Leigh Ann, Welcome to the Lake.

Nancy, Welcome back to the Lake and thank you for Hosting today’s Book Salon.

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Thanks for having me back Bev, happy to be here. Leigh Ann, I’m really looking forward to discussing your book with everyone here. It’s such a timely book, given the ongoing war on women. But obviously this book was long in the making. Can you tell us about how you came to this idea and why you decided to write this book?

Welcome to the Lake

I’m looking forward to this discussion, sexual privacy seems like a “god-given” right.

Hi Everyone, I’m happy to be here!

Hi Nancy, Long in the making is right! It took me 9 years to research and write. I began this book in an effort to figure out why we think about sexuality the way we do today—more particularly, why we think about so many aspects of sexuality in terms of rights.

Hi Elliott, I’m intrigued by your phrase “god-given” right, especially given that we’ve only treated sexual privacy as a right for the past fifty years!

I have to say you forced me to reexamine my assumptions, as Elliott puts it, that sexual privacy seems like a ‘god-given’ right.

Good afternoon Leigh Ann and welcome to Firedoglake this afternoon. Nancy, welcome back.

Leigh Ann, I have not had an opportunity to read your book so forgive me if you address this in there but why do you think so many of the people who seem to be adamantly against any government intervention in many areas of a person’s private life are right up front in supporting the intervention into people’s bedrooms?

So how did you get to the ACLU as the way into this?

Can you expand on that a bit Nancy? I mean, I’ve been immersed in this stuff for so long that I’m no longer sure what assumptions my research might be challenging.

I can’t imagine it was never not always our right to our privacy – hard for me to believe

Great question! I have often wondered this myself. Honestly, this is a theme that Nancy’s book addresses more directly than my work does–at least in contemporary politics. What I’ve found though is that many people in the past who challenged the ACLU’s efforts to establish rights to sexual privacy felt as if the sort of constitutional sexual privacy imagined by the ACLU actually violated sexual privacy as experienced by many people.

With Elliott here–that sex is a right that shouldn’t be infringed on, a right rooted in our individual liberty.

Anyway, after reading Defending Pornography, by Nadine Strossen–president of the American Civil Liberties Union (ACLU) from 1991-2008–I started to consider the possibility that the ACLU might have played a significant role in shaping how we think, talk, and regulate pornography. My research in ACLU records and private collections of ACLU leaders—and also my interviews with ACLU leaders—convinced me that, since the 1920s, the ACLU has played a major part in reshaping American approaches sexual expression more broadly.

If you look, though, at how people in the rather distant, premodern past lived–I’m thinking colonial American communities here, especially in New England–their sexual lives were open for all to see and evaluate and also punish.

Why are gender & reproductive “rights” all about females’s, with nothing about males’s?

On edit: meaning males’s rights are taken for granted, while females’s rights have to be fought for.

Most of the things we consider “rights,” though, were created–sometimes by people who rooted them in “natural rights,” but they were nonetheless created. So why not sexual rights?

There’s a lot in the book relevant for political activism, I think. Leigh Ann, do you think there are any lessons of this story of the ACLU leaders who made sex a civil liberty?

Super question! Someone asked this question at Nancy’s salon too and I’ve been pondering it ever since. In part I think it’s because of a longstanding assumption that men need sex. So, when birth control was illegal in this country, the birth control that was illegal was b.c. for women–diaphragms (pessaries), sponges, contraceptive foams, etc. Condoms were never illegal–supposedly because they were for the prevention of disease not the prevention of pregnancy.

their sexual lives were open for all to see and evaluate and also punish

Punish – is that the key word in the sentence? Why we had to have the ACLU.

I think one of the major lessons in this story of the ACLU’s activism on behalf of sexual rights involves the importance of building coalitions. ACLU attorneys worked with Planned Parenthood, the Kinsey Institute, the Mattachine Society, the motion picture industry, Playboy, and many other organizations. In so doing, they spread their message but also were influenced by the work of other groups.

Hi Bev,

Good point–it was certainly the punishments for publishing nudist magazines, speaking on birth control, etc. that got the ACLU involved.

Yes! And that’s what is still at stake. Leigh Ann, can you talk about how ACLU activists experienced/made the first sexual revolution.

(Disclosure: I’m a senior woman who came of age at that time after the pill & before AIDS)

Best answer I’ve been able to come up with is Dinnerstein’s Mermaid & Minotaur. Won’t go into it here, as it is somewhat OffT. but read the book & see if you think it makes sense.

Men assume they need sex and should have it. But for much of American history they didn’t assume that women should have the right to birth control. Right?

I guess that’s what civil liberties are, at root, about–protecting people from punishment by the state.

Sure! The book’s first chapter is all about the founders of the ACLU and how their private lives mirrored their public pronouncements about individual freedom. So many of the male founders insisted on sexual freedom within their romantic relationships and marriages–though their female partners (often ACLU-ers themselves) often or usually resisted. These folks were, in the 1910s and 1920s, at the vanguard of the first sexual revolution.

Moderator’s note–I’m giving Leigh Ann a moment to catch up with answers before posting more.

Right! Denying women the right to birth control was, I suppose, a great way of keeping tabs on women’s behavior and restricting it too.

Hi…years ago I read that book…will have to revisit it on your recommendation. Anything to add here from it?

Shouldn’t the right to privacy in matters of sexuality be subordinate to rights of ownership of one’s body? I mean that one’s body is one’s vessel of existence first and really ought to be thought of as one’s most basic piece of property. So what I do with my body is totally my choice up to the point that what I do with my body interferes with the rights of others.

It seems that the right to privacy is too weak, to malleable, and bound to be rescinded at some point.

I was struck by this from your concluding chapter:

Phrases such as “informed consent,” “reproductive freedom,” “the right to privacy,” and “the right to read” roll easily off the tongues of many if not most American adults today, conservatives as well as liberals.

It’s not simply that the ACLU build coalitions with liberals and progressives. They framed the various issues before the country in ways that pushed people to think and rethink their assumptions about what is/was at stake in a given case.

Oh I do love this post! I agree with you and think that has been a stumbling block for this civil liberties approach to sexuality. You will find a thread about this running through my book–what Nancy refers to, I think, as “the dark side” of sexual civil liberties.

Hello, glad I joined the conversation.

Glad to see you here, Ms. Brownmiller. Welcome to the Lake!

Leigh Ann, I know you’re being a good historian in the book, not revealing your own views so much, not speculating on what might have been. But go there with us!!! What’s the downside, in your view—because I’m pretty sure you think there was a downside to all this.

True–and framed the “right” in question broadly enough that people on all ends of the political spectrum can find a way in. When the ACLU reinterpreted the First Amendment as one that should protect people’s right to “read, see, and hear,” they broadened the amendment so that it would apply not just to producers of speech–authors, orators, movie producers, etc.–but to EVERYONE who might want to read or see anything at all. That broadening of the First Amendment made it personal for people who before considered it pretty irrelevant.

Isn’t the woman question in sexual rights more related to ownership again? Men essentially owned women throughout history and owned women’s children too. When we talk about sexual rights generally, we are shifting power from men to women in terms of control of reproduction.

I do see downsides for sure. As you point out, I think that in many ways sexual civil liberties has “privileged sexual expression over freedom from unwanted sex.” In the course of my research, I got to know people who were not—to use terms that Nancy popularizes in Delirium—“delirious” or “sexual counterrevolutionaries,” but who pushed back against collapsing boundaries between public and private. They saw, for example, that full rights to sexual expression would bring sexuality into the public sphere in ways that couldn’t be escaped. Many people experienced public sexual displays as violations of their privacy.

We have great company today!

The right to privacy is not granted in the Constitution. I recall that Kennedy and Alderman did a good rundown of this some years ago, and sexual matters were a big part of the move towards “privacy” as a right.

Has the current court tried to re-trench any of this?

Well, that would be nice. Unfortunately though, to the extend that civil liberties is historically about protecting people from the state, they don’t tackle the rape problem very effectively. That leaves women without some crucial protections.

Leigh Ann, what’s a better framework for handling ‘the rape problem’?

The ACLU was slow to recognize the validity of women’s movement issues, don’t you think? Certainly they had and have trouble with our anti-pornography stance by privileging their concept of free speech and “robust conversation in the workplace” over our concerns about the real damage from hate speech.

You’re absolutely right about “privacy”–as a term–though the right to privacy as articulated in Griswold cobbles together a variety of items from the Bill of Rights. I would say that the Court’s whittling away at rights to abortion is reducing the right to privacy that was reaffirmed and strengthened in Roe. One of my discoveries in the book though is about how the ACLU sort of laid the groundwork for this by supporting restrictions on sterilization–in an effort to counter coerced sterilization. Since then, those same restrictions have been applied to abortion in a way that undercuts Roe–restrictions framed as informed consent, waiting period, etc.

And the constitutional issues involved in the privacy right are very contested. The religious right (folks I call sexual fundamentalists in my book)is absolutely determined to overturn Griswold–which would allow for reinstituting laws against birth control.

Susan, I’m so glad you’re here! Thank you! And, as you probably know, I agree with you on this. I think that the ACLU’s consumer-rights approach to the First Amendment is one way that sexual harassment law has been eroded. If people have the right to read, post, and look at whatever they want at work, that makes the workplace less public, less regulated, less governed by legislation and policies that have, arguably, made workplaces more welcoming to people of color, women, gays, etc.

The double-edged sword. Life is messy.

and I can’t tell you how thrilled I am that most members of SCOTUS are Roman Catholic, not exactly a religion with a healthy view of sex, I mean their pastors are all supposed live without it

Consent is a critical issue in sexuality. Without consent, there is no right to sexual expression. The right to say no to sex is totally equal to the right to say yes and that choice must be made freely.

IMO, sexual rights and liberties are a really different issue than consent, though.

Good question Nancy. I’m not sure I can articulate a better framework so much as I can find weaknesses in the current one. Ha! Isn’t that always easier?

True.

Chuckling over this post Elliott! And why is it that Catholics are so overrepresented in the SCOTUS?

Wow, this is a chat with some important names. Thanks for coming to the Lake.

But consent is also inseparable from sexual rights, isn’t it? And really, consent is the crux of many contests over these issues. With regard to sexual activity with other people, how does one determine consent? That’s a critical question and one that, for decades, even centuries, has been determined for women according to their past behavior–as if having sex in the past might necessarily mean consenting to sex in the present.

Because God promoted retirements during certain Presidencies?

Good afternoon Leigh Ann! I have not had a chance to read your book yet, but I wonder if you can give some comment as to when gay civil rights become part of the ACLU’s agenda. And was there any resistance from civil rights leadership in communities of color on this issue?

more chuckles!

It seems to me that the expansion of constitutional protections and rights takes place best is when those whose protections/rights are being denied or restricted are seen not as the “evil other” but as the neighbor and family member. From the book, the Clarence Thomas-Anita Hill confrontation’s effect on the discussion of sexual harassment comes to mind as a great example of this.

Another example I expected to see but did not is the role the AIDS epidemic played in humanizing the previously demonized LGBT community in the eyes of the broader public. When stories of same-sex partners being denied hospital visitation rights to their dying partner, it changed the way people looks at gay men. When lesbians took a larger public role in the fight for LGBT rights (roles previously held by the gay men who were then dying of AIDS), it changed the image of LGBTs yet again.

For the broader public, AIDS changed the discussion profoundly. From hospital visitation to the current question before the Supreme Court of marriage equality, AIDS forced the broader society to first admit the humanity of LGBTs and second to question the appropriateness of restricting the rights of LGBTs.

Your thoughts, Leigh Ann?

I wish I knew

Would Nancy like to expand on “the rape problem”? Yes, the ACLU had a “rape problem” stemming from their concern for defendants and not seeing, at first, the larger plight worldwide of rape victims.

Hi Lisa!

The ACLU began to consider gay rights issues as early as the 1940s and 1950s when individual men and women wrote to the ACLU asking for help because they’d been dishonorably discharged from the military or a local postmaster had “covered” their mail–put a watch on it and detained them to ask about homosexual publications. The ACLU did not, however, really begin to tackle these issues until the late 1960s and early 1970s. Griswold in 1965 really turned a corner for them–ACLU leaders were quick to apply the privacy rights articulated there by SCOTUS to homosexuals–were, in fact, preparing for it. Re: civil rights leaders’ responses—I’ve run into nothing at all. There was tension between the ACLU and the NAACP over a number of issues–like racist movies and TV shows, for example–but I’ve not seen anything re: NAACP response to ACLU defense of homosexuals and homosexual rights.

I’m wondering if access to the internet also has a big role in terms of how quickly images/words and such can be spread around? In the past it took so much more effort to put things out into the world.

Peter, nice to ‘see’ you again. Let me give the historians’ defense–there’s only so much you can take in, especially a book based on so much archival research as Leigh Ann’s is. This interaction and tension between the ‘movement’ side and the legal side of progressive politics is a perennial in american history.

When I think of sexual rights and liberties, in my mind I include as rights only the set of sexual behaviors that are consensual. If I is not consensual, it is not a right. However…obviously consent (and *intent*) can get murky with with pornography.

Susan, quoting Leigh Ann on the ‘rape problem.’ Give me a moment to catch up on our threads….

Hi Peter–I agree completely. In fact, the ACLU was very resistant to the notion of gay rights until it became acquainted with individual gays and lesbians who educated ACLU leaders on their issues. Re: AIDS–my book addresses turning points in the ACLU’s sexual civil liberties agenda and given that the ACLU had signed on to gay rights long before the AIDS epidemic, I don’t end up discussing AIDS in the book.

M&M: Humans are the animals born more preverbal, preintellectual than other mammals; emotional systems are fully wired at birth. Therefore, we are totally physically dependent on our mothers for a long time after parturition. Experience bliss when we are fed when we are hungry, existential treat when we are not. Makes humans totally dependent on females emotionally long before we have a chance to examine the attachment rationally. Thus women bc a huge threat to human existence in an emotional sense, and must be controlled.

It’s been a long time since I’ve done the short version, so there may be some gaps in my summary.

Many people would agree with you but my guess is that most “progressives” probably would not. RE: consent and pornography are you referring to performers or to people who are exposed to it without their consent.

I mean, who knew the extent of gang rape and other atrocities committed against women in India until the recent spate of news coverage? Liberals and leftists were initially appalled by the feminist movement against rape.

What about cultural explanations? And why isn’t men’s use of condoms a threat to human existence?

wow, what a great conversation. i’m just gonna continue to lurk (and learn) but wanted to say thank you to leigh ann and nancy for being here today.

wow. i’m gonna have to get this book.

Without privacy, what good are any of the other rights?

As we are finding out.

Also, Peterr, I think the AIDS epidemic really took a LONG time to get under the skins of most Americans. The Band Played On came out when? About 1986 maybe, and the epidemic had been raging for almost 10 years already. I don’t think very many people really had a lot of contact with gay men, but those of us who did were really immersed in the deaths. I think it took more years before people were desensitized to the sensationalism and fear.

Completely agree on the “historians defense” and it’s not just historians. When I was preparing to defend my dissertation (I’m a pastor with a PhD in worship), a wise faculty friend told me that the answer I needed to have handy for a number of questions is some variation of “that is interesting, but outside the scope of the dissertation. You have to draw a line somewhere.”

Men have more sperm than women have eggs. Men don’t have the apparatus to feed infants after they are born.

This is interesting! Were condoms exempted from the 1873 Comstock Act, as well as the various “little Comstocks” that many American states passed in the following decades? From what I’ve read, it seems that acceptance of the condom within the legal arena ramped up during the 1930s, and was the result of birth control advocates taking a “public health” view of this particular contraceptive. Did you find any of the people or organizations you studied trying to defend their views on sexuality through a medical or disease-oriented framework? Any connections between sex as “civil liberty” and sex as private or public health imperative?

True. And in many ways the ACLU, while embracing bits of the feminist rape reform agenda, turned much of it back by insisting that a woman’s sexual history tells us something about what she might have consented to later.

Let me pose a question about your conception of “unwanted sex” and “exposed without consent” when it comes to speech acts. On my daily commute, with my young daughters in the car, I pass two billboards. One is for a strip club, with you can imagine the sign. The other is of an interracial male couple with a message to get an HIV test. Should either of these signs be banned? Who decides?

Thank you Suzanne–and do contribute when you are so moved. This is great fun.

So?

:)

That’s exactly the murkiness i mean. I dont consent to seeing sexually explicit photographs on the back of the Muni bus, but it’s still legal. Some cases really have to be governed by community standards, which are capricious and often unfair to some.

I think that was a major issue in re: the “rights” of people to go to the bathhouses, and the emerging worry that disease was killing people as a result of bathhouse behavior vis a vis the struggle for sexual self-expression and the fight to keep bathhouses as a fragile hold on personal expression that was considered essential. This I recall from Shilts.

Good point about the Internet…and bringing unasked-for and unwanted pornography right to our home screens without so much as a “by your leave”.

Yes! Condoms were permitted under many Comstock laws because they were for the prevention of disease rather than pregnancy. Pessaries–diaphragms–slipped under the radar as supporters for prolapsed uteruses and also, eventually, to protect the health of women whose bodies simply could not sustain another pregnancy and childbirth. So health and disease was central.

So that’s why females are an existential threat to the human race and men aren’t wh is what you asked.

I agree! And you’ll find lots of stories in my book about many people who fought this fight for you. One thing they accomplished is still on the books–restrictions on unsolicited sexually explicit mail. People argued in congress that without such restrictions, sexually explicit advertising was showing up in their foyers (remember the mail slots in the front doors?) and so were violating their privacy in very tangible ways.

Absolutely — but once it did, things certainly have moved quickly, at least in terms of SCOTUS:

1986: Bowers v Hardwick, which upheld Georgia’s sodomy law

1992: Romer v Evans, which overturned a Colorado constitutional provision that prohibited a city, county or other subdivision of the state from enacting its own protections of LGBTs.

2003: Lawrence v Texas, which overturned Bowers.

Six years from Bowers to Romer is a very short time, as is the 9 years from Romer to Lawrence. Now in 2013, SCOTUS is preparing to hear Hollingsworth v Perry and US v Windsor.

In SCOTUS terms, this is quick indeed.

Men own their progeny, too, so they get to choose when and with whom they procreate. Women, not so much.

My conception?

I think you hit the reply button by mistake, as this seems directed at Leigh Ann, not me.

That is the question–asked by Peterr–and one that the ACLU engaged at length. I’m not really into drawing lines and drafting bills and such. But I am into pushing back a bit against free-speech-absolutism. Also, I’ve found that any criticism of sexually explicit imagery is often treated as a call for censorship. What I want is for people to forget the censorship threat for a minute and think about what we are allowing to surround us. One of the internal ACLU debates I remember vividly (from the documents–this was 1970s when I was just out of diapers) involved a strong first amendment attorney, Harriet Pilpel, who was struggling with the question you ask. She asked: what if a bookstore wants to put life-sized pictures of people having sex in the front window–along the path that my child takes to school? Some people on the board said it should be permitted. The child can look away and the parents are responsible for the child. Period. What would you say?

It is also about the way that accusations/photos and other information can be put up and remain in caches, how easy it is to put all kinds of crazy stuff out there that can harm others or create a variety of climates of hate, self-abuse and other things like that.

Men have to own their progeny for their own survival. After all, until DNA, there was no tell who the father was.

Yes, Peter it was directed at Leigh Ann. Damn this new technology! Anyway, Leigh Ann you can go back to it or…

We’re at our halfway mark and I wanted to give you a chance to open some other topics in the book for discussion. Anything particular? Abortion “rights”?

This is a cute “reproductive evolution” comment. But surely we have the capacity to resolve the problem of feeding the babies– but we have not surpassed the male evolutionary adaptations of larger size and strength, and, alas, the strictly cultural interpretation that men who rape are simply doing what comes naturally.

Oh, I should say it’s not really my fight…I’m one of those sex positive feminists. Porn doesn’t bother me at all, but I totally understand why so many feminists object to the constant bombardment of salacious images to which they do not consent. I don’t know where the balance ought to be, but I know we need to talk about it.

I believe my city has a ban on putting stuffed animals with nipple piercings in a store window/advertising their piercing.

Our emotional responses are stuck in evolutionary times, while our intellectual development is presumably more advanced. The point of M&M is that if you spend 2 years of your postparturition life stuck in an emotional morass, you are set up for life unless you go back & examine those years once you develop (if you ever do) the skills to do so.

I’m not Dorothy Dinnerstein. Just said it’s the best I’ve been able to come up with and repeating what I remember of her points when asked.

I don’t think it’s absolutism to worry about the dangers if we start banning some speech and displays in public. That was the billboard question. I think in a lot of parts of the country, the PSA for HIV testing would be banned also. That particular one is tricky one. But I do think the LA case where firefighters were allowed to read Playboy in the station but not post centerfolds struck the right balance. If an employer can say what I can read on the job, then they can prohibit reading the Nation, or Firedoglake, etc. Given how authoritarian America’s rightwing is, I fall on the side of protecting civil liberties and individual rights as much as possible.

Seems like bad marketing idea to me.

I consider myself a sex-positive feminist too–which is part and parcel, actually, of my problems with porn. And I am with you! We need to talk about it. Too often these conversations get shut down with charges of censorship or misogyny that prevent people from actually talking. I have to make a pitch here for my effort to open up such a conversation in the journal I co-edit–the Journal of Women’s History. We hosted an e-mail discussion that we edited for the Journal in which people on different sides of pornography issues discussed a burlesque/strip show hosted at the last women’s history conference–the shoe: The Down’n Dirty. The conversation became heated and very tough at times but was incredibly productive. We also opened an online conversation about it though did not get much traffic. You can find the conversation on our website if you’re interested:
http://www.journalofwomenshistory.org/

Especially now that I’ve reproduced–I’ve got to go back and read this book again!

No, because of community standards, but that’s a slippery slope that can lead us right back to the Comstock Act.

I agree that we should keep the slippery slope in mind. But we should also pay close attention to context. The Los Angeles fire department, for example, was heavily male dominated and had a history of harassment and efforts to keep female fire fighters out. When free speech trumps equal employment opportunities, people who have been excluded historically lose and those who have had the power retain it.

That said, it’s a question that is not an academic one for me.

I used to serve a congregation that was regularly picketed by Fred Phelps, including at funerals. The members of the church were quite used to Fred and the hate-filled signs he and his friends used, but it was always interesting to see how visitors (at funerals, for instance) reacted. One woman related how her young child who was just learning to read saw one of the signs and asked “mommy, what’s a ‘fag’ and why does God hate them?” Her reply boiled down to “that’s a bad word for someone who those people don’t like, and their God is not at all the same God we worship. Our God doesn’t hate anyone.” Such wisdom from a woman who was laying to rest her father.

That may not have been the place she would have chosen to have a conversation like that, but it’s the place where the conversation needed to take place.

All in all, I’m more inclined to prefer speech over restricting speech — even speech like Fred’s or the billboards you reference. Driving along Interstate 70 in central Missouri (I’m in Kansas City), there are a couple of adult entertainment establishments in unincorporated areas that advertise themselves with billboards along the highway. Someone opposed to these businesses bought advertising space on the next billboard down the road to express their opinion of pornography. It makes for an interesting political conversation — akin to the old Burma Shave signs that spelled out a story/poem not on one sign but succeeding signs. In this case, it spells out a debate, not a coordinated message.

I have trouble with the notion of being in public and feeling like my right to privacy is being infringed. If I’m in public, I’m in public.

I am sorry I have to leave this discussion. Before I go– best wishes for the success of your book, Leigh Ann. And Nancy, as a newbie I found the technology here cumbersome but I can’t offer a solution. For all cumbersome societal problems in which rights conflict– keep on keepin’ on.

I’m sure we will have plenty of opportunities to take a trip in the way-back machine.

I think the upcoming SCOTUS rulings will be. . .well, I hope they will move us forward.

Heh. Sounded clever to me, but I’m a native os SF.

Ah–community standards! And what is the community now in the age of globalization and the worldwide web?

Thanks so much Susan!! We all appreciated your smart contributions and dependably clever writing!

Thanks! I’ll check it out.

If I’m in public, I’m in public.

CCTV? Facial recognition? Microphones on buses? Cell phone signals going over public airspace & being captured by NSA?

A couple of thoughts–first, do we really want those who have and make the money to be able to make our public world look however they want? And whatever happened to boundaries between private and public? I think that’s a key issue here–that some people want those boundaries maintained: If I’m in public, I should not be confronted with other people’s private behavior or desires.

Thanks for joining Susan. Leigh Ann, back to your last…. So why shouldn’t antiunion employers or employees be allowed to prohibit others in the workplace from reading pro-union literature or advocating for union rights? Civil libertarians and the ACLU might not always strike the right balance, but I fear the consequences if we go back to regulating what people can read or say based on some other group’s notion of pornography.

I happened to peruse a web site yesterday that is very protective of people who have, maybe PTSD, related to sexual or other assaults. They have warnings on the comments to try to warn/protect readers who may encounter descriptions that might be upsetting/traumatic. It is an interesting concept.

Nancy, prohibiting pro-union literature in the workplace is a violation of federal law, designed to protect economic equity. Sexual harassment law has a similar goal. Again, it’s about context.

Community standards on the web: So true, and we’re not in Kansas anymore.

Wow, thanks for coming to this tiny corner of the blog universe! I’m a bit starstruck.

Another thing that is difficult is that with cell phone cameras everywhere and the penchant for taking photos in cafes and such, then people using FB to put photos up. You are at risk of being in (the background of) a photo anytime and anywhere and having your photo released on the internet. It was one thing to be underground in the 1970s, but it is very problematic to not be seen now.

And interesting too because it is designed to prevent people from being exposed to material they want (need?) to avoid. These sorts of warnings sort of recreate public/private boundaries that have been eroded by technology and, dare I say?, sexual civil liberties.

I might be impersonating a lawyer here, but I believe the rationale is free speech and right to associate freely, not economic equity. I’m a little rusty on my labor law.

And this is something I’ve hardly even considered! Though one of the cases the ACLU took on involved a supposed “nudist” who swapped nude pictures of his wife and daughter with another “collector–and this was in the 1950s! The ACLU dropped the case when they realized that it involved photos of a minor.

I think Internet standards obviously have to be permissive to the lowest common denominator and then raised individually by household. There is a lot of opportunity to avoid sexual content online.

Free speech was invoked for sure, but the labor movement pushed for this legislation to defend it and workers against repressive employers who held all of the cards. Plus, the legislation was not the Freedom-of-Speech-in-the-Workplace Act; it was the National Labor Relations Act.

I was surprised at some pushback on it another place, and I realized that the kinds of traumas we experience are different for everyone. Not everyone can appreciate the need for this type of protection/consideration.

As the mother of a 9-year-old, I find this task daunting. I mean, the technology is always far beyond my understanding and also always outstripping my skill set.

Let’s turn to the upcoming SCOTUS marriage cases, which ultimately go back to the right to privacy. Leigh Ann, I’m wondering if you reached any conclusions about the wisdom of legal approaches to complex and contested political issues. Any thoughts on what ACLU history might teach us? Anything we should be worried about?

And maybe that’s what “public” should mean–a space where civility and respect for differences among us reigns?

Which brings us back to “who decides”?

Fred Phelps’ signs are abusive. They are hateful. They are fueled by rage and have no purpose other than to provoke a reaction.

The Topeka media has figured out that what Fred wants is attention, and they’ve begun ignoring him. It really, really irritates him, and there’s nothing he can do about it but try to be more outrageous — in his case, by taking it to a national level.

The picture you paint of the boundary between public and private is more about control than about privacy, I think. When I’m in public, I’m being confronted with other people’s *public* behavior. They are as much in public as I am. In saying that someone’s right to say something is trumped by my right not to hear them say it, that’s problematic. If I don’t want to be confronted by my neighbor’s public speech, the only choice I have is to stay home.

What people are really objecting to is the notion that someone else’s image of what is appropriate in public does not match their own. “Don’t wear fur!” shout the PETA protestors outside the opera. “Go put some clothes on” replies the offended opera-goer.

Personally, I’d rather they have that conversation, instead of someone decreeing who is and who isn’t allowed to have their say.

I have to say that I am worried about our continued access to privacy in our health care choices and to birth control. It is hard to believe that we are still fighting this battle.

I heard the Hobby Lobby (I think) president yesterday still crying over having to provide access to b/c in their insurance. Incredible to me that anyone thinks they can deny women b/c, much less abortion. I saw a cartoon where a business owner wanted to deny all insurance coverage because he was a Christian Scientist and only wanted his employees to access prayer. That is the level these people have gone.

It seems to me that privacy may not be the issue here with regard to same-sex marriage to the extent that marriage is a public or civil contract. Personally? I absolutely and totally support same-sex marriage. But I suspect that equal protection grounds will be more useful for these cases.

I’ve seen it before as well, and think of it as basic hospitality. Ditto for sites and posts about movies, which carry spoiler alerts so that those who don’t want to have the end of a movie they have yet to see ruined by the discussion.

I see what you are saying. And I don’t completely disagree. But when you say public and private are about control, it seems to me that demolishing public and private is also about control. Why is it that women’s bodies are the ones most exposed and sexualized in the public realm? And why is it, at the same tie, that indecent exposure laws apply to more female than male body parts? I mean, is this the same thing–male control? Maybe. But I’m quite taken with a book by Rochelle Gurstein, The Repeal of Reticence, which talks about what happens to the private realm when these boundaries collapse. I find that more scary than public regulation of public spaces.

I know, from reading your book you support same-sex marriage. Still, privacy rights were what brought us to a place where you can make the other equal protection claims. I guess I was asking, having written a book about people who pushed change through law–often ahead of public opinion–do you share some people’s concerns that (esp Prop 8 case) is moving too quickly to SCOTUS?

Prayer and…..viagara? :)

Yes, well, Some Things are Very. Important.

Good question–especially given that many people think Roe remains under attack because it got ahead of public opinion. But as you point out in Delirium, public opinion polls indicate that the majority of Americans support–or don’t oppose–same-sex marriage, right? And honestly, I’m not at all worried about this SCOTUS being too progressive!

For sure. For many there would never come a time for Roe. And on the same sex front, reminds me of waiting for a time to challenge slavery…no wait would be long enough.

Regarding using the law to achieve social change…..I don’t agree with people–like President Eisenhower–who say that you can’t change hearts and minds with law. He was saying this about civil rights legislation, but I think that civil rights laws–and also sexual harassment laws–have changed a lot of people’s minds. And the laws that have established sexual privacy have led many or most people to assume that sexual privacy is a natural right!

Equal protection is certainly a major — perhaps THE major — part of the legal argument, but privacy was definitely part of Perry at the district court level. The proponents of Prop 8 raised the issue of procreation as one reason why the state has a reason to restrict marriage to opposite sex couples. Judge Walker was not convinced of their logic:

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. “[I]t would demean a married couple were itto be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381US at 485-486.

Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. FF 23-25. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. 388US at 12. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. Id.

Thanks for this Peter–interesting. But gosh, what a stupid anti-Prop-8 argument. Like, what, so we don’t allow infertile people to marry?

I’ve been lurking but just want to say I’ve found this discussion fascinating and delightfully refreshing. Usually when I have OMG moments in book salons, it’s because a male with a PhD in econ showed up. Rock on feminists!!!

Hahaha! Yes, a majority does support same-sex marriage. I’m ambivalent about this one–on principle, SCOTUS should overturn all gay marriage bans. But as a matter of practical politics, I don’t know that this is the best way, or rather the best time. Especially since there’ve now been several popular victories at the ballot box.

Yay! Thank you!

Thanks for joining in!

Is it how we frame the problem? We can distinguish between being protected by the state and using our right to employ other means that do not give undue power over individual liberties. e.g. nonviolent protest, economic boycott. IMO that is safer — and empowering.

Well, in the case of Roe, it seems like public opinion has been given a good work over. The r/w press has been very effective in pushing back.

I was reading TIME about passing the baton of b/c and abortion rights to another generation. The article was positing that my generation or a little older has tried to manage it and has lost the edge in failing to give it over sooner to new women, a new way of thinking.

How do you view that idea?

Oh–I see–you’re suggesting that allowing “democracy” to run its course and establish the rights of same-sex couples to marry might be more effective in the long run. The thing is–rights aren’t, by definition, subject to majority rule, right? And so to make something a true right, don’t we have to have SCOTUS affirmation?

Interesting points….you might find it interesting to learn that the ACLU has historically declared successful economic boycotts against movies, books, etc. violations of the spirit (if not the letter) of the First Amendment, because they inhibit consumer access.

As we come to the end of this great Book Salon discussion,

Leigh Ann, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and sex as a civil liberty.

Nancy, Thank you very much for Hosting this great Book Salon.

Everyone, if you would like more information:

Leigh Ann’s website (Binghamton University) and book (How Sex Became A Civil Liberty) (Journal of Women’s History)

Nancy’s website and book (NancyLCohen.com)

Thanks all, Have a great week.

If you would like to contact the FDL Book Salon: FiredoglakeBookSalon@gmail.com

FDL Book Salon has a Facebook page too

Why did the Equal Rights Amendment fail?

Yes, ultimately. As I said I’m ambivalent–based on my involvement in politics and study of history–about making change primarily and first through law.

Hmmm…I’m not sure I completely understand what you’re asking. But I will say that I think we’ve allowed others to control birth control for too long. I mean, the law is one thing–and we should fight for insurance coverage, access, etc.–but how about the medical profession which maintains a lock on the only effective forms of contraceptives for women?

I explain that in chapter 2 and 3 of my book, Delirium. In a word, right-wing women got politically active in order to stop equal rights for women, and then took over the GOP.

Thanks to all for a very interesting and enlightening discussion.

Leigh Ann, any last wrap up?

Thank you so much Bev and Nancy and all of you! That was a speedy 2 hours! I enjoyed the conversation a great deal and am coming away from it with lots to think about.

The exposure and sexualization of bodies is not limited to women’s bodies, but the way it is done varies between male and female bodies.

I love commercials as a window on society, and my favorites are those that poke fun in one way or another. The new Old Spice commercials are an often hilarious sendup of sexualized advertising, using a buff semi-clad male as the centerpiece. Right now, I’ve got the football playoffs on in the background, and there is more that a little exposure and sexualization of the male body going on there as well.

My favorite sport is soccer, and I remember the outrage when Brandi Chastain did what male soccer players have done for eons after scoring the winning goal in a major match — she took off her jersey and waved it around in celebration. When David Beckham does this, it’s exuberance; when Chastain did it, it was seen as the decline of All That Is Good And Right in the World.

Please. She exposed more than her sports bra. She showed the world a tremendous double standard.

Thanks for coming, and thanks for your years of work in putting the book together!

I think I need to read your book too. For the life of me, I can’t figure out why women would undermine their own rights. Makes no sense.

Love!

Thank you Peter–I’ve enjoyed your posts a great deal!

Yes, along with all the male priests and historical prepondance of male judges…..a new day will come, I assume.

Interesting, as someone past the need for it, I am a bit out of touch. I think one reason we (and I include myself though I am not a part of the organizations) is that we did live during the time when b/c and abortion were made available. I remember when they were not.

But the issues today are plenty complex, and not least because the sexual revolution took away the stigma of being an unwed mother, to some degree. That was a game changer WRT abortion, for sure.

Thanks Leigh Ann and thanks all who participated in the Lake community. Enjoyed being here again.

Thank you Nancy! Goodnight everyone!

Thanks to everyone, great book salon!

Getting a bit off topic, but there is more to the Brandi Chastain story.

The sports bra was lent to the bankrupted Sports Museum of America and had to be ransomed back out of impound.

Brandi Chastain gets her famous sports bra back

Life is stranger than fiction.

Yeah, a right needs to be found in the constitution to be guaranteed, IIRC. Those laws are the strongest. That way a minority can be protected from the tyranny of the majority through legislated restrictions to one’s rights that comes along later. So any right to marry has to be found in the constitution, I believe.

Thanks to our guest, our host and all participants. This was fun!

Thank you for coming, good luck with your book

And thanks everyone for the great discussion