Bil Browning

Anti-gay DC bus ads: Censorship or free speech?

Filed By Bil Browning | December 28, 2009 6:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: anti-gay, bus ads, buses, censorship, free speech, same-sex marriage, Washington D.C.

An interesting conundrum in the Washington DC area has two different groups of LGBT citizens lining up on opposing sides of a free speech issue. Stand For Marriage DC, an anti-gay group trying to reverse the recent decision to approve same-sex marriages in the nation's capitol, has started advertising on the sides of city buses.

This has Full Equality Now! DC up in arms. The group posted a statement to their website last week demanding that the bus authority remove the ads. Subsequently, another group of LGBT leaders (including the heads of local organizations like the ACLU, the Gay and Lesbian Activist Alliance and the LGBT Democratic Gertrude Stein Club) wrote to bus.jpgJohn B. Catoe, General Manager of the Washington Metropolitan Area Transit Authority, urging him to ignore Full Equality Now! DC's demand and continue to run the anti-gay advertisements. These folks cite the First Amendment's right to free speech.

This brings up a problem we've seen rear its head here on Bilerico Project before. The ads are offensive and denigrate LGBT people by advocating that our rights should be put to a popular vote. They suck and God knows how many LGBT people will have to see the ad drive past or ride one of the buses for transportation. But at what point do we measure "offensive?" At what point do we say that our right to censor someone outweighs their right to speak? I'd have to fall on the side of free speech. The proper response to speech you don't like is to give your own better speech.

Oddly enough, Full Equality Now! DC's website now says the letter was only a draft meant to spark conversation and wasn't actually sent to the bus authority. Sadly, while the bus advertisements weren't getting much of a look before, after the story became about the dueling LGBT groups fighting over the right to free speech, the ads have gotten a lot more exposure from news stories, blog posts and wire reports. Stand For Marriage bought some cheap bus ads; we gave them the publicity they needed to get them seen. Stupid.

The back-and-forth statements are after the jump.

From the Full Equality Now! DC website:

''The bus is a particularly painful place for these advertisements to be located, as they cannot be avoided. Because of these advertisements, countless LGBT citizens are forced to stare down discrimination as they board the bus to go somewhere or are even passed by an advertisement on the street. The irony is that public buses were the birthplace of another struggle for equality under law not too long ago. For LGBT citizens to have to experience discriminatory messages as they go about their daily life is unacceptable and must be stopped. For this reason, we demand that WMATA remove all advertisements posted by Stand for Marriage DC as soon as is possible.''

The letter from various LGBT leaders sent to the bus authority signed by Mitch Wood, President of the Gay and Lesbian Activists Alliance; Arthur B. Spitzer, Legal Director of ACLU of the Nation's Capital; Jeffrey D. Richardson, President of the Gertrude Stein Democratic Club; Aisha C. Mills, President of Campaign for All D.C. Families; Bob Summersgill, a Ward Three resident; Deacon Maccubbin & Jim Bennett, owners of Lambda Rising Bookstore; Bob Witeck, CEO of Witeck-Combs Communications, Inc.; Wayne Turner, Esq. a resident of Ward Six; and Robert A. Spiegel, Esq. a member of the ACLU:

It has come to our attention that the group Full Equality Now DC has launched an effort to persuade you to ban advertisements on Metrobuses or Metrorail by the group StandForMarriageDC opposing civil marriage equality for same-sex couples. (See the action alert from Full Equality Now DC, copied below.)

As supporters of civil marriage equality, we also embrace the principle of free speech enshrined in the First Amendment to the U.S. Constitution, which makes our own advocacy possible. Indeed, the then-named Gay Activists Alliance thirty years ago won a court battle against WMATA for the right to place educational posters in Metrobuses with the message, "Someone In Your Life Is Gay." WMATA is a quasi-governmental body and is thus subject to the First Amendment. We, the undersigned, therefore urge you to reject the misguided censorship advocated by Full Equality Now DC.

Free speech is not only for those whose beliefs we find acceptable. The proper response to offensive speech is more speech. Your proper response to Full Equality Now DC, therefore, is that those who object to ads by StandForMarriageDC are free to place their own.

Thank you for resisting pressures to favor or disfavor particular viewpoints, from whatever political direction they may come.

The clarification from Full Equality Now! DC:

The letter to WMATA previously posted on our website was a draft letter that has had several revisions over the past week and has yet to be finalized. To this day FENDC has had no correspondence with WMATA regarding the discriminatory Stand for Marriage DC ads. We posted the draft letter in the spirit of organizational transparency, to raise public awareness about the ads and to encourage community feedback on the matter. We regret not clarifying that the letter was a draft and that our intention was to gather community input before deciding how to move forward...

Full Equality Now DC stands by our position that we have the right to express our discontent with discriminatory advertisements, especially those placed on a publicly-funded transit system. Our intent was not to contest Stand for Marrige DC`s right to freedom of speech but rather to express our dismay at the content of their message as well as WAMATA`s decision to allow discriminatory messages on publicly funded buses. Furthermore we are hearten [sic] by the fact that our actions have created further dialog about LGBTQ rights and freedom of speech in the District.

So what do you think? Should the ads be taken down? What should we do about them? What's your solution?


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It is best to run an opposition campain to such theats outlining the fact that basic rights should not be put to popular vote by the majority aginst a minority. Illustrating fully our past history of denying rights of minority groups. American Indians, African Americans, intermint of Asian Americans during WWII, the Disabled... Do I need to go on? It's a target rich field. Be strong, be forcefull and truthful and ensure that everyone understands that they are a minority of one.

Bil, you are exactly right.

As I have commented so many times before:

(a) The opposition has a right to put out their message.

(b) We have the same right to put out a better message --- however, we will have to find a way to pay for it, just as they do.

(c) Unless the message is demonstrably damaging to the community at large, there is absolutely no sane reason why one group's message should be censored just because another group requests or demands it.

If we are wrong-headed enough to want to try to censor the opposition, then our best bet is a bus boycott --- and that might backfire, because our numbers might not be large enough to make a serious impact.

My suggestion is that Full Equality Now! DC should start a fundraising campaign and then implement counter-advertising --- preferably side-by-side on the exact same buses, if possible. It is apparent that a ballot campaign to rescind is in the works, and we might as well clip it in the bud right now.

Don Sherfick Don Sherfick | December 28, 2009 8:51 PM

It's unfortunate to say the least that when it comes to the First Amendment, some of our own folks can be just as bad as our ideological opponents.

Although I do not speak for Full Equality Now DC (FENDC), I have been very involved in the activities that led up to this controversy.

While I personally believe that my friend and fellow activist, Rick Rosendall of GLAA, has got himself on the wrong end of this argument, I understand some of his reasons and motivations are driven by his own personal history as a successful activist for LGBTQ free speech. Someday soon I hope to have a private conversation with Rick about all this.

In the meantime, however, this has clearly touched a nerve in the LGBTQ 'hood, with results reminiscent of other similar reactions by the Queer Establishment to spontaneous grassroots activity, which have been many, going back to the initial rejection of the Stonewall experience by the establishment over 40 years ago. Also, us drama queens love a good catfight almost as much as a dance party.

I know my friends in FENDC love and respect the first amendment as much as any group that has been systematically denied civil and human rights for centuries. On the other hand, we realize that no right is absolute. The gift of freedom and liberty carries with it a responsibility to respect the rights of others. And it is this responsibility that WMATA has failed to live up to.

In what way does the first amendment guarantee the right to a private party to use a taxpayer-supported vehicle to promulgate speech encouraging violation of the law, rejection of elected civil authority, disdain for the decisions of the courts, and vicious persecution of a minority in direct opposition to the guarantees of the 14th amendment?

FENDC is on good legal and moral ground in opposing the ads. Anyone with a grain of common sense can see the issue. The 1st amendment counterargument is worthy of discussion, but should not be used as a vehicle for one organization to try to publicly piss on another that presents them no challenge, just a fresh approach to an ancient theme.

My message to HRC, GLAA, and all the rest is this:

I love you for having been there, for what you have accomplished, and for what you are trying to do. I support the good in what you do. I may not agree with everything, but I am willing to forgive and move on. After all, we share a common noble purpose. But take note, as Adam Lambert put it so clearly in his LGBTQ anthem, "Masterplan":

I hope you'll see
Things ain't what they used to be
Look at the face...

We are the face of a new generation
We are the ones who have no reservation
Don't give a damn 'bout your cold calculation

Welcome to the masterplan
Don't care if you understand
Don't care if you understand
Welcome to the masterplan

There is definitely a discussion possible here. The First Amendment isn't absolute, you're right, although silencing a certain viewpoint is different from restricting a certain medium or time, place or manner, or just collecting information on campaign finance.

In what way does the first amendment guarantee the right to a private party to use a taxpayer-supported vehicle to promulgate speech encouraging violation of the law, rejection of elected civil authority, disdain for the decisions of the courts, and vicious persecution of a minority in direct opposition to the guarantees of the 14th amendment?

I have to disagree with you there. I don't really have a problem with a group that disagrees with the courts or the Constitution or "civil authority." We do all the time - I know I'm not the only LGBT person to think that the courts are wrong (like in Bowers or in the prop 8 appeal from earlier this year), that the 14th Amendment is wrong or incorrectly interpreted (like how corporations get more 14th amendment protection than LGBT people), or that "civil authority" should not have the final, deciding word on political matters and should sometimes get voted out of office for their views on specific issues.

I don't see anything in the ad "encouraging violation of the law," though. While the current law in DC, as I understand it, doesn't allow for a vote on same-sex marriage, saying "let the people vote" won't create an illegal voting syndicate that will run an illegal election that will usurp the power of the current law. Plus sometimes the law should be broken, although, I agree, if that's what they were actually advocating it shouldn't be organized on government property.

The fact that the bus line is taxpayer-funded is all the more reason that it should not favor one viewpoint over another in a political discussion. I assume that the busline will sell ad space to both sides at the same price --- and that's the way it should be.

The best way to combat it: a series of adverts using the same look'n'feel:

Let the people vote... on mixed marriage
Let the people vote... on segregation

etc etc

The way to combat bad ideas is not by suppressing them: but by rebutting them with good ones.

There's an org that's actually called "Full Equality Now!" complete with an exclamation point? Lord, take me now!

Not surprised by their reaction to the bus ads. Of course the issue is more complicated than "free speech" since political speech, advertisements, and ads that appear on public property are all regulated forms of speech. Still, though, they're not regulated when it comes to viewpoint, which is what makes this sort of censorship offensive to me. Ban all political ads from the buses or none. Ban all ads from buses or none. Ban all ads from public transport or none. But don't just pick one viewpoint as offensive and ban it.

Of course a group whose goal is "Full equality now!" isn't going to see it that way. The goal of formal equality under the law (plus the protections black people got because they're a real minority and everyone needs to see that we're a real minority too just like them) and absolutely nothing else blinds people to larger political questions like "Do we really want the government deciding what viewpoint is offensive or not?" Consider:

The irony is that public buses were the birthplace of another struggle for equality under law not too long ago.

The Civil Rights Movement, as far as I know, wasn't about equality. It was about liberation. Did MLK call out "Equal at last, equal at last, Thank God Almighty, we are equal at last!"? Um, no. Equality as a goal is a product of forty years of movement conservatism making us internalize authoritarianism, contemporary society's inexperience with life before biopower, and two decades of privilege-based ID politics movements destroying our collective imaginations about what we could be fighting for.

Is our goal to make things better for LGBT people? Is it to win marriage? Or is it part of a broader movement to change the way power acts? I hope it's the last one, but situations like these remind me that, to a lot of LGBT folks, it's all about "Gimme, gimme, gimme."

I think most have said what I was thinking. Censorship is wrong, no matter who does it. Just need to be smarter and out of the box. We can't be aggressive as that will turn people away. Your dealing with educated people who know how to turn the uneducated around. Do not censor, free speech is what we have fought for and I will fight for it.

Jonathon Edwards | December 29, 2009 1:24 PM

Hi,

I'm sorry, but am I the only one in the room that thinks there is a bigger problem here than the 1st Amendment? Dan alluded to it with his reference to the movement leadership rejecting much of what happened at Stonewall in favor of assimilation and Alex is right on when he says that the issue isn't equality, its liberation.

And in the midst of all that, I don't really give a damn about the 1st Amendment. WE aren't protected by the 1st Amendment when our relationships are supposed to be kept quiet or silent. WE aren't protected by the equal protection clause of the 14th Amendment. I could go on and on. Right now the Bill of Rights has about as much value for me as a gay man as the toilet tissue in my bathroom.

And until that changes, my first loyalty is to my GLBT brothers and sisters. Which means: I am not going to work to undermine the efforts of another group of GLBT people even if their tactics are different from mine. I may disagree with them privately, but out in the public square, no way.

Because see, what's happened here? We have communicated a couple of things very loudly in this little brouhaha - and all the others for the last 40 years where one group of GLBT people put down the work of another (Queer Nation, ACT Up, HRC, NGLTF, etc. at each others throats). First, in-house we have once again made it clear that GLBT folks don't have each others back, weakening our community and leading to mistrust within our ranks. Second, we have communicated to our enemies that we are a divided people, easily conquered.

Until that gets fixed, we will continue to be fed table scraps.

twinkie 1 cat | December 29, 2009 7:36 PM

Sometimes people just don't understand that freedom of speech has to be for everyone and that you only strengthen your own rights by allowing idiots to have theirs. It shows you are better than they are.

The appropriate response to the ads is bigger, better, and more colorful ads that support gay marriage. Maybe a reminder of the Jim Crow era laws against misencagnation would be appropriate to include because it would directly confront the black conservatives as well as white ones.

The most important thing is for the gay community not to give the conservatives anything they can use for a fund raising device. One of their favorite fundraising issues is "the attack on Christianity by homosexual activists". They would love to have hard evidence of an attack on freedom of speech to go with that.

When some antigay activists demonstrated in front of my predominantly gay church, we offered them cold water (on a very hot day) and told them they were welcome to come in and worship with us. They went away shortly.

I agree that first amendment rights of all sides to the debate must be respected. Censorship is wrong in any public forum. But the real issue here from a legal standpoint is whether the advertising platform provided on busses operated by an agency of the government constitutes a public forum. Certainly a private broadcaster has no obligation to accept paid advertising from groups who have messages which it finds offensive--this would violate the broadcaster's free speech right. Certainly, there would be nothing wrong if a private taxi cab owner refused to accept paid advertisements from groups whose message the taxi cap owner opposes. The question here is whether a public bus, operated by a public agency, would violate first amendment rights if it refused to accept paid advertisements from anti-gay groups. I think the answer is fairly clear---the advertising platforms provided on public buses do not constitute public forums. While everyone has the right to equal access in a public forum, not every governmentally operated property where speach occurs is a public forum. Thus, Congress can decide to hold sessions that are closed to members of the public. Government agencies also have rights of free speech--and they have the right to assure that their facilities are used to further their governmental missions. Thus, in my view the bus company and the officials who run it had no obligation to accept the anti-gay ads, and refusal to run those ads would not result in a first amendment violation. I am not necessarily saying that the ads should have been rejected--the money generated by them may serve useful purposes. And I agree that the better approach would be to accept ads from both sides. But there would have been no first amendment violation if the bus company refused to accept the ads

Robert Spiegel | January 10, 2010 10:04 AM

The issue in question has to with the proper interpretation of free speech guarantees under the First Amendment to the US Constitution. The Supreme Court has been extraordinarily consistent in its rejection of government censorship of speech based on content.
Though television stations may be regulated by a federal agency such as the Federal Communication Commission and taxicabs may be overseen by state or local limousine departments, that in no way alters the fact that they are private entities.
Meanwhile, it is now well established that public transportation systems such as trains and buses are arms of the government which was not an inconsequential matter when it came to desegregation.
Congress closing its sessions to the public has nothing to do with content based censorship.
Given that proposed censorship has more often threatened freedom of expression on the part of labor organizers, antiwar protesters, civil rights workers, feminists and LGBT activists such as myself rather than that of our adversaries, we who have actually participated in social justice movements are thankful that the Supreme Court has carved out few exceptions to the First Amendment.
Your analysis (if it can indeed be called that) is another example of the LGBT community showing total ignorance of Constitutional precedents, constructions and interpetations.
Other examples would include totally nonsensical statements regarding the Full Faith and Credit Clause and the doctrine of "separate but equal" in connection with the Same Sex Marriage debate.
Not to mention that LGBT isolation or separation from the concerns of others subject to bias and prejudice has put it totally out of touch with other social movements in this country.
As Santayana said: "those who do not learn history are doomed to repeat it."

Don Sherfick Don Sherfick | January 10, 2010 12:05 PM

THANK YOU ROBERT!

Not that I agree totally with all of your points, but with what needs to be said concerning a lot of "wishful thinking" from many in the LGBT community concerning the state of settled or nearly settled law concerning First Amendment matters, etc.

Whether we like it or not concerning such things as First Amendment matters, or interpretation of the federal Equal Protection Clause, our system operates with a recognition of judicial precedents. Often those outside of the legal community simply think that if you just click your heels and recite "equal rights" or "equal protetion" long enough, magical things happen.

I'm not saying that arguments seeking to overturn precedent cases ought to be abandoned. They ultimately worked, for example, when the Supreme Court reversed itself in the sodomy cases.

But I am saying that we get nowhere, and sometimes lull ourselves into dangerous complacency when we simply utter nice sounding slogans and bashing Justice Scalaia, for example, as if that in and of itself is going to change the established legal landscape.

I wish that were so but it isn't.

At the risk of being accused of operating a mutual admiration society: THANK YOU DAN!

May I say that I share many of your concerns. I am very disappointed that LGBT lawers as well as sympathetic Straight ones have not done a better job in educating the community about the law in general and judicial precedents in particular.

Of course, I had no objection to the overturning of the sodomy laws for which I had been agitating for more than 40 years. But I am sure that you know, it is uncommon for the Supreme Court to reverse itself in such a short span of time.

Should Same Sex Marriage cases make their way to the Court -- as they almost certainly shall -- a ruling against the LGBT community will not only have serious legal repercussions but I fear will be psychologically and politically devastating.

Furthermore, those who have spent some time in movements for social justice realize that there are times for litigation strategies and times for legislative ones. Many people focus on Brown v Board of Education while forgetting Congressional passage of the Civil Rights laws in the 1960's.

Movement history demonstrates that antagonizing one's adversaries and alienating one's friends are not the best ways to achieve one's objectives.