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.
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...