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

 

forcefully that sex/gender outsiders must not acquiesce in silence to hate speech but instead must have the courage to confront such speech with reasoned counter-speech. Ultimately, however, speech alone is not enough; ". . . counter-speech must be part of a comprehensive educational and political strategy aimed at raising people's consciousness, dismantling prevailing stereotypes and
myths, and obliterating the social conditions that perpetuate attacks of hatred based on gender identity and affectional orientation/preference" (p. 180).

Zingo's book is recommended reading. The basic thesis of the book is stated clearly and is argued effectively. It provides a compelling case that hate speech regulations are not likely to be an effective tool in combating the discrimination and intolerance faced by sex/gender outsiders and that such laws may do more harm
than good.

Several bothersome features of the book can also be noted, however. One criticism is an irritating endnote system that has the negative features of law review articles without their redeeming qualities. Zingo employs numerous and lengthy endnotes that force the reader to search through the book and to spend
considerable time reading them, thus losing the train of thought in the chapter. Chapter One, for example, was six pages of text and ten pages of endnotes.

A second limitation of the book involved the cursory treatment of the Court's major, recent decision of ROMER v. EVANS (1996), in which a 6-3 court ruled unconstitutional Colorado's Amendment 2, which sought to invalidate various local ordinances prohibiting discriminatory treatment against sex/gender outsiders. This
important decision is mentioned only briefly in the text, although Zingo does discuss the case at length in some endnotes, minimizing the significance of the case. Many scholars and gay rights advocates have a much more positive view of ROMER; even if Zingo is correct about the importance of the case, it certainly deserves
far greater discussion in the text of the book. In addition, factual errors regarding ROMER are very bothersome; in a footnote on page 14 she states the vote in ROMER was 6-4 and on page 95 the year of the decision is given as 1994.

A third criticism involves the argument in Chapter Three regarding gay rights and the Free Exercise Clause. The premise of this argument is that religious identity and gender/sexual identity share many important, major similarities, but this position was not argued convincingly. The conclusion of the argument was equally bothersome. In arguing that the discrimination again sex/gender outsiders should be treated with the same high level of protection as is used in cases of

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religious discrimination, Zingo disregards the Supreme Court's landmark 1990 decision of EMPLOYMENT DIVISION, DEPT. OF HUMAN RESOURCES OF OREGON v. SMITH in which the Court dramatically undercut the use of strict scrutiny in free exercise cases.

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).