Early this month, a group of Republican attorneys general sent a letter to Target complaining about the store’s Pride Month merchandise celebrating LGBTQ people. They characterized the products Target offered, including T-shirts that said “Girls Gays Theys” and merchandise depicting a person dressed in drag, as potentially violating state obscenity laws. Their theory seems to be that exposing children to speech celebrating LGBTQ people is somehow harmful to them.
Legally, Target is free under the First Amendment to sell T-shirts celebrating LGBTQ communities. Perhaps the attorneys general don’t want corporations to have First Amendment rights when they are expressing disfavored messages, but the Supreme Court has held otherwise. Furthermore, under current law, obscenity is material so graphic and sexual in nature as to shock the conscience, and it is not protected by the First Amendment. Run-of-the-mill pornography, such as images in Playboy or the content of an estimated 13 percent of all tweets, does not qualify.
If Playboy and Twitter porn (generally) are not obscene, then neither are T-shirts printed with the word “gay” or showing a person wearing clothing that does not conform to gender norms.
Practically, many children are being raised by LGBTQ parents and many themselves are gay, lesbian, trans and non-binary. They deserve to see and share positive messages about themselves and their families in Target, in schools, in libraries, and really, everywhere else.
History shows that inclusive policies toward LGBTQ people do not harm those who are not LGBTQ. But there is a strong argument to be made that undermining these positive messages can have dangerous consequences for LGBTQ individuals and their families, and certainly, in a free society, their expression must be protected equally.
This campaign to eliminate LGBTQ speech from constitutional protection is growing. Republican lawmakers now consistently attempt to define simply being LGBTQ or mentioning this community in public as obscene and, therefore, not protected by the First Amendment.
The aforementioned letter represents where they want the law to go — towards excluding speech that celebrates or depicts LGBTQ lives positively from the sphere of protected speech. This wouldn’t be the first time that right-wing extremists have campaigned to create a tectonic shift in constitutional doctrine.
The Supreme Court’s recent decision in 303 Creative v. Elenis, which considered whether a website developer could be required to offer her publicly available wedding design services to gay couples is part of this trend. While no one should be forced to express views they do not hold, the court’s decision to take this case and cut a vaguely-defined hole in longstanding public accommodations law risks opening the door to increased discrimination on the basis of sexual orientation. The decision was the culmination of a long campaign by religious conservatives to gain the legal right to discriminate against LGBTQ people in offering certain services to the public.
Legislators advancing the recent wave of legislation to restrict drag performances claim that drag shows are obscene, regardless of their content, and can be restricted to protect children. Efforts to ban books in K-12 schools disproportionately target books containing LGBTQ characters or themes, under the theory that — simply acknowledging that they exist — is “sexually explicit” and inappropriate for children.
At least 24 states have proposed and three have passed laws that prohibit teachers from instructing children on matters of “sexual orientation or gender identity.” These so-called “Don’t Say Gay” laws may be construed, for example, to prohibit a female teacher from telling her students she is married to a woman.
It’s tempting to think that obscenity could never be interpreted to include a T-shirt that says “Girls Gays Theys.” But the threat is real as we watch the Supreme Court render decision after decision redefining the scope of what is permissible in public life.
Excluding LGBTQ speech from constitutional protection could lead to erasing LGBTQ people in books, media, film or television, impacting everything from Virginia Woolf to the Max series, “Our Flag Means Death.” This would move us backward to days of laws prohibiting people from loving the person of their choice. We can never forget that it wasn’t that long ago that gay relationships were criminalized.
The letter from the attorneys general provides evidence of an effort to create a carve-out from the First Amendment for a range of speech about LGBTQ identities. To prevent this, we must forcefully defend the principles of robust, vibrant and wide-open free expression, especially when politicians in power pursue censorship as policy. Otherwise, we cede ground to those who would patiently and methodically, take our hard-won freedoms away, piece by piece.
Kate Ruane is Sy Symms director of U.S. Free Expression programs at PEN America.