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The U.S. military's Don't Ask, Don't Tell policy constitutes a singular type of speech regulation: an explicit prohibition on identity speech by a defined population of individuals that mandates a state of complete social invisibility in both military and civilian life. The impact of such a regulation upon the public speech values protected by the First Amendment should not be difficult to apprehend. And yet, as the tenth anniversary of the policy approaches, First Amendment scholars have largely ignored this seemingly irresistible subject of study, and the federal courts have refused to engage with the policy's implications for public speech values in any serious way. The Supreme Court's landmark decision in Lawrence v. Texas now makes the time ripe to fill this analytical breach. In this Article, I explore three important conceptual issues that converge under Don't Ask, Don't Tell. First, I provide an overview of the true nature and scope of the speech regulations that the policy imposes upon gay and lesbian soldiers and map out the public speech values that those regulations offend, with a particular focus on political representation and accountability. Second, I explore an important issue in free speech theory - the relationship between a speaker's public identity and the meaning and political impact of the speaker's contributions to public discourse - that has gone largely unexamined in the continuing debate between collectivist and individualist First Amendment scholars. And third, I illustrate and analyze the deep relationship between the form of subordination that Don't Ask, Don't Tell imposes upon gay soldiers and the reiteration of that form of subordination in the impoverished analysis of the policy that the federal judiciary has offered thus far. With the greater insight that ten years of enforcement provides into the policy's true impact upon public speech values, Don't Ask, Don't Tell provides an important occasion to explore the broader change that Lawrence v. Texas promises to bring about in the review of claims by gay and lesbian litigants.


free speech, first amendment, identity, political representation, political accountability, military, gay, lesbian

Publication Title

Iowa Law Review

Publication Citation

89 Iowa L. Rev. 1633 (2004)