Humanities

Review of Walter Frank, "Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy"

Sixty years ago this month, the U.S. Post Office declared a small journal called ONE: The Homosexual Magazine, published in Los Angeles, to be obscene and thus unlawful to distribute through the mail. All copies of the latest issue were seized and presumably destroyed.

The editors -- having already endured a letter-writing campaign from the Federal Bureau of Investigation that tried to get them fired from their day jobs -- cannot have been that surprised by the postal service’s move. Still, the characterization of ONE as “cheap pornography” (in one judge’s words) was ludicrous. Recent issues had included articles on police entrapment, Walt Whitman, and attitudes toward homosexuality in Britain throughout history. The editors also published a sonnet by William Shakespeare and a salute to the “history-making TV appearance [of] Curtis White of Los Angeles [who] personally stated that he is a homosexual.”

By no stretch of the imagination was it fair to call ONE obscene. At worst, it was feisty. But that was much the same thing at a time when “homosexuals were virtually without constitutional rights,” as Walter Frank put it in Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy (Rutgers University Press). The turning point came when the Supreme Court overruled the USPS ban on ONE in 1958. The decision was little-noticed at the time -- and it doesn’t even register as a blip in the general public’s historical memory, in which the gay rights struggle began, more or less, with Stonewall. 

The Supreme Court decision ran to one sentence and cited the Court’s ruling in Roth v. United States, two years earlier. The author of Law and the Gay Rights Struggle is co-chair of the Law and Literature Committee of the New York County Lawyers Association, and takes for granted closer familiarity with Roth v. U.S. than most non-jurists will possess. (I could have told you that the plaintiff was Samuel, a publisher of girlie magazines, and not Phillip, the novelist -- though not much more.) But upon looking up the decision, it’s fairly easy to spot what has to have been the crucial passage with respect to ONE

“Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”

That it is. And a major strategy of early gay-rights advocates was to insist on the “absorbing interest to mankind through the ages” part with respect to same-sex desire. (Hence the Shakespeare sonnet in ONE.)

Frank’s purview is narrower, and a lot more democratic. He focuses on the seven decades following the end of World War II – a period in which the struggle for equality moved ever more in the direction of grassroots activism and demands for respect in everyday life. Identifying the illustrious gay dead gave way to more mundane but urgent priorities, like securing hospital visitation rights and protection from housing discrimination.

About half of Law and the Gay Rights Story consists of a succinct overview of how gay and lesbian communities and institutions took root within, and against, “a society that had simply decided to place certain people beyond its protection.” In a provocative formulation (I mean that in a good way) Frank writes that “discrimination itself could remain in the closet because gays themselves were not willing to come forward in sufficient numbers or with sufficient energy to contest it.”

A couple of generations of historians have studied how that situation changed – how the numbers and energy accumulated, and began to make a breach in a system that had effectively limited gays and lesbians to two choices, celibacy or criminality. Frank draws on and synthesizes the social and cultural historians’ work without claiming to go beyond it.

He does build in a distinctive periodization, however, by dividing the past few decades of gay-rights struggle into three phases or waves. The first and longest subsumes everything from ONE to Stonewall to the assassination of Harvey Milk: a cycle of growing confidence and assertiveness, coming to an end around the point when reports of a “gay cancer” emerged in 1981. His second period is defined by the AIDS crisis, in which government neglect and anti-gay political sentiment made the gay struggle largely defensive. A third wave, beginning in the early 1990s and continuing through the present, has seen something of a revival of the first period’s vigor but an even more remarkable growth of acceptance of claims for legal equality -- with the Supreme Court defining as unconstitutional both anti-sodomy laws and the Defense of Marriage Act’s definition of marriage to exclude same-sex couples.

In recent years, Frank writes, “concepts of freedom and equality began to overlap in a way they did not in the first phase, when gays were fighting for the right to celebrate themselves without fear and to be allowed some measure of dignity…. The equality that gays have been fighting for in this [most recent] phase concerns all the freedoms that most people take for granted, including the freedom to marry. As that argument has taken hold, the tide of public opinion has shifted, and with it the terrain on which the battle has been fought.”

In other remarks, the author seems perfectly aware of the potential for backlash. Consider the point of view expressed by a voter regarding an anti-gay ballot initiative: "I don't think being gay is right. It's immoral. It's against all religious beliefs. I don't agree with gays at all, but I don't think they should be discriminated against."

Frank cites this arresting blend of sentiments in a context suggesting that it demonstrates a slow growth of tolerance in seemingly inhospitable circumstances. That's one way to look at it. But politics is always a struggle to shift the terrain on which the battle is being fought, and reversals do occur. That said, I'd like to imagine that the person who contributed to ONE under the name Herbert Grant is still alive and well. In 1954, he wrote an article that might well have been the last straw for the authorities. In it, he proposed that same-sex couples be allowed to marry.

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Essay on how to get the most out of a conference

Conference coming up? Mandi Stewart offers tips for making the most of it.

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Is American Studies Association changing its boycott of Israeli academe?

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Recent statements from American Studies Association have some questioning whether the group is softening its boycott of Israeli academe.

Budget concerns spur changes to NEH summer seminars

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Following criticism from a politician and facing uncertain funding in the future, the National Endowment for the Humanities drops some international programs.

 

Article on studies of size of Google Scholar

Google Scholar will be 10 years old as of next month. Also coming up fast, early in the new year, is the 10th anniversary of the launching of Inside Higher Ed. Just to be totally clear about it, they were completely unrelated developments, though I do seem to remember each being met with skepticism and reservations, in some quarters. Certain senior academics insisted on calling them both “blogs.” (It was a simpler time.)

Suffice it to say that the beta days soon passed. The world of higher learning has grown ever more dependent on the internet’s intricate system of tubes -- with the academic web now serving as publishing platform and archive, and also as a point of access to restricted or proprietary digital collections. In principle, at least, we ought to be able to determine the dimensions of the scholarly web: how many items it contains (papers, dissertations, conference recordings, etc.), in however many formats, and with whatever depth of indexing and degree of retrievability. But actually taking the measurements is another matter. They belong to the epistemic category Donald Rumsfeld so aptly dubbed “the known unknowns.”

How about posing a narrower question, then? Just how big is Google Scholar? As with the company’s search-engine algorithms, that information remains a trade secret. But a couple of recent studies have tried to sound the depths of Google Scholar – using GS itself.

The earlier of the papers is “The Number of Scholarly Documents on the Public Web” by Madian Khabsa  and C. Lee Giles, published in May by PLOS One, the online open access journal. Lee is a professor of information and computer sciences at Pennsylvania State University, University Park, where Khabsa is a Ph.D. candidate in computer science and engineering.

Their study, conducted in early 2013, started with a pool of 10 papers each from 15 categories used by another search engine, Microsoft Academic Search. The fields covered were agriculture science, arts and humanities, biology, chemistry, computer science, economics and business, engineering, environmental sciences, geosciences, material science, mathematics, medicine, physics, and social sciences, plus multidisciplinary. The researchers then requested from both Google Scholar and Microsoft Academic Search a list of the distinct incoming citations to each paper. That is, if paper X cited a target paper seven times, it counted only as one citation.

“Overall,” Khabsa and Lee report, “we obtained 41,778 citations from MAS and 86,870 citations from Google Scholar,” including all the metadata available: “the document's title, list of authors, number of citations, year of publications, and the venue of publication (if available).”

The format and range of metadata are not standardized, but with some effort the results from the two search engines could be compared to determine how many items appeared in both -- as well as the number GS had but MAS didn’t, and vice versa. The researchers also determined the degree of overlap in each of the 15 fields, and the percentage of papers available without payment or subscription.

At the time of the experiment, MAS claimed 48.7 million records. Taking into account the degree of overlap, the researchers “estimated Google Scholar to have 99.3 million documents, which is approximately, 87% of the total number of scholarly documents found on the web,” which they determine to be some 114 million items in English, with about a quarter of them freely available.

The share of open-access material varies considerably between fields, of course. At the low end is agricultural science, with 12 percent. Computer science is in the lead, with half of scholarly publications being freely available. (The percentages are broken down by field in the paper’s second table.)

In July, Enrique Orduña-Malea and three other researchers in Spain published “About the Size of Google Scholar: Playing the Numbers” through the site arXiv. The paper begins with an assessment of the methodology and findings of Khabsa and Lee. In particular, Orduña-Malea et al. stress “the low indexation of institutional repositories on Google Scholar” and the GS policy of not indexing files over 5MB, “a procedure which is especially critical for doctoral theses).” They suggest that the earlier study probably underestimates the size of the academic web – even of its strictly Anglophone component -- while overestimating how much of it Google Scholar indexes.

The authors go on to describe a battery of tests designed to measure GS “from the inside,” so to speak. Generally this involved performing searches for particular kinds of documents or search terms, using different temporal filters. For example: the search could be made for patents and citations issued in a century, then by decade within that century, and the result compared.

An intriguing variant is what the authors call an “absurd query,” in which the search is for a very common word likely to be found in most documents, with variations on the search parameters, including temporal filters.

The Khabsa-Lee study came up with the estimate that Google Scholar indexed 99.3 million documents in English. Extrapolating from that, with English accounting for 65 percent of GS material, Orduña-Malea et al. determine that the Khabsa-Lee method yields a total Google Scholar database of 152.7 million documents. (Despite their critique, the authors call Khabsa and Lee’s work “novel and brilliant.”)

The methods that Orduña-Malea and his colleagues tried were not restricted to English-language scholarship. Their findings varied from a low of 126.3 million documents in Google Scholar to a high of 176.8 million.

For their part, the Spanish researchers conclude that a judicious estimate would be in the neighborhood of 160 million items. “However,” they write, “the fact that all methods show great inconsistencies, limitations and uncertainties, makes us wonder why Google does not simply provide this information to the scientific community if the company really knows this figure.”

It’s a fair point, and one the company should answer. Its 10th anniversary might be a good time for Google Scholar to give its users the gift of transparency.

 

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Opponent of Israel boycott is accused of uncivil conduct

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A professor's comments opposing the American Studies Association's boycott of Israeli universities became the subject of a disciplinary investigation at Fordham University.

Essay on the mismatch between graduate programs at research universities and hiring needs at most colleges

Paula Krebs writes about the need for graduate programs at research universities to learn about the colleges that will actually employ their new Ph.D.s.

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Essay argues that recent statements by college leaders about civility are a threat to academic freedom

In his "Civility Manifesto" published here last week Cary Nelson cites my blog post, "Is Incivility the New Communism?," as "particularly hyperbolic" in its critique of efforts by some university administrators to demand that free speech be limited to expression they deem "civil." In his own expression Nelson himself has been known to employ hyperbole -- as well as sarcasm -- even to the point that some might call uncivil, so it's surprising he does not recognize that my exaggeration was intentional. Of course, we are not living through a new Red Scare on campus. But the point is that we could be if the incivility monitors have their way.

Nelson asks, "does unrestrained antagonism make for the best learning environment?" It surely does not. But that isn't the issue. No reasonable person welcomes hatred, harassment, or violence. According to Nelson, "Eloquence in the service of conviction does not require abusive rhetoric or personal accusation." But, like it or not, free speech does not require eloquence. It's one thing to encourage civil conduct and reasoned discourse, quite another to regulate expression in the name of such encouragement. But that is precisely what too many college and university administrators and trustees are threatening to do. The threat to free speech rights is real.

Take, for instance, the widely criticized statement by University of California at Berkeley Chancellor Nicholas Dirks, which called civility and free speech "two sides of the same coin." The Council of UC Faculty Associations correctly responded that "while civility and the exercise of free speech may coexist harmoniously, the right to free speech not only permits, but is designed to protect uncivil speech." A group of veterans of the Berkeley Free Speech Movement, the 50th anniversary of which the campus is celebrating, replied: "It is precisely the right to speech on subjects that are divisive, controversial, and capable of arousing strong feelings that we fought for in 1964."

But we needn't go further than Nelson's own campus for the most chilling example of an effort to invoke civility as a criterion of free expression. According to University of Illinois at Urbana-Champaign Chancellor Phyllis Wise, “What we cannot and will not tolerate at the University of Illinois are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” This extraordinary dictate goes well beyond encouraging civil communication. Under Wise's disturbing standard a biologist who "demeans" creationism could be out of a job; indeed, the evolutionary viewpoint itself, which creationists claim demeans humanity, could be banned. 

While Dirks later clarified his ill-considered statement, Wise has not. Indeed, the Illinois Board of Trustees quickly declared its "collective and unwavering support of Chancellor Wise and her philosophy of academic freedom and free speech tempered in respect for human rights.” According to the board, UI must be a “university community that values civility as much as scholarship.”  We know who should assess scholarship: the scholars.  But who will judge what is civil?  That is precisely the issue. 

Nelson is correct that much of the uproar over civility stems from the Palestinian/Israeli dispute and I share his concern about the corrosive effect of that seemingly intractable conflict on both the campus climate and academic freedom. We differ sharply, however, about who is responsible. According to Nelson, only one side is to blame: "verbal excess, aggression, and ad hominem attacks are part of the standard repertoire of the Boycott, Sanctions, and Divestment movement. That typically stimulates raised tempers and sometimes similar behavior on the pro-Israeli side."

But the situation is more complicated. Elements on both sides invoke the protections of academic freedom and the First Amendment when it benefits them and violate these when it doesn't.  What about efforts by some supporters of Israel to effectively blacklist faculty members whose views on Middle East studies do not comport with theirs?  This move is truly evocative of the Red Scare and more threatening to academic freedom and the independence of the universities than a few "uncivil" words from pro-Palestinian students.

More important, the two sides are not in equivalent positions. Although support for the Palestinian cause is greater on American campuses than in society in general, those who control the universities -- administrators and trustees as well as powerful donors -- are most likely to support the Israeli cause. The expressive weapons of those in power and those without power almost always differ. It is usually the powerless whose voices must be shrill, who may break rules to be heard, who, in short, may be uncivil. Civility, however, can be a privilege of the powerful, whose control over institutions often leads them to silence opponents instead of engaging them. As Greg Lukianoff of the Foundation for Individual Rights in Education noted, in his experience "campus administrators are most likely to deem as 'uncivil' speech that criticizes them or the university’s sacred cows." 

This imbalance is illustrated by events at Ohio University, which Nelson cites as an example of "uncivil" expression escalating to arrests. Nelson ignores, however, what preceded these arrests. A student government leader filmed a video in which she poured fake blood over herself to protest Israeli actions in Gaza. The video was bold and even graphic, but under the law it is protected speech and as a video abused or threatened no one. The student, however, received numerous death threats. How did the university president respond? In a mealy-mouthed statement he disassociated the university from the video and called vaguely for civility, but remained silent about the death threats, effectively coming down on one side of the controversy. Only later were four pro-Israeli students arrested for disrupting a meeting, which suggests that lame public calls for civility are also largely ineffective.

"When administrators urge us to be models of civility they are doing exactly what their job requires," Nelson declares. I agree, but the danger to which I and so many others have been responding is that such urgings show undeniable and dangerous signs of becoming requirements. And such requirements may threaten academic freedom and free speech as much as any loyalty oath.

 

 

Henry Reichman is first vice-president of the American Association of University Professors and chair of AAUP's Committee on Academic Freedom and Tenure. He teaches history at California State University at East Bay. 

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Essay on the importance of word choice in the academic job search

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Slight changes in phrasing can make all the difference in networking, cover letters, interviews and your mindset about a job search, writes Joseph Barber.

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Essay defending the value of civility in higher education

Social media and the blogosphere have been awash for weeks with outrage that university chancellors and presidents are urging their faculty and students to conduct campus debates in a civil manner. The debates in question are mostly about the Arab/Israeli conflict, debates that have intensified since this summer’s war in Gaza. Those who relish their free speech right to denounce one another are taking umbrage at any suggestion that reasoned discussion might benefit from reluctance to indulge in mutual hatred.

Printed posters carried aloft in a September demonstration at the University of Illinois at Urbana-Champaign read “Civility = Silence. Silence = Death.” In a particularly hyperbolic move, Henry Reichman, chair of the American Association of University Professor’s Committee A on Academic Freedom and Tenure, claimed that charges of incivility are being used to silence faculty members in the same way that accusations of communist sympathies were used to silence them during the McCarthy period of the 1950s. Historical comparisons should be carefully justified. This equation is at best frivolous; at worst it risks fomenting unwarranted feelings of victimhood.

Faculty members and students share with all Americans the right to indulge in uninformed and intemperate speech. Social media provide them with effective means for doing so. But does unrestrained antagonism make for the best learning environment? Does it advance knowledge in the way higher education is pledged to do? Does it train students to evaluate evidence dispassionately? Does it prepare students to participate productively in public life? Does it help students learn that it is possible, indeed preferable, to be zealous in advocating a point of view without vilifying or trying to silence those who differ?

These effects include long-term consequences. The immediate effects of uncontrolled campus hostility can be more dramatic. We have already seen intemperate campus speech escalate toward violence. That happens most often with debates over Israel. Indeed verbal excess, aggression, and ad hominem attacks are part of the standard repertoire of the Boycott, Sanctions, and Divestment movement. That typically stimulates raised tempers and sometimes similar behavior on the pro-Israeli side. Nothing good comes of these confrontations.

We have recently seen campus passions cross the line into a moment of physical violence at Temple University. We saw extreme speech and symbolic action degenerate into threats, accusations, and even arrests at Ohio University. If we add to the list instances when campus groups sought to undermine academic freedom by denying invited speakers the right to speak the list of examples would grow. A silent protest at a lecture is a dignified act of moral and political witness. A brief noisy demonstration that ends after a minute registers passionate discontent but preserves academic freedom. Both of course require group discipline. A vocal demonstration that blocks a lecture abandons civility and undermines the purpose of higher education.

A certain portion of the American left now regards civility as a bland form of corporate speak. Or, worse still, as an Orwellian effort to stifle academic freedom. And the far right thrives on hostility and ad hominem attack. Our divided national political culture can hardly be said to encourage anything different. But should a campus try hard to emulate Washington?

Academic freedom does indeed protect both current faculty members and students from institutional reprisals for deplorable speech. But it was never intended to protect people from criticism for what they write and say. Uncivil students and faculty at a university should not be punished. University presidents who urge civility are not trying to stifle dissent or suppress speech. They are trying to make the campus an oasis of sanity. They are trying to urge faculty and students to showcase productive dialogue. That is part of what higher education owes the country. That is part of the cultural and political difference higher education can make.

Civility does not preclude passionate advocacy. It doesn’t preclude devices like irony and humor. Nor does it mean ideas and arguments cannot be strongly expressed and severely criticized. Civil discourse need not be bland. Civility should lead us to treat people with respect, but it doesn’t mean that all arguments or ideas merit respect. Eloquence in the service of conviction does not require abusive rhetoric or personal accusation. It does not require us to claim we know what is in one another’s hearts and to indict people on that basis. It does not require us to demonize our opponents unless we believe they are beyond hope and fundamentally corrupt or evil, a perspective not likely to apply to campus colleagues. Campus speech that harasses, bullies, or intimidates cheapens our communities and diminishes their value.

When administrators urge us to be models of civility they are doing exactly what their job requires. Civility does not mark the boundaries of free speech protection. But it helps describe how we can most often relate to one another productively. Voluntary civility is the best way to conduct difficult debates, but it is not a limit on permissible speech. Faculty members need to teach by example. They need to take the lead in demonstrating what good citizenship entails. Unfortunately, far too many faculty members are doing precisely the opposite.

The Arab/Israeli conflict gives continuing evidence of how inflammatory rhetoric in the Middle East can lead to actual violence. It is thus both sad and ironic to see our campuses conduct debate on the subject as if campus debate amounted to war by other means.

Cary Nelson served as national president of the American Association of University Professors from 2006 to 2012. He teaches at the University of Illinois at Urbana-Champaign.

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