Born in Dissent: Free Speech and Gay Rights

15 Pages Posted: 27 Sep 2019 Last revised: 8 Jul 2021

See all articles by Dale Carpenter

Dale Carpenter

Southern Methodist University - Dedman School of Law

Date Written: 2019


It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his opinions in Schenck and Abrams. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites—all of these—would have been swept away in the absence of a strong and particularly libertarian First Amendment. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal.

This essay tells the story of the Chicago-based Society of Human Rights, the very first gay political organization in the United States, which was founded by Henry Gerber in 1924—five years after Schenck, but before the full meaning of the dissent was accepted First Amendment doctrine. The police quickly shut down the group and arrested its members. Justice Holmes himself never met Gerber. He would have found the idea of a gay rights organization incomprehensible, something more akin to the bizarre sex cult Chicago police thought they had discovered rather than the noble experiment Gerber thought he was launching. But if it’s true that the best test of truth is the power of the thought to get itself accepted in the competition of the market, the idea of freedom and equality for LGBT people has attained the status of Holmesian truth.

Keywords: First Amendment, Free Speech, Gay Rights, United States, Civil Rights, Schenck v. United States, Society for Human Rights, SHR

Suggested Citation

Carpenter, Dale, Born in Dissent: Free Speech and Gay Rights (2019). 72 SMU Law Review 375 (2019), SMU Dedman School of Law Legal Studies Research Paper No. 438, Available at SSRN:

Dale Carpenter (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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