Queers Anonymous: Lesbians, Gay Men, Free Speech, and Cyberspace

Anonymity is a shield from the tyranny of the majority. It exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.

— McIntyre v. Ohio Elections Commission [1]

Pseudonymity allows people who are experimenting with different sorts of interests to do so without social repercussions. People can temporarily obscure their real life and play with a different conception of what their life might be.

—Professor Jerry Kang, UCLA Law School[2]

I. Introduction

In the past decade or so, the development and expansion of the Internet and other forms of cyberspace have created unprecedented opportunities for communication in various forms both across the globe and across the street. As a result of this technological development, individuals now have a greater opportunity for anonymous or pseudonymous communication. We can now interact with others without the traditional constraints of time, place, and manner of communication.

As both the number of people using cyberspace and the ways they can use it have dramatically increased, governments have attempted to regulate speech in cyberspace in various ways. In the United States, most notable among these attempts are the Communications Decency Act (CDA),[3] the Child On-Line Protection Act (COPA),[4] and the Children’s Internet Protection Act (ChIPA).[5] Several states have also passed laws or instituted policies that attempt to regulate speech in cyberspace.[6] Further governmental attempts to regulate cyberspace can be expected.[7] Although attempts to regulate cyberspace have been subject to judicial and scholarly scrutiny, this article focuses on people who will be particularly effected by attempts to regulate speech in cyberspace,[8] namely lesbians, gay men and other sexual minorities.[9] This article argues that the protection of the speech of lesbians, gay men and other sexual minorities is at the heart of the First Amendment and that attempts to regulate such speech in the context of cyberspace should be closely scrutinized. Laws that regulate speech in cyberspace will likely have great impact on lesbians and gay men in particular. The failure to protect against such impact will have the result of suppressing the speech of sexual minorities.

As evidence of this impact, it is significant that among the litigants challenging almost every attempt to regulate speech in cyberspace in the United States have been lesbians and gay men, the businesses that serve them, or the organizations that represent them. Among those challenging the CDA in ACLU v. Reno I were the Queer Resources Directory, an on-line resource for lesbians, gay men and other sexual minorities, and an AIDS education group that maintains a web site.[10] Among those challenging COPA in ACLU v. Reno II were A Different Light Bookstore, a gay and lesbian bookstore that maintains a website, Blackstripe, a web-based resource for African-American lesbians and gay men, Philadelphia Gay News, a newspaper serving the lesbian and gay community that also publishes on line, and Planet Out, an on-line content provider serving the lesbian and gay community.[11] Among those challenging ChIPA in American Library Association v. United States are Planet Out, Out in America, a company that runs over sixty websites for lesbians, gay men and other sexual minorities, and a young lesbian who accesses the Internet from a public library.[12] The same is true of the litigants in several of the cases challenging state laws and policies.[13]

Attempts to regulate cyberspace are of special concern to sexual minorities. Many lesbians and gay men find cyberspace to be an important source of information, a useful way of community and political organizing, a congenial and entertaining way of spending time, and a potential medium for meeting friends, lovers and sexual partners.[14] For some lesbians and gay men isolated from other lesbians and gay men in the “real” (that is, physical, non-cyber) world, cyberspace provides a virtual community that constitutes an emotional lifeline. Especially for lesbians and gay men who are not open about their sexual orientation and for people who are exploring their sexuality, the relative anonymity of cyberspace is ideal. Cyberspace provides opportunities for which lesbians and gay men as a group, more than heterosexuals as a group, have a particular need. Because cyberspace has particular significance to lesbians and gay men, this article focuses on the intersection of the First Amendment, cyberspace, and the social and legal circumstances of lesbians and gay men.

The protection of the speech of lesbians, gay men, and other sexual minorities in cyberspace is at the heart of the First Amendment. Laws that restrict the expression of lesbians and gay men cut to a core purpose of the First Amendment, namely “to protect . . . unpopular individuals from retaliation . . . and their ideas from suppression.”[15] The speech of lesbians and gay men is so important because of the contemporary social situation for sexual minorities. Notably, the importance of these protections is amplified by the context of cyberspace. While other groups such as women and racial minorities are affected in particular ways by the structure and nature of cyberspace and attempts to regulate it,[16] as I explain below, in virtue of the “closet” and the secrecy associated with it, such regulations affect lesbians, gay men and other sexual minorities in substantially distinct ways. As a result, when governments attempt to regulate cyberspace, they need to consider the impact that such legislation will have on lesbians, gay men, and other sexual minorities. Laws that are crafted without consideration of the unique ways that sexual minorities use cyberspace are unlikely to protect against the suppression of unpopular groups and their ideas and, thereby, will undercut core values of the First Amendment. When courts are evaluating laws that trench on the free speech rights of lesbians and gay men in cyberspace, they should carefully scrutinize such laws.

My discussion will proceed as follows. In Part II, I discuss cyberspace and attempts to regulate it. In Part III, I survey the social and legal conditions for lesbians, gay men and bisexuals in the United States and look at how these conditions are manifest in cyberspace. In Part IV, I examine how courts have dealt with the speech of sexual minorities. I show that since the middle of the twentieth century, speech concerning homosexuality and the speech of lesbians and gay men have, for the most part, been protected by the First Amendment, but I focus on the exceptions to this protection. In Part V, I discuss anonymous speech, in particular, the Supreme Court’s holding that the protection of at least some anonymous speech is an important part of the right to free speech and the strong theoretical foundations of this protection. In Part VI, drawing on the three preceding Parts, I argue that, at the heart of the First Amendment, are principles that entail the protection of lesbians and gay men who speak “from the closet,” that is, who speak anonymously or pseudonymously. Given the structure of cyberspace and the ways that lesbians, gay men, and other sexual minorities use it, the speech of sexual minorities in cyberspace warrants special protection. In Part VII, I argue that when lesbians and gay men speak not from the closet but as open lesbians and gay men, their speech is of a political nature, and thus also central to the First Amendment. In Part VIII, drawing on by applying the conclusions of the two previous Parts to cyberspace, I argue that the speech of lesbians and gay men in cyberspace, whether anonymous or not, deserves special protection. I show how these conclusions fit with and build upon judicial responses to governmental attempts to regulate cyberspace. I argue that restrictions on the speech of lesbians and gay men in general and in cyberspace in particular undermine the very essence of the First Amendment. Future attempts to regulate cyberspace need to take the distinctive social situation of lesbians and gay men into consideration. Laws that regulate speech in cyberspace should be given heightened scrutiny in order to protect the tenuous free speech rights of lesbians and gay men.

II. Cyberspace and Attempts to Regulate It

A. Cyberspace Defined

Cyberspace is a catchall phrase for the “virtual reality” of computer-mediated communication, the “location” of various electronic interactions. Cyberspace includes communication on and through the Internet, the World Wide Web, electronic mail, Usenet discussion groups, chat rooms, the exchange of digitized images, video and sounds, as well as other modes of communication. In cyberspace, individuals can, inter alia, shop, bank, conduct research, make friends, keep in touch with family, and engage in political activism. The activities in which one can engage in cyberspace and the ways that one can engage in them are expanding rapidly.[17]

One can participate in almost all of the activities in cyberspace either anonymously or pseudonymously.[18] A user of cyberspace can adopt a pseudonym and not “attach” any information (or any true information) about herself (such as her name, hometown, race, or sexual interests) to this pseudonym. It is usually possible for the state or a motivated, cyber-savy individual to locate the person behind the pseudonym. There are, however, currently available various privacy tools that make such tracing difficult.[19]

B. Attempts to Regulate Cyberspace

In the face of increases in both the amount of services available in cyberspace and the number of people making use of them, Congress has attempted to limit certain types of communication in cyberspace. In 1996, Congress enacted the Communications Decency Act (CDA). In general, this Act aimed at the protection of minors from indecent and patently offensive communications in cyberspace by prohibiting anyone from sending or displaying indecent or obscene messages to people under the age of eighteen.[20] In ACLU v. Reno I, the Supreme Court upheld the decision of a three-judge panel, finding the CDA unconstitutional on the grounds that it violated the First Amendment’s protections of the freedom of speech.[21] The Court held that the CDA was overly broad because it unduly restricts adult access in order to protect children[22] and because it regulates merely indecent speech, which is protected by the First Amendment, along with obscene speech (that is, explicitly sexual speech that primarily appeals to prurient interest in sex, is offensive to community standards, and lacks serious literary, scientific, artistic or political value[23]), which is not protected by the First Amendment.[24]. Further, the Court held that the CDA violated the First Amendment because, although the government’s interests in protecting children are compelling, there are less restrictive ways of attempting to protect children than those adopted by the CDA.[25]

Congress responded the Supreme Court’s decision in ACLU v. Reno I with the Child On-Line Protection Act (COPA). This act prohibited the following conduct:

Whoever knowingly, . . . in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes material that is harmful to minors shall be fined not more than $50,000, imprisoned for six months, or both.[26]

COPA defines material harmful to minors as:

[A]ny communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.[27]

Various plaintiffs filed suit to prevent the enforcement of COPA, arguing that the statute was unconstitutional. The district court granted a preliminary injunction prohibiting the enforcement of COPA on the grounds that it violates the First Amendment,[28] finding that COPA imposes a significant burden on the speech of people who make use of cyberspace and that it fails to use the least restrictive means for doing so. The Court of Appeals for the Third Circuit affirmed on the grounds that the statute was overbroad in virtue of the use of contemporary community standards to determine whether speech in cyberspace would be harmful to minors.[29]

In a highly fractured opinion, the Supreme Court vacated the decision of the court of appeals and remanded the case to the appeals court. Justice Thomas’ opinion, only part of which commanded a five-judge majority, focused on the "narrow question [of] whether [COPA's] use of 'community standards' to identify 'material that is harmful to minors' violates the First Amendment."[30] The Court found that COPA’s use of community standards did not render it facially unconstitutional and remanded the case for further constitutional analysis of COPA. While eight of the justices concurred in the result, only two judges joined Justice Thomas in the most substantive sections of his opinion.[31]

Because of the fractured nature of the Court's decision and the narrowness of its holding, it is difficult to discern what the Court will do if, as seems likely, the Third Circuit, on remand, affirms the district court’s conclusion that COPA is unconstitutional on grounds other than the role community standards play in COPA. Justice Kennedy’s concurring opinion suggests that he and Justices Souter and Ginsburg have serious doubts about COPA’s constitutionality.[32] Justice Stevens, who dissented, would have affirmed the decision of the court of appeals. At a minimum, then, Justices Breyer and O’Connor are likely to be the swing votes when, as seems inevitable, COPA again reaches the Supreme Court. Their separate concurrences, both of which focus on the constitutionality of a national standard for obscenity, do not provide much indication of their views on COPA as a whole.[33]

Various states have passed laws like the CDA or COPA. For example, in 1999 Michigan passed a law that banned the distribution of sexually explicit material to minors over the Internet.[34] In Cyberspace Communications Inc. v. Engler, this law was overturned on the grounds that it violated the First Amendment and the Commerce Clause.[35] Other such state laws have been found unconstitutional on similar grounds.[36]

C. Filtering

Various courts, in addressing the constitutionality of the CDA, COPA and other state laws that are similar to them have found that the use of filtering software that blocks access to certain web sites is a less restrictive means of fulfilling the legitimate government interest in preventing children from accessing obscene and indecent material in cyberspace.[37] The supposed virtue of individuals using such software to “protect” their children is that, because individual parents will control their children’s access to cyberspace, the state is neither restricting speech in cyberspace nor restricting access to cyberspace.

There are various types of filtering methods, of which the two most frequently used are “dirty word” (or keyword) blocking filters and site-blocking filters. The less sophisticated type of filters search for certain undesirable (“dirty”) words or phrases and then remove these words or phrases from the page or, alternatively, block pages containing such words. Such “dirty word” filters are unsophisticated because they unintentionally block out many sites. For example, a filter that attempts to prevent access to sexually explicit web sites by screening out the word “sex” would also screen out web pages with information about musical sextets, sextuplets as well as sexual orientation and perhaps even the Mars Explorer (which has the letters “s”, “e” and “x” next to each other).[38]

More sophisticated are programs that use site-blocking filters (or programs that combine such filters with “dirty word” blocking filters). These types of filtering programs maintain lists of web sites and either (a) prohibit access to all the sites on the list (“black-list” filters) or (b) permit access to only those sites on the list (“white-list” filters). Each of these two types of site-blocking filters has advantages and disadvantages. White-list filters provide greater assurance that the filtered sites will be free of offending material, because each site has been screened and then specifically included on the list of accessible sites. AOL uses a white-list filter in its “Young Teen” area.[39] A site-blocking program that uses a white list is limited in that it only provides access to a very limited number of sites. New web pages that have not yet been scrutinized will also be blocked.

Both white-list and black-list filters need to be constructed and maintained through human intervention and thus are faced with the overwhelming size of the world wide web. Someone has to determine that a web site passes muster to put it on the white list or that the web site does not pass muster to put it on the black list. Additionally, white-list filters require frequent maintenance to make sure that sites that were originally approved do not add offending content. Without frequent maintenance, white-list filters will fail to provide the pristine content they are supposed to deliver. A huge staff would be necessary to evaluate even a significant portion of existing web sites to determine which ones should be filtered. Even if such a staff could be assembled, the people who do the screening would have to make subjective determinations about each site they screen. To do their job properly, the screeners would have to assess whether each site’s content is appropriate for different age groups and in light of varied filtering criteria. Because of the size of the web and the difficulties involved in rating each website and keeping the ratings up-to-date, neither type of filter will be effective. A site-blocking program that uses a black-list filter will probably not screen out most offensive content. For example, in a independent study, the filtering program Cybersnoop failed to block ninety percent of objectionable sites.[40] Similarly, a white-list filter will not allow access to most websites that have no offensive content and will allow access to many sites with offensive content. Additionally, in general, most site-blocking software blocks access to some lesbian and gay material, much of which is clearly not offensive.[41]

Despite the technological problems with filters, in light of the negative judicial assessment of CDA, COPA and similar statutes, many states and the Federal government have turned to filtering software as an alternative way to control access to material in cyberspace. For example, the public libraries in Loudoun County, Virginia, as part of providing Internet access to its patrons, installed such a program (a filtering program called X-STOP) on its public terminals. The library’s policy for Internet access provided, in part, that:

all library computers would be equipped with site-blocking software to block all sites displaying child pornography and obscene material and material deemed harmful to juveniles; . . . all library computers would be installed near or in full view of library staff; [and that]. . . patrons would not be permitted to access pornography . . . [42]

A non-profit organization, several county residents, and two web pages directed at sexual minorities filed a suit in federal court challenging the library’s Internet policy, arguing that it violated their free speech rights. The district court ruled in favor of the plaintiffs, holding that, the library’s Internet access policy violated the First Amendment because, in part, it restricted the access of adult patrons in order to protect minors and because it was neither necessary for nor narrowly tailored to any compelling state interest.[43]

The decision in Mainstream Loudon did not discourage Congress from passing a law requiring use of filtering software. In 2000, Congress passed the Children’s Internet Protection Act (“ChIPA”),[44] which requires public schools and libraries to install filtering software that protects against access to obscene material, child pornography, or material that is harmful to minors, in order to be eligible for certain federal funding. Specifically, the portion of ChIPA codified at 47 U.S.C. § 254 requires public libraries that receive federal funds through a program designed to provide access to information services such as the Internet to install filtering technology to prohibit access to obscene material, child pornography and, if the computers involved are used by minors, material that is harmful to minors. Additionally, the portion of ChIPA codified at 20 U.S.C. § 9134 requires similar measures be taken by libraries that receive funds from the Library Services and Technology Act to pay for computer equipment or Internet access. Both provisions provide that library or school personnel may disable the filtering software for certain adult users who can demonstrate that they are engaged in a “bona fide research program”[45] that requires unfiltered access to cyberspace, but neither provision defines a bona fide research program or says how library or school personnel can make the necessary assessments of the proposed research and do so in a way that protects the users’ privacy.

A three-judge panel recently found ChIPA unconstitutional, applying strict scrutiny to content-based restrictions on library patrons’ access to cyberspace.[46] Applying strict scrutiny, the court found that the use of such programs is unconstitutional because such programs are not narrowly tailored to a compelling government interest and because there are less restrictive ways of satisfying that interest.[47] Specifically, the court found that the filtering software, because of its technological limitations, “block[s] access to substantial amounts of constitutionally protected speech.”[48] Further, although the court found that libraries do disable the filtering software, or at least will allow access to blocked sites when a library patron requests, the court held that this method of dealing with the technological limitations of filtering programs “deter[ed] many patrons because they are embarrassed or desire to protect their privacy or remain anonymous.”[49] The fact that libraries will disable filtering on request does not, according to the court, “cure the constitutional deficiencies in public libraries’ use of Internet filters.”[50] The court concluded that ChIPA was facially invalid on First Amendment ground and enjoined its enforcement.

III. The Social Situation of Lesbians and Gay Men and Its Legal Enforcement

As background for the discussion of the impact on sexual minorities of attempts to regulate cyberspace, I consider some features of the social situation of lesbians, gay men and other sexual minorities in the United States and their legal enforcement. In the United States, lesbians and gay men face a hostile social environment. Although this seems beyond dispute, Justice Scalia seemed to deny this, saying that homosexuals have both “high disposable income” and “political power much greater than their numbers [that] . . . they devote to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.”[51] The discussion of the current social situation for lesbians and gay men also serves to address Justice Scalia’s skepticism about how negative the situation for lesbians and gay men in the United States is.

A. The Legal Situation of Lesbians and Gay Men

One way to assess the situation of lesbians and gay men is to look at the laws that are directed at them in particular. In the United States, depending on how one counts, thirteen states as well as the military (which is a separate criminal jurisdiction) have laws that criminalize most forms of same-sex sexual activity.[52] Although no state regularly enforces these laws (often called “sodomy” laws or laws regarding “unnatural” sex acts), they are selectively enforced by some states. Further, the Supreme Court has ruled, in Bowers v. Hardwick,[53] that the Constitution allows states to prohibit consensual homosexual activity (although it does not seem to allow states to prohibit comparable forms of heterosexual activity). Even in states where such laws are not generally enforced, laws against sexual activity between people of the same sex are used to support and justify other laws and social practices relating to homosexuality.[54] Criminal prohibitions relating to sexual activity between people of the same-sex restrict sexual behaviors and embody as well as enforce the general negative attitudes that exist toward lesbians and gay men.[55]

Not only is sex between people of the same sex criminalized, lesbians, gay men and bisexuals are also subject to a multitude of discriminatory practices. For example, it is legal in thirty-nine states for a non-state entity to discriminate in terms of hiring and housing against a person in virtue of sexual orientation.[56] A gay man or lesbian—even if he or she can prove that sexual orientation was used as a reason not to hire him or her for a job—has no legal recourse in most states. In many states, lesbians and gay men face difficulties (often insurmountable) adopting children and, in Florida, they are simply prohibited as a matter of law from adopting.[57] Additionally, no state provides lesbian and gay relationships with the same legal recognition it provides heterosexual marriages, although Vermont comes close with civil unions.[58] However, a same-sex couple who obtains a civil union in Vermont cannot get the federal benefits that accrue to married couples[59] and their relationship may not be recognized in other states.[60] In states besides Vermont, while a heterosexual couple can legally formalize their relationship by getting married and thereby obtain the rights and privileges that flow from marriage, a same-sex couple can get few if any of these benefits for their relationship.[61]

The legal asymmetries surrounding sexual orientation do not stop with the rights and privileges withheld from gay and lesbian individuals. They affect lesbian and gay institutions and lesbian and gay community structures. For example, lesbian and gay students in public schools have been denied funding for their organizations.[62] In addition, plays, photographs, and other forms of artistic expression that reflect lesbian and gay culture have been banned from receiving government support.[63] In fact, representation of and by lesbians and gay men have played a central role in debates over government funding of the arts and public standards of “decency.”[64]

Finally, despite the discrimination faced by lesbians and gay men, past and present, under current Supreme Court case law regarding the Equal Protection clause of the Fourteenth Amendment, sexual-orientation classifications do not receive the heightened scrutiny that racial classifications, ethnic classifications, and classifications associated with national origin, sex, alienage, and legitimacy receive.[65] While the Supreme Court has not directly ruled on the question of whether laws that make use of sexual-orientation classifications deserve heightened scrutiny, most U.S. courts that have considered this question have denied that sexual-orientation classifications deserve heightened scrutiny.[66]

The closest the Supreme Court has come to addressing this question in a way that carries precedential weight is Romer v. Evans,[67] in which the Court overturned an amendment to the Colorado Constitution. The amendment, which was approved by a state-wide voter referendum, repealed various city ordinances in Colorado that prohibited discrimination on the basis of sexual orientation and, further, prohibited any state or local government from passing laws that would protect lesbians, gay men, and bisexuals from such discrimination.[68] The Court explicitly did not reach the question of whether sexual orientations deserve heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment but rather held that the proposed Colorado constitutional amendment failed to pass constitutional muster even under rational review, a weaker standard of judicial scrutiny. Justice Kennedy, writing for the majority, said:

First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.[69]

Some scholars have read Romer as suggesting that the Court is in fact applying a somewhat heightened standard of review to sexual-orientation classifications, one either equivalent to the intermediate standard of review it applies to gender classifications,[70] (which is a somewhat less searching review than strict scrutiny[71]) or a standard in between mere rational review and intermediate scrutiny, what some have called “rational review with bite”[72]). Traditionally, the requirement that a statute or state action be rational is very weak: almost any justification is enough to establish rationality. Given how weak the mere rationality requirement is, the Court in Romer must have had more than this weak test in mind. Perhaps Romer indicates that heightened scrutiny for sexual orientation is just around the corner. Whether this proves to be true remains to be seen. For now, it is worth noting that various federal courts have used the rational review standard to scrutinize state action relating to sexual orientation. Using this test, courts will sometimes invalidate sexual-orientation discrimination.[73] However, other courts, applying the rational review standard, will find some instances of discrimination on the basis of sexual orientation to be constitutionally legitimate.[74] In any event, under rational review, it is easier for a law to survive constitutional scrutiny than to survive the scrutiny applied to race or gender classifications.

B. Social Attitudes Towards Lesbians and Gay Men

Legal matters aside, social attitudes towards lesbians and gay men and other sexual minorities, while improving in some quarters, remain negative. Violence against lesbians and gay men is not uncommon: more bias-related hate crimes are committed against people because of their sexual orientation than for any other reason.[75] Such violence is often quite severe as several hate-crime murders of gay men and lesbians in the past few years have graphically demonstrated. Society’s attitudes towards lesbians and gay men are also manifest in how some lesbians and gay men, especially young ones, feel about themselves. Among the most striking evidence of this is that lesbian and gay teenagers are three times more likely to attempt suicide than their heterosexual counterparts.[76]

While public opinion as measured by national opinion polls indicates that attitudes towards lesbians and gay men are becoming more favorable over time, it is still the case that over forty percent of the population believes that homosexuality is not an acceptable lifestyle and that same-sex sexual relations between consenting adults should be illegal.[77] Further, over half of the population opposes laws that would give same-sex couples some of the legal rights of married couples.[78] Perhaps more telling is a poll that found fifty-six percent of adult Americans disapprove of homosexual couples adopting children.[79] Also revealing is a poll that found that eighty percent of adult Americans would be “upset” or “very upset” if a college-aged child of theirs said he or she was gay or lesbian.[80] Read together, these polls show that even people who are sympathetic to lesbian and gay rights and who do not think homosexual conduct should be illegal think that homosexuality is a trait worth avoiding and that lesbians and gay men are not to be trusted. In fact, parents are often willing to go to extreme measures to ensure that their children do not grow up to be lesbians or gay men.[81]

C. The Closet

There is, however, a further (related) feature of lesbian and gay existence in the United States that warrants attention: lesbians, gay men, and bisexuals are, in a variety of ways—some subtle, some not—encouraged to keep their sexual orientations secret, that is, “in the closet.” The closet is a distinctive, pervasive, and, some have argued, singular feature of lesbian and gay existence.[82] Its effects are easily underestimated. People remain in the closet who are financially and professionally secure enough to survive the negative ramifications that might follow the disclosure of their homosexuality. They do this despite the energy and emotional stress involved in hiding an important part of their lives from family, friends, neighbors and coworkers. Even when lesbians and gay men “come out,” that is, make their sexual orientations known, the closet continues to play a central role in their lives; even open lesbians and gay men must also worry about the closet. On the one hand, since, in many contexts, people are presumed to be heterosexual, the question of who to tell about one’s homosexuality or bisexuality continually arises. If, for example, you are a lesbian and your mail carrier asks you how your sister is, when the woman he is referring to is your lover, should you “come out” to him? Similarly, lesbians and gay men may find themselves having to worry about protecting the secrets of other lesbians and gay men: you may know that someone is a lesbian but you do not know who else knows and whom she wants to know. Some have argued that being forced or obliged by social conventions or by “unwritten rules” of the lesbian and gay community to keep some one else’s homosexuality secret is an assault on one’s dignity as a gay man or lesbian.[83]

The closet is a social creation but it is enforced in various ways by laws and judicial decisions. Courts have interpreted laws to construct various social and legal “double binds”[84] for sexual minorities with respect to their identity and their expression. On the one hand, lesbians and gay men are (implicitly or explicitly) told to keep their sexual orientation secret, while, on the other hand, they are told (implicitly or explicitly) to confess it. Similarly, on the one hand, they are told that their identity is protected (although their behavior may be restricted), while on the other hand, they are discriminated against in certain contexts even when they keep quiet about their identity.

Consider the case of Joseph Acanfora.[85] Several weeks after he was hired as a public school teacher, school officials learned Acanfora was gay. Acanfora was thereafter transferred to an administrative position that did not involve any contact with students. After his transfer, Acanfora sued the school system demanding his return to the classroom. He also granted several television and newspaper interviews to discuss his situation.

The trial court held that Acanfora’s removal from the classroom was reasonable, especially in light of his interviews, which showed a lack of the sort of propriety teachers ought to show.[86] The Court of the Appeals for the Fourth Circuit upheld Acanfora’s removal but on different grounds. They held that Acanfora’s interviews concerned “matter[s] of public interest,” including the difficulties that homosexuals encounter in families, in employment, and in the community at large. His speech in these contexts was, therefore, protected under the First Amendment and did not “justify . . . the action taken by the school system.”[87] The court, however, found that Acanfora’s removal was justified because he lied to school officials by withholding the information that, in college, he had been involved in a “homophile” organization, “which had as its purpose the development of public understanding about homosexuality.”[88] Although the school officials admitted that they would have refused to hire Acanfora on the basis of his membership in such an organization, the Fourth Circuit found that his failure to mention his membership in this organization disqualified him from challenging his dismissal. The trial court justified Acanfora’s removal from the classroom because he was open about his homosexuality, while the appellate court justified his removal because he kept it secret.

To make matters more complex, consider two other court rulings about homosexuality and public school teachers. In National Gay Task Force (NGTF) v. Board of Education of the City of Oklahoma,[89] the Court of Appeals for the Tenth Circuit held that, under Brandenburg v. Ohio,[90] a teacher cannot be fired for advocacy of homosexual activity (for example, advocacy of same-sex sodomy, which was at the time illegal in Oklahoma), although a teacher can be fired for public homosexual activity. Contrast this holding with Rowland v. Mad River Local School District,[91] decided by the Court of Appeals for the Sixth Circuit in the same year as NGTF. In Rowland, a guidance counselor was suspended and subsequently not rehired when she told a secretary, an assistant principal, and several teachers that she was bisexual and involved in a relationship with another woman. The district court found that Rowland’s firing violated her freedom of speech.[92] The Sixth Circuit reversed, holding that Rowland’s speech did not involve “a matter of public concern.”[93]

According to the Fourth Circuit, Acanfora’s homosexuality is a matter of public concern; but according to the Sixth Circuit, Rowland’s bisexuality is not. Given such a tangle of rulings, what was a gay teacher supposed to do after 1985? In this situation and others like it, lesbians, gay men and bisexuals find themselves in a “double bind” or a “Catch-22” situation.[94] Although the situation for lesbian and gay teachers may have improved,[95] the closet and the associated double bind have continuing vitality in our culture.

Consider, for example, the current law regarding lesbians and gay men in the United States Armed Forces, which reads, in relevant part:

A member of the armed forces shall be separated from the armed forces . . . if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings . . . that the member has demonstrated that

(A) such conduct is a departure from the member’s usual and customary behavior;

(B) such conduct, under all circumstances, is unlikely to recur;

(D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interest of the armed forces in proper discipline, good order, and morale; and

(E) the member does not have a propensity or intent to engage in homosexual acts.

(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding . . . that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

(3) That the member has married or attempted to marry a person known to be of the same biological sex.[96]

Within months of the codification of this policy, the Department of Defense issued various regulations for following this policy.[97] According to these regulations, the military is not, in general, allowed to ask a service member about his or her sexual orientation or to investigate a service member’s sexual orientation unless there is “credible information that there is a basis for a discharge.”[98] However, if there is any indication of homosexual activity or actions or speech that indicate a propensity to engage in such activity, the service member may be discharged. Various federal appellate courts have upheld the constitutionality of this policy.[99] In particular, several courts have held that the restrictions on speech involved in the military’s policy on homosexuality are justified because they are closely related to a strong government interest.[100] Under this policy, lesbians and gay men in the military live in a legally-enforced closet.[101]

For this reason, as well as because military service involves a significant relaxation of First Amendment protections—in general, a civilian has much stronger First Amendment protections than does a person serving in the military—military policies restricting speech of servicemembers are usually upheld.[102] Further, the military’s policy concerning homosexuality makes the military an especially difficult environment for lesbians and gay men, especially because a single utterance by a service member suggesting that he or she is gay or lesbian may result in his or her discharge.[103]

Lest one think that the legal closet is a relic of the past or an eccentricity of the military, consider the case of Shahar v. Bowers.[104] In 1990, Robin Shahar was offered a job working for the Attorney General of the State of Georgia, Michael Bowers (of Bowers v. Hardwick fame). On her application for the job, Shahar listed her marital status as “engaged” and indicated that her future spouse was a woman. Before she began working, Shahar and her partner held a ceremony in which they exchanged vows and rings. They also openly changed their last names to Shahar, obtained the married rate on their insurance, and openly cohabited. Bowers claimed that, in light of their public ceremony, which Shahar herself called a wedding, he withdrew his offer of employment to Shahar because her employment would lead to public confusion about the Attorney General’s stand on same-sex marriage and other controversial issues. A divided en banc panel of the Court of Appeals for the Eleventh Circuit held that the withdrawal of Shahar’s employment offer was justified by Bowers’ concern about the public perception and the internal consequences of having Shahar work in his office. The Court held that, under the Pickering balancing test,[105] Georgia’s interest “as an employer in promoting the efficiency of the Law Department’s important public services” outweighed Shahar’s First Amendment interests.[106] If Bowers’ rationalization is to be believed, Shahar was refused a job not because of her homosexuality or her openness about it, but for openly engaging in a same-sex wedding ceremony. If this is true, had Shahar kept her same-sex ceremony a secret, she would have been hired. Apparently, had Shahar remained in the closet, the failure to hire her would have been unconstitutional.

D. Sexual Minorities and Cyberspace

Because of the social and legal situation for lesbians and gay men and, in particular, the social structure of the closet, cyberspace is an ideal environment and a “virtual lifeline”[107] for lesbians, gay men, and other sexual minorities. The following three examples illustrate this point.

Queers Anonymous:

Lesbians, Gay Men, Free Speech, and Cyberspace

Contents

A. Cyberspace Defined

II. Cyberspace and Attempts to Regulate It

A. Cyberspace Defined

B. Attempts to Regulate Cyberspace

III. The Social Situation of Lesbians and Gay Men and Its Legal Enforcement