The Brief: Law School News and Events

Wolff Says DADT Violated First Amendment
Penn Law Professor Tobias Wolff frames the overturned Don't Ask, Don't Tell policy as a free speech issue. Wolff recounts how President Obama addressed DADT in his first meeting with military leaders. He served as chief advisor and spokesman on LGBT issues for the Obama campaign.

With the repeal of the "Don't Ask, Don't Tell" (DADT) policy last December, gay and bisexual U.S. service members will be able to serve openly for the first time in history. And it marks the end of a policy that violates soldiers' First Amendment rights, said Tobias Barrington Wolff.

"The idea that you can take a naked speech restriction and define it through mental gymnastics as this attenuated conduct restriction and courts buy that courts that were otherwise very sensitive to First Amendment arguments was evidence of the corrosive effects upon larger constitutional values that this policy had," Wolff, a professor of law at Penn Law School, told students at a Lambda Law meeting in February.

Wolff began investigating the policy 14 years ago as a 3L at Yale Law School. He wrote his first law review article that year which concluded DADT "represented a singular kind of speech regulation in American legal history." During his career at Paul Weiss Rifkind Wharton & Garrison LLP, Wolff met Jeh Johnson, general counsel of the Department of Defense, who would later call him to the Pentagon to discuss issues surrounding DADT.

But Wolff received his most important assignment during the 2008 presidential election when future President Barack Obama asked him to serve as his campaign's chief advisor and spokesperson on lesbian, gay, bisexual, and transgender (LGBT) issues.

"Astonishingly, (Obama) put DADT on the table in the very first meeting he had with his military leaders and advisors as president," Wolff said. "What he understood was that the only way to actually get this policy repealed through Congress was to have the Secretary of Defense Robert Gates and the Chairman of Joint Chiefs of Staff Mike Mullen affirmatively and actively on board in the process of repealing the policy. Had the president forged a way forward that was opposed by either of them, or even sort of reluctantly acquiesced by them, it would have been politically impossible to get this done in Congress."

Obama worked closely with his senior defense team for over a year to build support for repealing DADT, Wolff said.

As a result, Chairman Mullen delivered testimony to the Senate Armed Forces Committee in favor of repeal, and it "irrevocably changed the conversation forever," according to Wolff.

Before the repeal takes effect, however, Obama and his senior defense team will have to certify that it will not hamper military readiness, Wolff said. New regulations must be put in place to clarify the status of gay and bisexual troops in the military and commanders will need to be trained on how to report harassment.

While the amount of time needed to fulfill the requirements is still being debated, Wolff predicts that the repeal will go into full effect by summer.

"My hope is now that there's been a collective moment of everybody saying that was bad and we put it behind us, people will start looking at it not just as a gay issue but as a much more serious threat to a set of constitutional values," he said.