As LGBT Americans, we know the poisonous things that grow in silence, in whispered, half-heard words, in the darkness of the closet. It is therefore important for us to exercise our rights as Americans to speak, to call attention to hateful words spoken behind closed doors, and cast light on these beasts before they harm anyone. Our Constitution’s guarantee of free speech was fashioned to assure unfettered interchange of ideas to bring about of political and social change. In this struggle for LGBT political and social equality, the right to uninhibited and robust debate could not be more important to us—or more threatening to our opponents.
A case recently decided by the Wisconsin Supreme Court illustrates just how horrible things can get behind closed doors and how threatened our opposition can feel when we call the public’s attention to the situation. Unlike many of the cases I write about in this column, I participated in this case from the start as the attorney for Fair Wisconsin (then named Action Wisconsin). I am also proud to report that our Supreme Court’s decision sent a message that it does not pay to try and shut down political debate; instead, it may cost you. Here’s what happened:
In October 2003, Grant Storms, a New Orleans preacher who has received national media attention for his efforts to stop the “gay Mardi Gras,” a/k/a Southern Decadence, came to Wisconsin. He came to speak by invitation at the “International Conference on Homo-Fascism.” Fair Wisconsin, busy trying to defeat legislative efforts to ban gay marriage, obtained a recording of his speech and officials were horrified by what they heard.
In his speech, he drew an analogy between the “homosexual movement” and the Philistine Army in the biblical story of Jonathan and his armor bearer. Early in his talk, he described our movement as a Philistine army that wants to eliminate those like Storms and his audience: “It’s us or them. There’s no in between. There’s no having this peaceful co-existence. They have to eliminate us and the Word of God if they want to succeed. It’s almost like communism and capitalism. It’s going to be one or the other. You can’t have both. …Either they’ll crush us and have laws and silence us and kill the ones that won’t be silenced or imprison the ones that won’t be silent, or the church or the Lord Jesus Christ will rise up and say this is a Christian nation. This is the way it will remain. Go back in the closet.”
Storms decried the modern church for sitting around and hiding, rather than battling “the enemy.” He said it was time to begin “taking it to the streets” because his cause had not made enough progress in legislatures and courts. He expressly warned against heeding those who would discourage listeners from “going out and beating up the Philistine army” on their own. He relayed in this way the moment when Jonathan killed the first twenty Philistines: “Wheeew! Come on. Let’s go. God has delivered them all into our hands. Hallelujah! Boom, boom, boom, boom, boom. There’s twenty. Whew. Ca-ching. Yes. Glory. Glory to God. Let’s go through the drive-thru at McDonald’s and come back and get the rest. “
After listening to Storms’ whole speech, which lasted about an hour, Fair Wisconsin issued a press release alerting the public to this conference and the fact that a state Senator attended it, during a time that the legislature and public were debating a proposal to limit the legal rights of LGBT people. The press release quoted several speakers including Storms, noted that Storms made sounds like gunfire as if he were shooting gay people, and described the speech as apparently advocating murder. Storms disagreed with Fair Wisconsin’s interpretation of his speech, but instead of using his access to the press to explain that was not what he meant, he demanded Fair Wisconsin retract its statements. When Fair Wisconsin refused, Storms sued Fair Wisconsin for defamation.
The trial court dismissed the case, finding that no reasonable jury could find for Storms. This finding was in large part because in order to succeed, Storms, a public figure, would have to prove that Fair Wisconsin spoke with “actual malice,” which is defined as speaking while 1) knowing it is false, 2) knowing it is probably false, or 3) having serious doubts as to its truth. Instead, the trial court found that Fair Wisconsin’s interpretation of Storms’ words was reasonable. Having expended considerable resources to defend its right to speak, Fair Wisconsin asked the trial court to order Storms’ lawyer to pay Fair Wisconsin’s reasonable attorney’s fees as a sanction for bringing a frivolous lawsuit. The trial court agreed and ordered the lawyer to pay over $87,000 in fees and costs.
That decision was appealed all the way to the Wisconsin Supreme Court, which agreed with the trial court: Fair Wisconsin’s interpretation was reasonable, and the attorney deserved to be punished for bringing a frivolous case. The Supreme Court also emphasized that free speech considerations were important in this case: Storms had argued that because Fair Wisconsin and Storms were ideological opponents, this could be used to prove that Fair Wisconsin spoke knowing that the press release they issued was probably false. The Court explained, “To maintain that where a statement furthers one’s political views there is evidence of actual malice would undermine the very protections that justify the actual malice requirement in the first instance.”
The Supreme Court’s decision makes it clear that the response to objectionable speech is more speech, especially in the context of politics and social issues. Through exposing the flawed, twisted and hateful thinking behind efforts to disenfranchise us, we can win the debate. So keep talking. Keep demonstrating we too are human, and endowed by our Creator with “certain unalienable rights,” including “Life, Liberty, and the pursuit of Happiness.” We will get there.
*Links to the complete decision in Donohoo v. Action Wisconsin, 2008 WI 56, including a complete text of the Storms speech, can be found on the Wisconsin Supreme Court’s website, or at www.cwpb.com/news.