It started when a friend called this sign to my attention. It's on Hwy 167 a 100 yards or so from the Richfield Elementary School.
"Hmmm," I said.
May one shout sodomite in a crowded theater?
Just west of Richfield Elementary School along Highway 167, someone has erected a sign that reads SODOMITES WILL STILL BURN IN HELL REGARDLESS OF NEW ‘HATE CRIMES’ LAW. It reminded me of the huge OBAMA IS THE ANTI-CHRIST sign that appeared on a front lawn in West Bend just before the election last year, right beside an even bigger Halloween display – I guess it’s OK to celebrate pagan festivals, if candy is involved. That sign seemed to be a clear case of protected speech, even if I am left unable to distinguish it from a Taliban press release.
Sodomites, too, is a phrase of religious origin, but its presence in big capital letters near an elementary school raises some interesting questions about the limits of free speech.
For instance: what if, instead of using words, the landowner had used pictures to deliver his message? Would a picture of two people engaged in sodomy, burning in hell, be acceptable. Would the picture be OK if it was an abstract painting of sodomy? Or would stick figures be more acceptable, say, than a high definition photograph? Shoot, how about a giant JumboTron video screen with a live action DVD playing on a continuous loop during school hours?
In some weird way, the stick figures might be more unsettling.
However you draw it, someone would have complained.
But where do we draw the line on offensive speech shouted in public?
What if the sign contained other, even more obscure, sexually explicit terms? Does lack of familiarity with a word make it less offensive? Or what about one of George Carlin’s “Seven Dirty Words You Can’t Say On TV?” I mean, if the newspaper can’t print them, should neighbors be expected to tolerate them on a yard sign?
I thought of other avenues of protest and wondered whether the sign maker could get vanity license plates that say H8SODOMY? Probably not. The relevant Wisconsin Department of Transportation statute says the DOT may “refuse to issue any combination of letters or numbers, or both, which the department determines may carry connotations offensive to good taste and decency or which may be misleading.” (Sec. 341.145 (7), Stats.). There are some sneaky and amusing, but mostly unprintable, examples at The Smoking Gun Web site, which has a collection of letters complaining about Wisconsin license plates from over the past 20 years. Frankly, if some of those terms weren’t allowed, sodomy is probably off limits too.
Even if you can’t put SODOMITE on a license plate in Wisconsin, the sign in Richfield protests recent legislation and thus remains protected political speech. The only time government should step in is when someone starts shouting fire in crowded theater. So, does the right to free speech protect someone who shouts sodomite in a crowded theater? Yep.
The phrase, “Shouting fire in a crowded theater” originally appears in the 1919 U.S. Supreme Court case Schenck v. United States. What Justice Oliver Wendell Holmes actually wrote was this: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” This test was overturned in 1969 by Brandenburg v. Ohio which imposed even stricter constraints on when the government can restrict speech; specifically, the Brandenburg case limits the scope of banned speech to language that is intended and likely to “incite imminent lawless action” – like a riot. I don’t foresee rioting in Richfield.
So, vanity plates notwithstanding, it looks like sodomite is shoutable in a crowded theater and is, thus, protected under the Constitution.
There is one wrinkle worth considering, however.
Like most protests that depend on sexual (or racial) bigotry, the sign in Richfield trips over its own feet. Think about it: the sort of people who write things like “SODOMITES WILL BURN IN HELL” typically don’t want fourth-graders thinking about sodomy. But in the same way that trying to ban books simply encourages kids to read precisely those books, a big whopping sign with the word SODOMITE on it will encourage every kid who saw it from the school bus to immediately locate a dictionary and look it up – and then tell their friends.
Merriam-Websters online dictionary has: sodomite: “one who practices sodomy.” Kids are smart. They’ll look up sodomy next, which Merriam-Websters online defines as “anal or oral copulation with a member of the same or opposite sex; also copulation with an animal.” Next they’ll look up “copulation.”
I confess I’d forgotten that sodomy includes sex with animals, but I’ve probably lived a more sheltered life than the sign writer. We can, however, safely assume that copulating with animals will now be cemented into the psyche of every child at Richfield Elementary school who looked it up, and we have this sodomite-hating protester to thank for increasing their vocabularies.