Dissent in Ashcroft’s America
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Published in: January-February 2004 issue.

RECENTLY an Advocate.com commentary returned to an explosive issue of the last decade—the resurgence of unsafe sex among gay men. Theater producer and AIDS activist Jordan Roth urged: “We must Act Up again! We … need to scream bloody murder, point the finger of shame, and demand action. But this time we’re not going to scream at the White House or shame the Vatican. … This time we’re going to scream at ourselves, shame ourselves, demand action from ourselves.” Roth said he was “staggered” by a New York Health Department statistic: 55 percent of the men questioned said they didn’t use a condom the last time they had sex.

It was in the mid-1990’s that Michelangelo Signorile, Gabriel Rotello, Larry Kramer, and others first railed against barebacking. Sex Panic railed back that gay men must be free to do what they want sexually. It was probably the first time in GLBT history that both sides in a debate called the other “murderous.” Today, Jordan Roth’s call for act-up tactics raises some frightening questions, especially against the backdrop of the past decade, which has seen ominous changes in American views on dissent. In turn, these changes alter the way in which GLBT activists with differing views are interacting with each other.

Criminalizing Protest

In 1987, when act-up first hit the news, our activists were shouting at outside powers, not at other gay people. Using confrontational but nonviolent “direct action” of the kind that U.S. activists had relied on since the 1960’s, act-up marched, hung banners, threw fake blood and empty pill bottles, did phone zaps, occupied corporate offices, closed down Grand Central Station and the Golden Gate Bridge, even halted trading on the New York Stock Exchange. And the group won some impressive victories for people with AIDS. In those days, the U.S. justice system was till relatively lenient on civil disobedience—an arrest for peaceful protest meant a minor misdemeanor charge, a small fine, maybe a few days in jail. Activists were proud of their long arrest records.

Since then, federal and state government has quietly stiffened the laws affecting protest, progressively criminalizing the kind of legal dissent that convulsed America in the 1960’s and 70’s. This trend even preceded the wholesale crackdown on civil liberties after 9/11, when President Bush and the Justice Department rammed the USA Patriot Act through Congress without hearings. Growing use of felony charges on protesters started as long ago as 1990. Today your career as an activist can end on the first arrest, which can incur a long prison sentence. In many states even a misdemeanor conviction can get you a year behind bars and a huge fine. Even if you luck into probation, the judge’s restrictions on your behavior can be so severe as to muzzle any further dissent.

Even before 9/11, this trend had civil libertarians worried. On the criminal justice front, one major change was in the broadened use of federal law, rather than state or local law, against protesters. The 1970 Racketeer Influenced and Corrupt Organization Act (RICO) was originally intended to help agencies prosecute organized crime. In the 1980’s, when the Feds stretched RICO to target violent anti-abortionists, they were cheered by liberals and feminists. Today these same liberals and feminists are shocked to see racketeering charges routinely deployed against all kinds of peaceful American protesters. With wartime America consumed by security issues, even state governments are going overboard to slap limits on political dissent. As I write this, the Oregon legislature is weighing a bill to ban all peaceful protest for 25 years. On the civil front, there is growing use of the “slapp,” or Strategic Lawsuit Against Public Participation. This is a type of lawsuit that both institutions and individuals use to frighten critics or drive them into bankruptcy from legal costs. Some states bar slapp suits, but the victim must still go to court to have the case dismissed.

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