Free Speech Can Be Anti-Gay

Federal judge rules that public colleges cannot bar leafleting by groups whose views contradict anti-bias policies.

January 26, 2015

A federal judge has rejected a series of arguments from Waubonsee Community College about why it should be permitted to bar an anti-gay group from passing out fliers on campus.

The group's advocacy for positions that run counter to the Illinois college's anti-bias policies are not a legal justification, the judge ruled, and barring the group from leafleting would violate First Amendment principles. Judge Robert W. Gettelman ordered the college to come up with new policies this week that would not limit constitutionally protected free speech.

The request to distribute fliers came from a group called Heterosexuals Organized for a Moral Environment, which frequently goes by its acronym HOME. The group argues that gay relationships are immoral, that AIDS shows the dangers of being gay, and that the existence of gay people causes problems for straight people. "[T]he more homosexuals there are in the world the fewer potential mates for heterosexuals. And why would straight people want their choices of potential mates limited (especially by immoral lifestyles)?" says the group's website.

HOME asked Waubsonsee for permission to distribute two of its handouts: "The Uncensored Truth About Homosexuality" and "Gay Activism and Freedom of Speech and Religion."

Judge Gettelman did not dispute that the anti-gay views outlined in the fliers would promote policies that violate the college's anti-bias policies, which include sexual orientation as a status on which the college will not discriminate.

But not only did he find that the argument was inconsistent with First Amendment principles, he also said the college undercut its own claims that its policies on leaflets were content-neutral.

The judge quoted from a college letter to HOME denying the organization's request because its message was “in direct conflict with and disruptive of the college’s mission to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational enforcement, free of unlawful hostility.”

Wrote Judge Gettelman: "Reliance on WCC’s anti-discrimination policy to bar plaintiffs from leafleting controverts defendant’s argument that the decision to reject plaintiffs’ request was content-neutral. Instead, the content of plaintiffs’ speech, which the school considered to violate its anti-discrimination policy, was the precise basis for WCC’s decision. Consequently, the court finds that defendant discriminated against plaintiffs based on the content of their speech."

In a footnote, the judge wrote that the First Amendment was intended for all ideas. "[I]t is not popular ideas, accepted by all, that need protecting. It is unpopular, even offensive, ideas that our most closely held constitutional right seeks to shelter," he said.

The press office at Waubonsee did not respond to a request for comment.






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