Pope v. Illinois, 1987; San Francisco Arts and Athletics v. United States Olympic Committee, 1987),

What follows, then, does not constitute an argument for the proposition that lesbian and gay male liberation necessarily should be seen as a First Amendment struggle; rather, the review of caselaw provided herein is offered as just that—a descriptive review of relevant litigation. It is hoped that a taxonomy of sorts will emerge from that review that may help us to sort out the communication-relevant facets of what one commentator refers to as "queer law" (Rivera, 1985, 1986).

Two points concerning the scope of this taxonomy should be made at the outset. First, the reader should be alerted that discussions of lesbian and gay speech as it applies to immigration and naturalization, the prisons, and the military will be eschewed here, although all certainly raise important and relevant issues for gay litigants (Fowler & Graff, 1985; Inosencio v. Johnson, 1982, aff'd sub. nom., Brown v. Johnson, 1984; "Miscellaneous News Notes," 1986, p. 59; Matthews v. Marsh, 1985; "Newsbriefs," 1987; Reynolds, 1980; Rivera, 1986). This exclusion is based upon the reality that the First Amendment, to the extent it has any impact at all upon those areas of law, surely applies with diminished force and would therefore require separate treatment.

Second, although this volume is devoted to sexuality and mass communication, the review of caselaw here will not be limited to legal controversies involving the mass media. Rather, we will try to examine all the caselaw from the gay rights movement that concerns the communication act, broadly construed. The decision to adopt this broader focus is based largely upon the fact that the most fundamental tenets of "media law" actually have their roots in landmark First Amendment cases from decades past that themselves did not involve media litigants. For example, while media lawyers often trace the "prior restraint" doctrine in First Amendment law (which claims that pre-publication censorship is even more odious than post-publication punishment) back to Near v. Minnesota (1931), a case that did involve the mass media, the philosophical basis for the doctrine can actually be found in Justice Brandeis' concurring opinion from the earlier Whitney v. California (1927) case, which did not deal with the mass media at all. Similarly, the notion that the broadcast media's obligation to provide for a "marketplace of ideas" would permit such special regulations as the Equal Time Rule and the Personal Attack Rule (Red Lion Broadcasting v. FCC, 1969), stems from an earlier invoking of the marketplace metaphor from Justice Brandeis's famous dissenting opinion in a World War I era Espionage Act case (Abrams v. U. S., 1919).

Numerous other examples could be cited, but instead suffice it to say that although the Supreme Court has on occasion suggested that the First Amendment applies with different force to the mass media and to face-to-face communication (e.g., Zauderer v. Office of Disciplinary Council, 1985), such cases are unusual, and the Court often has stated that the First Amendment should apply equally to mass media representatives and to ordinary citizens (Branzburg v. Hayes, 1972; Dun and Bradstreet v. Greenmoss Builders, 1985; Zurcher v. Stanford Daily, 1987). Thus it is no surprise that most of the leading textbooks in mass media law (Francois, 1986; Middleton and Chamberlin, 1988; Pember, 1987) boast lengthy chapters on the history and philosophy of the First Amendment, examining more than cursorily the landmark cases that may themselves not have involved the mass media but whose outcomes are nonetheless of importance to today's media litigants.

Keeping the above issues in mind, we are now ready to present a typology of free speech caselaw emerging from the lesbian and gay rights movement. The typology will begin on solid ground with the inarguable "free speech" cases, those which request the judiciary to come to terms with the most basic First Amendment values in the most traditional settings, what I refer to as the "access to a forum" cases. Next we will review the caselaw on freedom of association and the right to engage in symbolic conduct. A separate section will assess the relevance of the communication act to the protection of the rights of employees. The next area of caselaw to be confronted —that dealing with the constitutionality of sodomy statutes themselves—is typically not argued on First Amendment grounds, but is, it will be asserted here, by no means irrelevant to the study of communication.

Next we will examine cases in which the gay litigants are involved in free speech cases, but are cast in the role of anti-speech advocates, espousing the view that their rights are being abridged by the speech of others. A concluding section will offer thoughts concerning the efficacy, short-term and long-term, of arguing for lesbian and gay male rights as communication issues.

The "Pure" Speech Cases: Access to a Forum

Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation (1976) is one of those few cases whose citation alone gives a clear indication of the legal controversy involved. The state of Rhode Island was gearing up to do its part in commemorating the 200th anniversary of the Declaration of Independence. The gay plaintiffs wanted to participate by, among other things, having a parade, a prayer vigil, a town meeting, and a listing in the Foundation's director...