Nat Hentoff, a revered liberal who became famous as a writer for the Village Voice, is very disturbed over what Judge Allan van Gestel has done in imposing a gag order on the Fistgate tapes. Although Hentoff is primarily concerned with the First Amendment, it appears from reading the first few paragraphs that he is not thrilled by what occurred at Fistgate either. 

(It is interesting that Hentoff could not bring himself to mention this conservative newspaper even though he must have had Massachusetts News in his hands in order to write this article.)

The following article appeared in Editor and Publisher magazine last month.

By Nat Hentoff
October 2000

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 intmate 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 prior restraint. 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 who 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 Massachusetts.
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?