30 Years After Courtroom Win for Gay Student Group, Former Plaintiff Still Demands Free Speech for His Opponents

It can be easy to forget the importance of standing up for the free speech rights of those you disagree with—even more so when your views enjoy widespread support. But looking back at the changing tides of public opinion can remind us why it is essential to defend the underlying values of free speech, rather than just defending particular speech for the sake of one individual cause.

Providing us with just this sort of reminder, Wednesday marked the 30th anniversary of the Supreme Court’s decision to let the United States Court of Appeals for the Fifth Circuit’s opinion in Gay Student Services v. Texas A&M University stand. In a column for the Texas A&M University student newspaper The Battalion, former student Marco Roberts reflected on his successful lawsuit and his courageous public battle for free speech at a time when the views he espoused were frequently met with fierce resistance and enjoyed little, if any, public support. Roberts notes:

In 1985, at Texas A&M there were almost no openly gay people. … In a campus of 38,000 people, and a metro of around 90,000, I was “the gay,” with all the consequences you might imagine that entailed. Aggies in school today might not realize just how much the campus was roiled by the controversy of GSS on campus.

In Gay Student Services, the Fifth Circuit held that Texas A&M violated the First Amendment when it denied recognition to prospective LGBT student organization Gay Student Services (GSS). Despite its post-hoc, disingenuous claim that GSS was a “fraternal” organization not entitled to recognition under university policy, Texas A&M was fairly transparent about its reasons for denying the club recognition. As the Fifth Circuit noted in its opinion:

First, Koldus asserted that because homosexual conduct was illegal in Texas at that time, it would be inappropriate for TAMU officially to support an organization likely to “incite, promote and result” in homosexual activity. Second, Koldus stated that the TAMU staff and faculty, not TAMU student organizations, were responsible for providing referral services, educational information, and speakers to students and the larger public. Thus, Koldus concluded that the stated purposes and goals of [GSS] were not "consistent with the philosophy and goals" of TAMU.

So strenuous and clearly viewpoint-based was the objection to an LGBT group on campus that the Texas A&M Board of Regents approved a policy position expressing the university’s intent to use any and all means possible to deny recognition to GSS. The Fifth Circuit quoted Board minutes as stating:

So-called “gay” activities run diabolically counter to the traditions and standards of Texas A & M University, and the Board of Regents is determined to defend the suit filed against it by three students seeking "gay" recognition and, if necessary, to proceed in every legal way to prohibit any group with such goals from organizing or operating on this or any other campus for which this Board is responsible.

Fortunately, the Fifth Circuit saw clear through Texas A&M’s arguments. Relying on the Supreme Court’s strong defense of student groups’ First Amendment rights in Healy v. James (1972), the Fifth Circuit called the university’s actions precisely what they were: unconstitutional viewpoint discrimination.

Thirty years later, public opinion has shifted dramatically. And though LGBT students are by no means out of the censorship woods, those who stand on the other side of issues like same-sex marriage now often find their ability to speak on campus challenged on the grounds that such speech is “hurtful” and “discriminatory” and makes students feel “unsafe.”

Roberts might have simply stuck to celebrating a victory for his cause. But in his column, he instead drew on the experience of defending unpopular speech that later—through the persistence and power of persuasion only possible because of free speech—gained popular support to remind us why the benefits of GSS’s victory must be afforded equally to those who opposed it:

This is not about being pro or against gays. It is about the fundamental concept of the freedom of speech, the most fundamental of all political rights.

[...]

Many of my GLBT compatriots tell me that those who oppose gay marriage are trying to “hurt us” and thus have “no right” to their views. Well I say that no one has a right to come into the public space and demand fundamental change to everyone’s laws without arguing their case and subjecting it to debate.

Commenting on current sociopolitical debates over same-sex marriage and discrimination against LGBT couples by businesses (issues on which FIRE does not take any position), Roberts notes that many of those people who vehemently disagreed with him nevertheless treated him with respect and cordiality, and that he “refuse[s] to go along with the idea that anyone who opposes gay marriage is automatically a monster.”

A system of free speech fosters this core value of open-minded epistemic humility—the acknowledgement that you may not always be correct, and that even if you are, your ideological opponent is not a monster and is at least worth hearing out.

Why is epistemic humility so crucial? Justice Oliver Wendell Holmes, Jr. put it most eloquently in his description of the “theory of our Constitution” in his famous dissent in Abrams v. United States (1919):

If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. … But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Roberts echoes these sentiments in his forceful argument that those advocating for social, political, and legal change are best served doing so with “rigorous debate, free from intimidation, so we are all clear on the long-term consequences.” Indeed, like noted gay rights and free speech activist Jonathan Rauch, Roberts reminds readers that a system of uninhibited debate, where ideas and norms are challenged and discussed openly, is how activists “advanced gay rights, and how in the last 150 years we have achieved a new ascending national consensus of what American liberty and civic equality should mean.” Such activism and persuasion would not have been possible had unpopular and controversial opinions been censored and stifled.

It is important to remember that being offended is how we learn, and many—if not most—ideas that eventually gain popular approval start off as offensive. Nowhere is this concept more important than on a college campus, which is quintessentially the place where ideas are debated and knowledge is created. Before calling for the silencing of “hurtful” views or ideas, students should heed the lessons learned by those who once espoused unpopular ideas that would have been censored if authorities had their way, but have now found their way into the mainstream. Roberts commendably concludes:

To this day I remember those fellow Aggies who told me personally that they totally opposed what I believed, but would stand up for my right to say it—and they did. I intend to forever return the favor.

Check out Roberts’s full ruminations on The Battalion’s website.