T-Shirts, Homobigots, and the ACLU

Yesterday's WSJ had a piece by Wendy Kaminer blasting the ACLU for failing to defend the free speech rights of religious bigots. I'm not going to comment on the Kaminer's feud with the ACLU leadership (I don't know enough about it) or the imprudence of airing it on the WSJ editorial pages (which is too obvious for comment).

I will comment on the case she cites, because I wrote about it last year. The lawsuit involved a high school kid, Tyler Chase Harper, who was prohibited from wearing a t-shirt reading "Be ashamed, our school embraced what God has condemned" (on the front) and "Homosexuality is shameful" (on the back). Kaminer sees this (apparently) as a straightforward free speech issue, and faults the ACLU for neither representing the kid nor filing an amicus brief on his behalf. I see it...well, as I saw it last year:

Gay marriage is a 'debatable public question'. Anti-discrimination laws are a 'debatable public question'. Hate crime laws are a 'debatable public question'. Someone's existence is not. Race is not a 'debatable public question (imagine a t-shirt reading "Blackness is shameful"), gender is not a 'debatable public question', and sexual orientation is not a 'debatable public question'....

Now, I'll admit that I do get uneasy in cases where civil rights collide with first amendment rights. This case, though, seems to me to be analogous to 'hostile environment' harassment cases, which recognize that to permit pervasive hostility against women (or racial or ethnic minorities or whatever) is to engage in discrimination. This is a case where words have potentially dire consequences. The sentiment on the t-shirt is so viciously hostile, and (I assume) shared by enough of the school population, that were it given free rein it could make school life impossible for the gay (or gay-friendly) students.

The Chronicle had a story yesterday that sort of clarified it all for me. It's about a girl who was relentlessly bullied in three separate middle schools, and the two girls at another school who were disgusted at her treatment and organized what grew into a mass expression of support. The story is heartwarming and horrifying, full of the extraordinary kindness of strangers and the casual viciousness of 'friends', painful reading for anyone who ever suffered even a fraction of what Olivia went through. And to me, the single most sickening detail was this one:

Students started wearing plastic bracelets declaring their hatred for Olivia, Kathleen Gardner said.

Call me a bad civil libertarian, but I don't think plastic bracelets declaring your hatred for a fellow classmate are protected speech. Bullying is not protected speech.

And those plastic bracelets are, of course, the exact equivalent of the t-shirt Harper wanted to wear. This isn't a free speech issue; it's a bullying issue. It's not about what someone is allowed to say; it's about someone else's right to exist.

And if that's how the ACLU sees it, then I say hooray for them.