By: Nat Hentoff
Nat Hentoff Examines Teen Sex Talk Case
MEDIA IGNORES FAR-RANGING BOSTON GAG ORDER
Nat Hentoff Examines Teen Sex Talk Case
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by Nat Hentoff
On March 30, the Boston chapter of the national Gay, Lesbian, and
Straight Education Network (GLSEN) held a conference at Tufts
University. Present, from around the state, were teen-agers and
some children as young as 12, as well as teachers who received
state ‘professional development credits’ for being there.
One of the sessions was titled, ‘What They Don’t Tell You About
Queer Sex & Sexuality in Health Class: A Workshop for Youth Only,
Ages 14-21.’ Instructing the students were two employees of the
state Department of Education and a consultant from the Department
of Public Health.
Scott Whiteman of the conservative Parents Rights Coalition attended
that class and secretly taped it. I have a copy of the transcript.
When a youngster asked, ‘What’s fisting?’ in gay sex, a woman from
the Education Department explained how to do it. There might be some
pain, she said, but it’s an ‘experience of letting somebody into
your body that you want to be that close and intimate with.’
Among other lessons, there was a ‘hand diagram’ to show how lesbians
have sex. Another workshop was: ‘Early Child Educators: How to Decide
Whether to Come Out at Work or Not.’
Part of the tape was played on Boston talk-radio station WTKK-FM by
the host, Jeanine Graf, whom I’ve known for years as a vigorous
advocate for free speech.
The Parents Rights Coalition made the tape available to others, and
GLSEN sued to have it and any transcripts suppressed. On May 17,
Suffolk County Superior Court Judge Allan van Gestel, who moonlights
as a lecturer at Harvard Law School, issued one of the most
far-ranging prior-restraint orders in American judicial history.
It included not only the Parents Rights Coalition but anyone, including
lawyers, who tried ‘to disclose or use such tape in any forum’ or its
contents. That included the press, electronic and print.
Moreover, Jarret Barrios, a Massachusetts state representative, sent a
message to all House aides and representatives in the Legislature. He
warned that because there was a question of whether the students’
privacy rights had been violated, the Legislature was also under the
gag order. And it agreed.
The only daily newspaper to run an outraged editorial was the Boston
Herald, which called the judge’s order an ‘affront to free speech.’
The Boston Globe criticized the secret taping, but not the gargantuan
The rest of the media was silent, except for WTKK’s Graf. She kept
playing the tape. And, on her program, Harvard law professor Alan
Dershowitz and Harvey Silverglate – a civil-rights and civil-liberties
lawyer as well as a national columnist – attacked the prior restraint
as a violation of a series of U.S. Supreme Court decisions.
I went on Graf’s show to violate the gag order. I discussed what was
on the tape and underlined the judge’s contempt for settled First
Amendment law. Also criticizing the prior restraint was Jay Severin,
a WTKK commentator.
The Massachusetts affiliate of the American Civil Liberties Union was
silent. I called Executive Director John Roberts. He told me, without
urgency, he had referred the matter to his executive committee. The
only lawyers who went to court over it were Elizabeth Ritvo of Fox
News; and Chester Darling – one of the nation’s leading Bill of Rights
defenders – representing the Parents Rights Coalition.
In her brief to van Gestel, Ritvo quoted the U.S. Supreme Court in
Nebraska Press Association v. Stuart (1976), ‘Prior restraint is the
most serious and the least tolerable infringement on First Amendment
rights.’ And Darling, referring to the claim that privacy rights had
been violated, pointed out, ‘There is no expectation of privacy at a
conference to which the public has been invited in a public forum.’
He also cited a Massachusetts statute making it a crime to disseminate
harmful matter to minors.
On May 25, van Gestel modified his gag rule, saying, ‘Nothing in this
preliminary injunction shall be deemed to apply in any way to the print
or electronic news media.’ But the rest of the prior restraint continued.
I had been ready to be held in contempt and go to court in the tradition
of John Peter Zenger. But, alas, it was not to be.
The Legislature appears to be still intimidated. I called House Speaker
Tom Finneran, whom I know, and he did not return my call. This is the
man who courageously stopped the enactment of capital punishment in
Subsequently, there has been some coverage of this assault on the
First Amendment and the acquiescence of most of the Boston media. Rod
Dreher, a New York Post columnist, wrote an indignant ‘Banned in Boston’
article in the July 3-10 issue of The Weekly Standard, and Dan Kennedy,
the Boston Phoenix’s invaluable press critic, included van Gestel in
his annual ‘Muzzle Awards’ in its June 30-July 6 issue.
Aside from Dreher’s piece, I’ve seen no mention in the national press
of this gag order that should go into the ‘Guinness Book of World
Records.’ If a similar suppression of speech had been handed down by a
judge against a secret taping of a David Duke-sponsored conference by
the National Association for the Advancement of Colored People, would
there have been such media silence?
Nat Hentoff is a writer for The Village Voice. His ‘Getting It Right’
column appears monthly in E&P.
(c) Copyright 2000, Editor & Publisher