Vanderbilt Law Review


Brent H. Allen

First Page



"Homosexuality is today essentially a form of political, social, and moral dissent on par with the best American traditions of dissent and even subversive advocacy.... Those that support criminalization find today in homosexuality what they found before in the family planning of Sanger, the atheism of Darwin, the socialism of Debs, or the Marxist advocacy of the American Communist Party."

Ostensibly, the First Amendment guarantees all people freedom of expression of every belief. The free exchange of ideas forms the basis of a democratic government. Only citizens with unhindered access to the famed "marketplace of ideas" can participate meaningfully in a dialogue and achieve political and social solutions that the community will respect. For this reason, courts balk at even the suggestion of limiting expression that might function as political or social advocacy.

Despite the seemingly boundless tolerance our judiciary purports to extend to all ideas, however, courts deny much expression the full protection of the First Amendment because of the expression's form and content. Specifically, courts exclude from protection speech deemed not to contribute significantly to the civil discourse of ideas that the First Amendment seeks to maintain. For example, the Supreme Court has excluded from protection "fighting words," obscenity, sexual harassment, and the advocacy of illegal acts. Thus, the Supreme Court has determined that certain classes of speech, although arguably expressive, do not advocate concepts protected by the First Amendment.