The equal protection implications of government's hateful speech.

AuthorNorton, Helen
PositionIntroduction to II. The Potential Harms of Government's Hateful Speech A. Behavioral Harms, p. 159-181

ABSTRACT

Under what circumstances should we understand government's racist or otherwise hateful speech to violate the Equal Protection Clause? Government speech that communicates hostility or animus on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties' discriminatory behavior, deter its targets from certain important opportunities or activities, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms that such government expression potentially poses. The recent emergence of the Court's government speech doctrine--which to date has emphasized the value of government expression without yet fully addressing its potential costs--offers an important new opportunity to consider the situations in which government speech might offend equal protection values.

This Article offers a framework for assessing the equal protection implications of government speech that expresses hatred on the basis of class status. To this end, it first identifies the ways in which such speech might inflict a range of discriminatory behavioral and expressive harms. The Article then describes lower courts' general failure to address these potential harms when considering equal protection challenges to such government expression, and contrasts courts'more expansive understanding of the constitutionally salient harms potentially posed by government's religious speech in the Establishment Clause context.

Drawing from the Establishment Clause experience, the Article then proposes two alternatives for determining when government's hateful speech runs afoul of equal protection values. First, under a behavioral harm approach, we might understand the Equal Protection Clause to prohibit hateful government expression when it would facilitate private parties' discrimination or cause class members to alter their behavior--for example, by discouraging class members from pursuing a government job or petitioning the legislature because they reasonably conclude that such efforts would be pointless or unwise. Second, under an expressive meaning analysis, we might understand the Equal Protection Clause to prohibit government speech that communicates that class members are outsiders or second-class citizens. After addressing possible objections, the Article concludes that both approaches more accurately recognize those situations in which government speech may inflict harms repugnant to equal protection values than does the status quo, which largely ignores or dismisses those harms.

TABLE OF CONTENTS INTRODUCTION I. COMPETING VIEWS OF EQUALITY AND THEIR IMPLICATIONS FOR GOVERNMENT SPEECH II. THE POTENTIAL HARMS OF GOVERNMENT'S HATEFUL SPEECH A. Behavioral Harms B. Expressive Harms III. COURTS' CONTRASTING EQUAL PROTECTION AND ESTABLISHMENT CLAUSE ANALYSES OF GOVERNMENT SPEECH A. Equal Protection Clause Analysis B. Establishment Clause Analysis 1. Coercion Analysis 2. Endorsement Analysis IV. RECONSIDERING EQUAL PROTECTION CHALLENGES TO GOVERNMENT'S HATEFUL SPEECH A. Behavioral Harm Analysis B. Expressive Meaning Analysis C. Applications and Concerns 1. Indeterminacy 2. Standing 3. Unintended Consequences CONCLUSION INTRODUCTION

Although government has engaged in speech since its inception, (1) the Supreme Court has only just begun to consider whether and how the Constitution limits the government's expressive choices. (2) In its "recently minted" (3) government speech doctrine, the Court has held that the Free Speech Clause does not constrain the government's expression, interpreting the First Amendment to include a "government speech" defense to free speech claims by private parties who seek to alter or enjoin a state actor's delivery of its own views. (4) The Establishment Clause context is the only other area in which the Supreme Court has to date wrestled with the constitutional implications of government expression. (5) Whether and when the government's racist or otherwise hateful speech--that is, its speech that intentionally communicates hatred, hostility, or animus on the basis of class status (6)--violates the Equal Protection Clause thus remains unclear under the Court's current doctrine.

More specifically, government speech that communicates hatred, hostility, or animus on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties' discriminatory behavior, deter its targets from certain important opportunities or activities, and communicate a message of exclusion and outsider status. (7) These disturbing possibilities require us to consider the constitutional implications of government's hateful speech. For example, should we understand the Equal Protection Clause to bar a government's decision to adopt and display the motto "White Supremacy Forever" on the state seal or a state license plate? (8) What if a governor or a president were to issue a proclamation or a legislature were to pass a resolution declaring that members of the Latino, Arab, or gay, lesbian, bisexual, and transgender (GLBT) communities are not worthy of respect? (9) Many would consider such governmental messages to be offensive to equal protection values. (10) Yet the small number of decisions in this area--that, to be sure, largely predate the Supreme Court's developing government speech doctrine--do not necessarily confirm...

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