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The Deep End of the First Amendment

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

In October, Swimmer magazine profiled out swimmer and former Real World contestant Tyler Duckworth. He would probably be an Olympian by now were it not for a "freak accident" at school that broke his back, wrist and left heel. Still, Tyler recovered, excelled and competed at the Chicago Gay Games in 2006.

Swimmer At least one reader did not like the fact that Swimmer magazine was "promoting homosexuality." Glenn from South Carolina wrote a letter to the editor stating that "[h]omosexuality is akin to thievery, adultery, and other sins that should not be tolerated or accepted ... . Homosexuality destroys lives, individually, as well as that of the society as a whole. I am glad for the obvious success of Tyler Duckworth in the water but saddened to hear of his sinful homosexual lifestyle choice." Swimmer published the letter, right above two other letters celebrating diversity and the inclusion of gay swimmers in the community.

Glenn's letter caused a bit of an uproar. My friend Bradley, a leader of New York's gay swim team and an all-around awesome guy, gathered his friends to action condemning Swimmer for peddling homophobia and racism. He noted that free speech is one thing, but you would never see a magazine publishing a similar letter that spoke so hatefully about Jews or African-Americans, for example. Someone had to remind Swimmer that such language is no more worth publishing than racist diatribes from the Klan. Another friend of mine asked, "What kind of world do we live in where the First Amendment allows this to happen?" Another posted on Facebook, "There should be a law against this s**t!"

International Gay and Lesbian Aquatics (IGLA) agreed with Bradley, posting a sharp rebuke of Swimmer on its website. Swimmer posted a sincere apology: "We should have used better judgment during the editorial review of Mr. Welsford’s letter. We could have asked him to resubmit his letter and made sure it met with stricter standards for such letters. And if we had deemed the second letter appropriate to print, we should have printed an explanation adjacent to it due to the sensitive nature of the topic. And we could have chosen to ignore the letter. While, again, we do not endorse or support Mr. Welsford’s opinion, we respect his right or any other member’s right to have an opinion on a topic we have introduced in the magazine and have it considered for publication."

I argue that this story is not about free speech -- Glenn from South Carolina certainly has a right to an opinion, a right to write a letter expressing that opinion and a right to be free from any law that would punish him for either having his opinion or writing his letter. But, what is Swimmer's role in all of this? Does it have to give fair consideration to Glenn's letter? Or, is this question of what should Swimmer do, rather than what must it do? Let's consider what rights and responsibilities Swimmer has, AFTER THE JUMP...

Swimmer says that it respects all its readers' views, but used poor judgment in allowing Glenn's letter to get through.

What if Swimmer had a policy that said, "Swimmer magazine will not consider for publication any Letter to the Editor that uses racist, sexist, homophobic or other hateful language, the determination of which is solely at the discretion of the Editorial Board." Basically, Swimmer is saying that it will not publish what it considers hate speech. That seems like a reasonable policy for a private company to have. Swimmer, unlike a government entity, is basically free to determine what opinions it will voice in its publication. The First Amendment no more requires equal time or prevents it from publishing speech we don't like than it prevents or requires the New York Times from publishing columns by conservative columnists. No, this is question of Swimmer's sense of propriety -- it might make the editorial choice that its commitment to diversity of views is more important than its commitment to diversity. What is clear is that this mini controversy was handled just the way it should be in our society: a homophobic letter appears in a publication; readers of that publication come together and advocate for a change in the publication's policies; the publication reconsiders its position and apologizes. That resolution is just as legitimate as one where the publication neither reconsiders its policies nor apologizes, resulting in a boycott by the offending advocacy group.

What if Swimmer decided it was not going to take any letters from conservatives, or from men, or from South Carolina? It would turn into Liberal Swimmer Monthly and would probably lose readers, but many of us would argue that it would not be doing anything illegal. And, what if Swimmer decided that it would only write about Neo-Nazi swimmers. I can't imagine it surviving as a for-profit publication, but again, would we want to narrow the First Amendment and not let the magazine function as a matter of law because it published an article entitled, "Jews and Gays Can Swim, But Not With Us"? I think many of us would prefer that its hate ruin it at the newsstand, rather than in the courtroom.

My question for you is: Do you want the law to play a role here? And, if so, what role? And, if not, what is the best response to hateful speech?

Law would play a role if Congress passed a law that "any media outlet that publishes anything that suggests homosexuality is sinful or a lifestyle choice shall be fined $5000." Many of us would jump up and argue that "hate speech" is not defined, that even if it were, the law amounts to viewpoint discrimination, and even if it is not viewpoint discrimination, we do not want (or need) this kind of law.

We are too keen to invoke the First Amendment as a sword and a shield. It neither twists our arms and forces us to publish or read hateful speech nor protects us from the court of public opinion when we do. Swimmer gets credit for admitting that publishing Glenn's letter was a matter of (mis)judgment; the magazine did not hide behind the First Amendment and argue that free speech allows it to publish whatever it wants. It recognized the difference between what it can do and what it should do.

Bradley gets credit for knowing that this issue is not about the boundaries of legal speech, but about an editorial policy he can get behind, lest his take his subscription fee elsewhere. But, those who decry the notion that a strong First Amendment makes Glenn's kind of speech possible and yearn for a regime where topics of conversation are simply off-limits in the public sphere are just begging for the devil they don't know.

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Comments

  1. I think the inclusion of the letter quite rightfully shows the writer to be an ignorant ass and hopefully readers might evaluate their own attitudes in light of it. I think it would be censorship not to include it if the reason for not including it was because the editor didn't like what it had to say. There are people out there who are always going to feel this way, but hopefully they're a dying breed. Maybe younger people, with minds more capable of opening will read this and say to themselves, "wow, what an ass. I don't want to be like that."

    Posted by: Michael W. | Feb 2, 2011 2:14:04 PM


  2. The SWIMMER clearly desires an increased readership.
    Someone decided controversy might help stir interest in their publication, so they knowingly published an idiotic (at best), bigoted (at worst) letter to the editor. Kudos, and hopefully mission accomplished. Maybe a few more jobs in print journalism will survive another day.
    Otherwise, the editors at SWIMMER magazine are themselves simply lazy and possibly stupid.
    The first amendment is neither here not there in this story. Censorship is also a non-issue.

    Posted by: shane | Feb 2, 2011 2:21:28 PM


  3. The link on the main page has an extra ".html" at the end:

    http://www.towleroad.com/2011/02/the-deep-end-of-the-first-amendment.html.html

    Posted by: BobN | Feb 2, 2011 2:40:37 PM


  4. Fixed - thanks.

    Posted by: Andy Towle | Feb 2, 2011 2:47:05 PM


  5. Hate speech has PLENTY of outlets.

    Posted by: Fenrox | Feb 2, 2011 2:58:25 PM


  6. I don't see how it's "censorship" to decline publishing a letter to the editor. For every such letter published by Magazine X, hundreds are not published for whatever reason. Whether or not any particular publication has a no-hate-speech policy is up to them - but if such a policy IS in place, it would be wrong to publish an anti-gay letter while citing that policy to refuse publishing an anti-latino letter.

    Posted by: Zlick | Feb 2, 2011 2:58:54 PM


  7. The issue here is a business issue at it's core. "Swimmer" is not an investigative journal or a thought-leader publication. It's a consumer magazine. They had the right to print that letter -- as disgusting as it is. What is surprising is that the Editor-in-Chief (and probably the Publisher) who had to read every page and sign off before it went to print made the incredibly stupid decision of publishing something highly offensive to a demographic that spends more money with the advertisers Swimmer is trying to sell space to than almost any other. (Not to mention who many media buyers are gay -- I'd hate to the Advertising Director for them now. It's very easy to take a mag like that off a media plan for any general consumer product -- cars/finance/travel/footwear etc.)

    The editors made an offensive decision in printing a letter (they probably disagreed with) but they should be fired for having so little sense of their market and their expendable place in the media-buying food chain that they printed something that has the potential to seriously harm, if not destroy, their brand.

    Posted by: Chris Gable | Feb 2, 2011 3:00:55 PM


  8. Members of Swimmer's editorial board (which is probably one or two people) either agreed with the letter or, more likely, sought to get free publicity. They've effectively played both sides of the issue, first publishing a letter that will play with bigots and then recanting. That they printed the hateful letter first (not in the middle, not at the end) indicates that they wanted it to get attention.

    I never would have heard of the magazine were it not for this story. I'd be curious to know how much of a focus Duckworth's homosexuality was in the original story, because aside from a paragraph or two it doesn't seem all that relevant to his swimming ability. Not that it should be hidden, obviously, I just don't see how it's all that relevant.

    Posted by: Paul R | Feb 2, 2011 3:03:04 PM


  9. Great column, Ari. Food for thought.

    And the magazine's apology ("We should have used better judgment...") was genuine, unlike most of the public non-apologies we get from celebrities and politicians ("Sorry if anybody was offended...").

    Posted by: JeffNYC | Feb 2, 2011 3:04:04 PM


  10. I can't help but wonder if the editors of Swimmer published this hateful letter to avoid being labeled as a "gay" magazine. Boys swimming in the US has taken a tumble in recent decades and many in the swimming community place blame on the Speedo swimsuit, which they fear has too much association with the gay community. Allowing such a letter to be published, perhaps, balances in their minds an internal fear that they will be perceived as gay. In any case, homophobia is certainly at the root of whatever decision ran through their heads.

    Posted by: John | Feb 2, 2011 3:16:42 PM


  11. I think the argument proffered by Mr. Waldman is whether a hypothetical law could or should be passed to prohibit hateful speech against homosexuality. My answer is no. Everyone is entitled to their opinion no matter how ignorant or vile it may be….. An exception is when the speech falls into the “fighting words” definitions in Chaplinsky v. New Hampshire. I think the greater question is why did Swimmer magazine – and other media platforms -- publish such drivel? When did the opinions of the lunatic fringe become news we must all read every day? I can’t image Walter Cronkite or Edward R. Murrow turning to the camera and saying: “ Here is what Sarah Palin tweeted today….”. I’m not sure if it’s a nadir in journalistic standards or the present state of being plugged with instant access to information – and media platforms looking for the a differentiating spin. In any event, the offensive writer should be able to send the letter to Swimmer magazine but they should not have published it. Not on the basis of mere content but using common sense that such crazy views should not use the magazine as a forum to spew hate.

    Posted by: Turing's Ghost | Feb 2, 2011 3:19:13 PM


  12. Oh, and while we can all see the parallels between this letter and one disparaging Jews or African-Americans, that isn't so clear to someone who believes that being gay is a "lifestyle choice."

    Not to mention, Glenn from SC probably hates Jews and African-Americans too.

    Posted by: Paul R | Feb 2, 2011 3:19:14 PM


  13. This is a typical example of "Oops, we offended some group, but got a lot of great PR". Magazines and TV shows do this all the time when sales or interest is lagging.

    And as we all know, magazines are dying off faster than flies in a blizzard. This one will hopefully die even faster. It's not a necessary publication for my world, and I doubt for many others, even swimmers.

    Posted by: johnny | Feb 2, 2011 3:22:12 PM


  14. ..and as another commentor stated......they would NEVER have published a letter against another minority....

    ..could you imagine IF the cover was of a African American swimmer..... would the Magazine print a letter from a racist stating that "Everyone knows Black people can't swim, this guy on the cover is an oddity" ?

    NO THEY WOULD NOT HAVE!

    Posted by: Disgusted American | Feb 2, 2011 3:27:54 PM


  15. Trade the word Homosexuality for Christianity and reread Glenn's letter. It's a lot funnier that way.

    Posted by: Edd | Feb 2, 2011 3:29:18 PM


  16. I am a member of US Masters Swimming and as such, receive Swimmer magazine regularly. Plus I am a longtime member of an LGBT swim team.

    What Glenn from South Carolina chose not to comment upon was a book review in the same issue of a memoir titled "Odd Man In" by Jeff Commings who is gay and Black and competes regularly.

    Glenn from South Carolina had the opportunity to tag two separate individuals with the "chosen lifestyle" phrase, but only went after the white man. It almost seemed that he aimed only for one target, one that seemed less likely to draw fire.

    As for a "chosen lifestyle", even that former head of Focus on the Family, James Dobson has said that being gay is innate. Poor Glenn can't even get his science right.

    Nothing will directly change Glenn's mind. However perhaps the people with whom he swims will treat him differently, as someone who has a great deal to learn.

    Posted by: Esther Blodgett | Feb 2, 2011 4:08:12 PM


  17. There is no First Amendment issue here, except that to say there is betrays a lack of understanding of the Constitution.

    Also, if such letters aren't printed then those views don't exist? Much better to know there are still homophobes about than to pretend they've all disappeared. I've had heteros tell me we don't need ENDA, for example, because there is no discrimination against gays anymore... because it isn't cool to say it out loud. Are they right? Of course not!

    Posted by: Anastasia Beaverhausen | Feb 2, 2011 4:31:49 PM


  18. For starters, no rights were violated here. The letter-writer has a right to say what he did. The magazine has a right to publish or not publish that letter.

    Now, did the magazine do a good thing by publishing it? I say yes, especially in how they did it. They published it alongside other more positive letters. In doing so, they exposed the letter writer as not the norm, not a good or proper response.

    If we do not expose the condemnation of those against us, we will never win the support of those in the middle. There are wide swaths of people who don't really care. They don't care if we get married or not. We won't win their support by arguing, "Hey, we deserve this!" We are more likely to make them allies by showing that people are actively fighting against us, trying to keep us down. Much of middle will see that injustice and not want to associate with it.

    Posted by: Matt S | Feb 2, 2011 4:38:04 PM


  19. Swimmer magazine did what it did because it exists in a media culture that feels that it's providing "balance" every time it offers a report on anything even touching on a GLBT person or issue by providing an outlet for an "opposing" anti-gay voice. The cable news networks often do this, too.

    It is, of course, a ridiculous and offensive practice. They don't similarly run to David Duke or a Klansman for "balance" every time they profile, say, Denzel Washington. If they profiled Shaquille O'Neal and then included a racist diatribe from a reader in their letter column about the article, everyone (except hardcore racists) would think they were staffed by insane, loathsome creeps. But it's regular practice-- again, the "gay exception"-- by the media.

    I'm glad to see people are finally calling outlets like this magazine on this offensive practice. It's not a "free speech" issue any more than it would be to make a ludicrous charge that NBC is violating people's free speech by not broadcasting "The Neo-Nazi Variety Show" every Wednesday night. It's true, Swimmer magazine can publish whatever it wants, but I suspect they included this letter because like much of the media they lazily bought into the idea that they were providing "balance" without giving a second thought as to what they're really doing: attempting to suggest there's "balance" not between two ideas in a respectful disagreement, but between bigotry and rationality. Maybe next time, they'll think again.

    Posted by: bobbyjoe | Feb 2, 2011 5:03:03 PM


  20. This is a lesson that has to be taught over and over again. The same thing happened at Runner's World magazine in 2006. http://guydads.blogspot.com/2006/07/letter-to-runners-world-about-bigots.html

    Posted by: GuyDads | Feb 2, 2011 5:17:11 PM


  21. Why the controversy ? .I think it's good that the letter was published. The views are hardly a surprise to anyone are they ? Better to expose and demolish the arguments with easily reasoned rebuttals than to sweep such views under the carpet and give the false impression that homophobia is a rare thing.

    Posted by: Den | Feb 2, 2011 5:41:11 PM


  22. here's the response I got from the editor when I canceled my subscription:


    This email response is being sent to everyone who has written in about Glenn Welsford's letter expressing a backwards and intolerant view of the LGBT community, a view that is NOT shared by me personally or by anyone on staff at USMS.

    Thank you for your letter. Normally I would not respond personally to letters to the editor, but because of the emotional letters I have received, I did not want to give the impression that nothing was happening behind the scenes at SWIMMER. With only six issues per year, you would not see your letter or read any type of response until the March-April and/or May-June issues.

    It was not my intent to cause anyone any pain with the printing of the letter in question, only to shed light on the fact that there is much work to be done, even in the very diverse, accepting and inclusive subculture we call USMS. I have written about this in several previous editorials, so Mr. Welsford's letter, which surprised and saddened me, was somewhat of a wake-up call.

    Although you may not believe that I deserve it, I am asking for your trust that my motives were not driven by intolerance or sensationalism, but by a constant pursuit of openness and honesty-- even when it is uncomfortable. It is my hope that you will look to the next two issues of SWIMMER for more on this topic. If you were personally hurt by reading Mr. Welsford's words, I am truly sorry-- that was not my intent in printing them.

    Regards,

    Posted by: Joe | Feb 2, 2011 7:49:20 PM


  23. I'm glad they published it. Don't erase - expose!

    Posted by: Paul | Feb 2, 2011 7:52:55 PM


  24. What I would do is get a videocam, go to Glenn Welsfords'house and take a footage of the house, facade, interview neighbors, family members, church members, businesses he patronizes and so on. On post-prod, reprint his hate letter as a running text on the bottom screen, like a news flash. Annotate his every effort to avoid being photographed or confronted, but invite him to hold up a Bible, book-mark ready on Leviticus, and be ready to rebut with the relevant verse, still in Leviticus, that the consumption of shelfish is against the laws of god, and that mixing your crops in one field offends god, too, and tell Mr. Welsford that he can't choose which of god's word to obey - he must obey all. And while he's at it, he must revisit the curse of Ham if he's still looking for a Biblical justification for that nagging but no longer utterable feelings that he has that colored people are taking away what's rightfully his.

    Posted by: Manny Espinola | Feb 3, 2011 6:16:01 AM


  25. On their website, the executive director and editor in chief do a much longer response than what was quoted here--basically saying they hadn't lived up to their own standards and mission--fully accepting that and promising to clarify their editorial policty to prevent such incidents in the future. Also not mentioned here is their statement: "Recognizing the pain and anger that Mr. Welsford’s letter may have caused, we have destroyed all remaining issues of SWIMMER that would have been mailed to members who register past the mailing date and removed his letter from the online version of SWIMMER."

    I went into more detail here on our agency's blog (Compete-"We Are Gay Sports"): http://www.competenetwork.com/blogs/421-us-masters-swimming-formally-apologies-for-homophobic-letter-to-editor

    Posted by: Eagledancer | Feb 3, 2011 6:39:50 AM


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