‘The U.S. hypocrisy over Russia’s anti-gay laws’

Last Friday, The Washington Post ran an op-ed with the above title by Profs. Ian Ayres and William Eskridge. The op-ed argued that the United States was hypocritical in condemning Russian bans on advocacy of homosexuality, because some American states likewise restrict such advocacy.

But the op-ed didn’t discuss a hugely important distinction: the Russian ban actually bans speech that is seen as “propaganda of homosexualism among minors” — the American state laws restrict what is taught in government-run schools. The Russian ban is indeed pretty reprehensible censorship of speech (which I’ve condemned before). But the American restrictions are basically the government dictating what its own employees say in the government’s own institutions.

Indeed, what is taught by schools is constrained in lots of ways. The Supreme Court has generally held that schools may not teach religious dogma as truth. A law that bans private citizens from propagandazing religion (even “among minors”) would of course be a very different matter.

The Supreme Court has struck down a state law mandating the teaching of “creation science.” But of course any law that fined private citizens or organizations from advocating for intelligent design would be unconstitutional.

I would imagine that in many school districts, a teacher who taught that homosexuality is evil — or that global warning isn’t happening — would be disciplined or even fired. State laws that impose such a mandate on all school districts within the state would be clearly constitutional (unless there’s a state constitutional separation of powers provision or local government rights provision that limits such laws); they would involve the representatives of the people controlling how government-run schools operate. But laws imposing fines on private citizens for “anti-gay propaganda among minors” or “anti-global-warming propaganda among minors” would clearly violate the Free Speech Clause, and would be unacceptable censorship.

Speech by schoolteachers in public schools, unsurprisingly, has to be defined by some government official. Sometimes it might be the schoolteachers themselves choosing what to say in class. But schoolteachers’ managers — the school principals — can control what their employees say, when those employees are paid to say it by the government to a government-provided captive audience.

The principals’ managers, that is to say school boards, can do the same. So can the legislatures, to the extent that state law views them as proper supervisors for local school boards. So can the people, through the initiative process in those states that allow it, because the people are the ultimate employers of government employees.

One might agree or disagree with the substance of a particular restriction. Some might, for instance, argue that bans on, for instance, “includ[ing] in [a school district] course of study instruction which: 1. Promotes a homosexual life-style. 2. Portrays homosexuality as a positive alternative life-style. 3. Suggests that some methods of sex are safe methods of homosexual sex” are a bad idea. (I number myself in that category.) Some might argue government-run schools should be barred from teaching that homosexuality is evil, but they should be allowed or even required to teach that homosexuality is morally equivalent to heterosexuality. Likewise, most people would agree, I think, that schools shouldn’t teach historical or scientific errors, although there may be disagreement on just what is a historical or scientific error.

People can also have different views over what level of the school hierarchy should make certain decisions — whether they are best made by individual teachers, principals, school boards, legislatures or popular initiatives. And people can have different views about when schools should exclude a particular view (scientific, historic, moral or otherwise) as being wrong, and when they should instead present all the sides of a question and teach students to figure the answers out for themselves.

But whatever one’s judgment about such matters, it seems to me that there’s a huge difference between:

  1. Restrictions imposed by the government on what is taught in government-run institutions by government employees being paid a government salary to teach a government-provided audience of students, and
  2. Restrictions on speech by the public at large.

There’s nothing at all hypocritical in condemning Russian censorship of private pro-homosexuality speech — or for that matter European censorship of anti-homosexuality speech — while not similarly condemning state decisions about what is taught in state-operated schools. And even if one believes that all governmental “stigmatizing gay identity” (the op-ed’s characterization of President Obama’s position) is improper, there’s nothing at all hypocritical about especially condemning such “stigmatiz[ation]” when it comes in the form of legal prohibition on private pro-gay speech, and not focusing on such “stigmatiz[ation]” when it comes to a state’s choosing what speech its employees will engage in.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Sasha Volokh | February 3