Vol. 9 No. 8 (August 1999) pp. 360-363
SEX/GENDER OUTSIDERS, HATE SPEECH, AND FREEDOM OF EXPRESSION: CAN THEY SAY THAT ABOUT ME? by Martha T.
Zingo. Westport, CT: Praeger Publishers, 1998. 232 pp. $55.00 Cloth. .
Reviewed by Thomas R. Hensley, Department of Political Science, Kent State University
An enormous body of literature exists regarding freedom of expression under the United States Constitution, and
a growing literature can be found on the gay rights movement. Martha Zingo's book joins together these two topics
by analyzing the question of whether hate speech directed toward sex/gender outsiders is constitutionally protected.
Zingo defines sex/gender outsiders as lesbians, gay men, bisexuals, and transgenderists. Her answer to the question
is yes, hate speech directed toward sex/gender outsiders does fall within First Amendment protection according
to the major decisions of both the United States Supreme Court and various lower courts.
Although Zingo writes passionately about the problems of discrimination and animosity faced by sex/gender outsiders
in the United States, she argues that hate speech laws are not an effective solution to the verbal assaults faced
by lesbians, gay men, bisexuals, and transgenderists. Her analysis of past and contemporary government laws and
policies convinces her that the government is more of a problem than a solution; ". . . federal laws, far
from protecting sex/gender outsiders from discrimination, reinforce and institutionalize prejudices existing in
both the private and public sectors of society with regard to gender identity or affectional orientation/preference"
(p. 3).
Instead of advocating government hate speech laws, Zingo argues in favor of freedom of expression as the best solution
to hate speech. She recognizes that this approach is not fully satisfactory, but she argues that it is the best
of the available options. Hate speech laws will not affect the underlying negative attitudes about sex/gender
outsiders held by members of the dominant culture, and they can provide another means to limit freedom of expression
by sex/gender outsiders.
In the introductory chapter to her book, Zingo discusses briefly the social and legal condition of sex/gender outsiders
in the United States. She presents an effective argument regarding the discrimination, harassment, dehumanization,
and violence faced by lesbians, gay men, bisexuals, and transgenderists, and she also argues effectively that all
branches and levels of government have contributed to these problems rather than alleviated them. Against this
background she poses the central question of her book: are government hate speech restrictions an effective way
of combating some of the problems faced by sex/gender outsiders? In the remaining chapters of the book she explains
why her answer to this question is no.
Zingo's overview of freedom of speech and the hate speech controversy in Chapter Two is the best section of the
book. After providing a brief overview of the history of freedom of
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expression in the United States, She presents an interesting and insightful analysis of the hate speech controversy
by focusing upon three varying positions within this debate: the civil libertarian approach, the civil rights orientation,
and the accommodationist position. The civil libertarian approach opposes hate speech laws, emphasizing the importance
of an individual's freedom of expression. In contrast, the civil rights position supports certain types of government
hate speech regulations, emphasizing the Equal Protection Clause of the Fourteenth Amendment and Title VII of the
1964 Civil Rights Act. The accommodationist school occupies a middle position in this debate, opposing sweeping
group libel laws but favoring a limited range of narrowly-drawn hate speech regulations. Having summarized the
arguments of leading scholars and jurists associated with these three camps, she concludes her second chapter by
discussing the unique importance of freedom of expression for sex/gender outsiders, establishing her position as
an advocate of the civil libertarian approach.
In Chapter Three Zingo moves beyond First Amendment freedom of expression concerns to consider equality jurisprudence.
She presents a convincing argument that the courts have not interpreted either the Equal Protection Clause or
Title VII to provide legal protection against discrimination directed toward sex/gender outsiders. Although she
is pessimistic about the utility of the Equal Protection Clause and Title VII, she offers a novel argument that
the Free Exercise of Religion Clause might be utilized effectively to combat discriminatory practices against sex/gender
outsiders. Her argument stated succinctly is that many parallels exist between religious identity on the one hand
and gender/sexual identity on the other hand; because this is true, discrimination against sex/gender outsiders
should be subject to the standard of strict scrutiny associated with religious discrimination.
Having advanced the argument that American courts have failed to use either the Equal Protection Clause or Title
VII to provide effective protection against discriminatory practices directed at sex/gender outsiders, Zingo provides
in Chapter Four a well-documented argument that the government in a wide variety of ways
either explicitly or implicitly contributes to the discrimination and violence experienced by sex/gender outsiders
in American society. She primarily emphasizes solicitation laws and sodomy laws that place sex/gender outsiders
at the discretionary mercy of law enforcement officials. She also discusses in some detail
institutionalized censorship including attempts to control freedom of expression through funding and regulations
of the National Endowment for the Arts. She concludes this chapter by arguing that even the rare government attempts
to protect sex/gender outsiders leave much to be desired; for example, the federal Hate
Crimes Statistics Act provides no right, no remedies, and no penalties for hate crimes.
Four major court cases dealing with the constitutionality of hate speech laws are the topic of Chapter Five. Zingo
analyzes DOE v. UNIVERSITY OF MICHIGAN (1989), where the University of Michigan's hate speech policy was found
unconstitutional; UWM POST, INC. v. UNIVERSITY OF WISCONSIN (1991), in which the University of Wisconsin's hate
speech code was found to violate the First Amendment; R. A. V. v. CITY OF ST. PAUL (1992), the landmark U. S.
Supreme Court case in which the city of St. Paul's hate speech law as ruled unconstitutional in a unanimous vote;
and WISCONSIN v. MITCHELL (1993), the case
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in which the U. S. Supreme Court unanimously upheld a Wisconsin law, which provided sentence enhancement for crimes,
based upon race. Based upon these cases, she takes the position that hate speech laws seeking to protect sex/gender
outsiders are not likely to be found constitutional in any court, and she is also
pessimistic about the value of sentence-enhancement laws because no assurance exists that these laws will extend
to sex/gender outsiders.
In the brief concluding chapter to her book, Zingo provides her answer to the question posed in the subtitle of
the book, "Can they say that about me?" Her answer is, "'Yes, they can . . . provided the communication
occurs in an open forum, within the context of political discourse, and in a time, place, and manner unlikely to
Despite these criticisms, Zingo's book is well worth reading, joining an emerging body of scholarship analyzing
the topic of the law and the gay rights movement.
REFERENCES
DOE v. UNIVERSITY OF MICHIGAN, 721 F. Supp. 852 (E.D. Mich. 1989).
EMPLOYMENT DIVISION, DEPT.OF HUMAN RESOURCES OF OREGON v. SMITH,
494 U.S. 872 (1990).
R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).
ROMER v. EVANS, 116 S.Ct. 1620 (1996).
UWM POST v. UNIVERSITY OF WISCONSIN, 774 F. Supp. 1163 (E.D. Wis.
1991).
WISCONSIN v. MITCHELL, 509 U.S. 476 (1993).