My quote earlier today of Irving Kristol’s argument that advocacy of homosexuality should be constitutionally unprotected led me to look up again his entire comment. Here is the material most relevant to the free speech question (again from Sex and God in American Politics; What Conservatives Really Think, Policy Review (Heritage), Summer 1984):
[T]hose local communities that want to restrict public homosexuality or the advocacy of homosexuality should in my opinion be free to do so. I don’t think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does. The First Amendment was intended to apply to political speech, not to all forms of “expression,” as some people now seem to think.
This, I think, is an excellent example of the weakness with some (though not all) of the “First Amendment only protects political speech, so it doesn’t protect X” arguments. I agree that the First Amendment wasn’t intended to apply to all forms of expression. (Libel, for instance, was pretty broadly understood to be outside the scope of the freedom of speech, though it wasn’t clear how much power Congress, as opposed to other institutions, had to regulate it.) But even if the First Amendment is limited to protecting political speech, why doesn’t advocacy of homosexuality qualify?
Clearly advocacy of government action regarding homosexuality — decriminalize it, ban sexual orientation discrimination, and the like — is political speech. But how can people sensibly debate such government action without also figuring out whether homosexuality is good, moral, healthy, satisfying for its practitioners, and so on? And to figure that out, we naturally need to hear arguments that advocate homosexuality, in the sense of saying that it’s a proper, beneficial, satisfying, moral lifestyle, as well as arguments that oppose homosexuality, in the sense of saying that it’s an improper, harmful, unhappiness-inducing, immoral lifestyle.
So even if one takes a “political speech only” view of the First Amendment, which is that the First Amendment protects only speech that contributes to the voter education needed for democratic self-government, advocacy of any behavior that might potentially be the subject of government regulation (which is to say, advocacy of any behavior) must be constitutionally protected, precisely because it is necessary for voters in a democracy to make up their minds about the behavior.
(Even setting all that aside, the First Amendment surely protects speech on religious subjects as well as political subjects, so surely the defense and advocacy of homosexuality on religious grounds would be constitutionally protected on those grounds as well.)
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