The passage of Proposition 8 in California a year ago unleashed a troubling new strategy in the movement to extend marriage rights to same-sex couples: public shaming.  In an effort to slow down the ever-increasing use of propositions and referenda that forestall or overturn court or legislatively created marriage rights for same-sex couples, some advocates have been pushing hard to publicly disclose the names of people who sign petitions that get these measures on the ballot or who make donations to the organizations that support them.

The thinking goes like this: there ought to be some cost to supporting these homophobic (or at least same-sex marriage -ophobic) propositions/referenda through your signature or financial contributions.   Shame on you.  And we’ll bring shame on you by publicizing your name on the internet and elsewhere.  (See, for instance knowthyneighbors.org.)  You may then risk boycotts or picketing and angry gay people showing up on your front lawn throwing rotten lavender fruits at your home.  As the Wall Street Journal reported last winter about the fall-out after the donors to the Yes on Proposition 8 campaign were revealed:

A Palo Alto dentist lost patients as a result of his $1,000 donation. A restaurant manager in Los Angeles gave a $100 personal donation, triggering a demonstration and boycott against her restaurant. The pressure was so intense that Marjorie Christoffersen, who had managed the place for 26 years, resigned.

After all, what’s wrong with making the people who support these retrograde propositions face some kind of public accountability for the role they play in the denials of lesbian and gay people’s civil rights?

Well, first off all, isn’t there something rather, um I don’t know, ironic about gay people seeking to use shame as a political tool to combat their enemies by dragging them out of the closet?  I know, we heard this argument in the 1980s and 1990s when “Outing” was in fashion, and the likes of Michael Signorile sought to “out”  gay public figures who took positions hostile to the lgbt communities’ interests.

But maybe there’s something a bit different than the same form of “outing” going on now.  The current political and legal strategy to force disclosure of supporters/contributors to anti- marriage equality measures smells a lot like the strategies that were used by racists, anti-communists, anti-unionists, and others in the 1950s and 1960s when they demanded that organizations such as the NAACP, the ACLU, the National Lawyers Guild, unions, SDS chapters, the Social Workers Party among others divulge their membership lists.  There was a spate of Supreme Court cases in this period that found pretty consistently that these disclosure laws violated the First Amendment associational rights of the members of these organizations.  This was particularly the case when, as the Court held,

There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and presures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names.

This language came from Bates v. City of Little Rock, the 1960 case that challenged the Arkansas law forcing the NAACP to disclose the identity of their membership.  But it could just as well describe the current aims and effects of efforts to gain disclosure of anti-gay marriage supporters.

Perhaps more important, it was quite common for public and private actors to seek disclosure of the membership lists of various lesbian and gay rights organizations not so long ago.  After all, until recently, the membership of the organizations was made up of felons – admitted sodomites.  Perhaps we’ve forgotten what a risk we all felt we were taking when we joined the Daughters of Bilitis or the Mattachine Society, or what courage it took to subscribe to their magazines – The Ladder and the Mattachine Review.

Today, in New York, San Francisco we take it as common-place, if not irritating, when we are stopped on the street by the young person with an HRC clip-board paid by the hour to get new members, and thus membership in lgbt organizations seems like such a trivial matter.  But joining these organizations is not a trivial matter everywhere in the U.S. and not that long ago it wasn’t in the homo-metropoles either.  (Notably, the lesbian and gay lawyers organization in San Francisco still has a closet name: BALIF- Bay Area Lawyers for Individual Freedom, and not too long ago New York’s lgbt lawyers group was called BAHR-GNY – the Bar Association for Human Rights of Greater New York.)

A rather shocked colleague commented to me after I gave a paper the other day:  “Katherine, you really are a radical,” and it’s true, but I don’t countenance strategies committed to “by any means necessary.”   Just as I didn’t support liberal groups’ plans in 1990 to queer-bait David Souter on account of his being unmarried when he was nominated to the Supreme Court, I find myself recoiling at today’s turn to shaming as political tactic.

There are important issues at stake in the disclosure of the names of those who support these propositions we abhor.   Associational rights have been highlighted in the Supreme Court’s discussion of this strategy in other settings, but there are important concerns of chilling political participation, privacy, and the anti-deliberative impulses of mob-based retribution as well.  Then there’s the goose and gander issue – just because the climate in some places right now might make disclosure of these names “useful” to the marriage equality movement, that doesn’t mean that we aren’t establishing a precedent for a strategy that will likely come to bite us in the butt in the future – or bite the butts right now of allied movements whose vulnerabilities we ought to be keeping in mind (try giving a donation to a benevolent organization in Iran or Palestine these days, as I have: you know your donation cannot be made anonymously).

Sure, I delight in these moments riddled with schadenfreude as much as the next person, but as my mother used to say, that doesn’t make it right.

Iranian President Mahmoud Ahmadinejad is back in New York for the annual fall gathering of heads of state at the U.N. General Assembly meeting.  As expected, his remarks to the body on Wednesday provoked outrage, walkouts, and general condemnation by various states and the media.  If all you did was read the press reports about it, you’d think that in his speech he once again denied the fact of the holocaust and threatened to wipe Israel off the map.  In fact, if you watch the speech, or read it, it’s much less inflammatory than the media reported, and in some respects merely echoes the condemnation of Israel’s invasion of Gaza contained in the report issued by the UN Human Rights Council Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone.  It’s interesting how any criticism of Israel is read as anti-semetic in this setting.

I mention Ahmadinejad’s speech because it’s hard to believe it’s been two years since he came to Columbia University as part of our World Leaders Forum.  As you may recall, Columbia University President Lee Bollinger “introduced” President Ahmadinejad with an anticipatory condemnation of what the Iranian President might say, calling him “a petty and cruel dictator,” and closed with the charge that “I doubt that you will have the intellectual courage to answer these questions.”  The tone and content of the introduction drove some members of the University faculty to bring to the full arts and sciences faculty a motion criticizing Bollinger for violating core principles of academic freedom.  See more here.

What garnered the greatest attention from President Ahmadinejad’s talk, however, were his remarks in response to a question about the mis-treatment of women and homosexuals in Iran.  He declared: “women in Iran enjoy the highest levels of freedom,” and then asserted that “In Iran we don’t have homosexuals like you do in your country.  We do not have this phenomenon. I don’t know who’s told you that we have it.”  The media frenzy in response included a New Yorker Magazine cover tying the Iranian President to Larry Craig.

Lesbian and gay human rights organizations the world over immediately condemned these remarks as ignorant and hateful.  “Of course there are gay people in Iran – we are everywhere!” they proclaimed.   But Ahmadinejad’s remarks and the responses they received demand much more complex thinking about the role of lesbian and gay human rights in global politics.  For this reason I’ve written a short paper trying to offer one such thicker reading of what happened when President Ahmadinejad came to Columbia.   I’m giving it as part of our Feminist Theory Workshop series next Tuesday, and you can read the draft here.  But it concludes:

Once we recognize that the normative homosexuality that undergirds human rights discourse is not merely a “fact” in the world, but more of complex value, it becomes easier to see how the state’s embrace of the sexual citizenship of these new human rights holders risks rendering more vulnerable a range of identities and policies that have refused to conform to state endorsed normative homo- or hetero- sexuality.  This is true both for queers whose desires refuse to orient themselves ineluctably toward marriage, or Muslims with sexual norms and practices of polyamory, homosociality, and modesty.  Under this scenario, newly patriotized gay subjects find themselves implicated, whether they want to or not, in the construction and identification of the “enemies of the state.”   Witness the ingenious strategy of StandWithUs and the Israeli Foreign Ministry to appeal to gay rights supporters in their efforts to shore up Israel’s foreign policy with respect to Palestine and Iran.

So does this discussion leave us helpless in the face of a critique that eschews both the epistemic violence of securing human rights for global gay subjects on the one hand, and state politics as cynical, manipulative, instrumental and tragic on the other?  To be sure, this is where some find themselves.  But we can do better than that.  Critical awareness of the state’s role as now-fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

The moral atrophy that has kept us from recognizing the tragedy of these strategies and outcomes is where more critical, and indeed discomfiting, work needs to be done.  By theorists and activists alike.  This means rethinking the horizon of success in this work.  “Victory” in the sense of gaining the state as a partner, rather than an adversary, in the struggle to recognize and defend LGBT rights ought to set off a trip wire that ignites a new set of strategies and politics.  This must necessarily include a deliberate effort to counteract, if not sabotage, the pull of the state to muster rights-based movements into its larger governance projects, accompanied by an affirmative resistence to conceptions of citizenship that figure nationality by and through the creation of a constitutive other who resides in the state’s and human right’s outside.

The Supreme Court has been busy this week thinking about dirty language and pictures. In two cases, they affirmed efforts to censor speech about matters sexual or profane. One case involved an FCC fine levied on CBS for Janet Jackson’s now well-known “wardrobe malfunction” during the Super Bowl halftime show in which a part of her body was exposed on live national TV. The other case dealt with the FCC’s “fleeting expletive” policy that threatened fines against television broadcasters should they air accidental “fleeting” expletives. The controversy arose in March 2003 when U2 lead singer Bono uttered the “f-word” during a broadcast of the Golden Globe Awards.

These two cases raise interesting issues for those of us interested in gender and sexuality law. What should count as “indecent” or “profane” for the purposes of risking FCC censorship and fines? Why is Janet Jackson’s anatomy any different from the anatomy of native women frequently broadcast on public television shows? Worse, we were watching the first season of “The Wire” on Netflix last weekend and in one early episode the detectives showed over and over and over a photograph of a naked African American woman who had been shot in the chest. After the fourth or fifth time, we screamed at the TV – “stop showing that photograph!!” It was necrophiliatic voyeurism – but didn’t overstep the FCC’s rules because it was on HBO.

But I raise these issues now, not to offer a trenchant analysis of the concepts of indecency and the First Amendment, but for another purpose having to do with what it means to write about them on a blog. Anyone who knows me and my writing will notice that I am not one to avoid the fully spelled out versions of the “F- or S- words”, or to refer to the upper part of a woman’s body as her “chest” or “anatomy” as I have above.

Google and other search engines have made me censor myself – or at least have made me aware of some of my readers whom I didn’t intend to reach. When I write on this blog, as I have in the past, using terms that refer specifically to women’s body parts, to sexual harassment, to rape, to sex trafficking, even to particular sex acts that come up in cases or in real life, I get lots of hits from people searching the internet for those terms. They aren’t looking for our thoughtful analysis of gender and sexuality law emanating from Columbia Law School. No, they just want to get off.

For instance, on December 4th I wrote about a case that had just been argued in the Supreme Court having to do with Title IX, the federal law prohibiting sex discrimination by recipients of federal funds.

The facts had to do with the sexual harassment of a girl by other children on the school bus – and I described the facts in the blog post. My “usage statistics,” as we call them in the blogosphere, went WAY up – tons of people found their way to the blog to read about this important new case in the Supreme Court. Well, not quite. Actually, what I got were lots of pervs who put search terms in google and other search engines and ended up at my blog. Call me naive, but I was shocked. By the time the Court issued its opinion a month later, I wrote a very sanitized post – directing readers to the opinion, rather than recharacterizing its facts and drawing a skeevy unintended audience who were more interested in girls and school buses than Title IX.

Writing for a blog is an interesting, and at times strange, experience – I know more about my blog readers than I possibly could when I publish in a law review or scholarly journal. But I find myself now quite self-conscious about what words I use in the posts, and censor myself in ways I wouldn’t in a law review (though I had a terrible fight with an editor at the Columbia Law Review several years back about my refusal to capitalize the word “god,” and have had other tussles with law review editors about other words they thought profane – but which I won’t repeat here because I have my perv-filter up!). There are “bots” that scan every blog post and post hundreds of comments that are really just ads for pornography (there is a filter that keeps out most of them, but now having used the “p-word” I’m in trouble), and then I get no small number of searches that end up at my blog that are really trying to figure out the sexual orientation of my colleagues like this: “Is so and so gay?”

But this is the quandry – as someone who is sex-positive, writes about “Theorizing Yes,” and queer theory more generally, I have found I have installed a little censor who sits on my shoulder when I write, imagining the creeps who will end up at the blog if I use this term or that phrase. So I choose sometimes rather convoluted ways of saying things to confound the search engines. Hopefully I don’t sacrifice content – but there is a degree to which one’s blog posts risk becoming the props of pervs. In my earlier published writing I’ve intended to meld titillation with scholarly inquiry, such as my first academic article which was a review of Madonna’s book Sex. But that’s not my aim in this forum.

But then, in the immediate aftermath of Eve Sedgwick’s passing, it is particularly problematic to insist on such a distinction – between that which is intended for enjoyment or consumption by the body vs. that by the mind. There is, to be sure, an erotics of scholarship that cannot be denied. And, just as I want to control what “is” erotic and what “isn’t,” I want to control the kind of pleasure my readers get from reading these posts.

This is the same fool’s errand that the Supreme Court has been on in its recent cases parsing the indecent (Janet Jackson’s exposed breast at the Super Bowl) from the sacred (the Ten Commandments displayed on public property), and the profane (Bono’s language at the Golden Globes) from the holy (campaign contributions as deomocratic speech).