The equal protection implications of government's hateful speech.

• Author: Norton, Helen
• Position: II. The Potential Harms of Government's Hateful Speech B. Expressive Harms through Conclusion, with footnotes, p. 181-209

2. Expressive Harms

   In analyses of "hard law" that may also apply to government speech and other forms of "soft law," (61) a number of scholars have explored potential expressive harms caused by governmental actions that communicate the government's view of class members' inferiority. Under such an expressive meaning approach, the government inflicts a constitutional wrong simply by sending a message of inferiority based on class status, regardless of whether listeners suffer emotional distress or experience material harm as a result. (62) Deborah Hellman, for example, has applied expressive meaning theory in the equal protection context, albeit focusing on the government's action or "hard law," rather than on government speech or other forms of "soft law." (63) She concluded that a governmental act is repugnant to equal protection values when its meaning conflicts with the government's obligation to treat each person with equal concern, even absent any showing of stigmatic effect on its targets--that is, even absent any showing of psychological or reputational injury, or behavioral harm. (64) Deborah Brake similarly defines the "fundamental principle of equality [to] require[] equal concern, a broader principle than mere equal treatment. An equal concern principle must be sensitive to inequality in social relations and must reject actions that devalue and exclude persons from equal membership in a shared community." (65) Although, to date, expressive meaning scholars have made this point in the context of evaluating "hard" rather than "soft" law, (66) whether the government delivers that hateful message through "hard" law or "soft" should be immaterial if these scholars are right about the sort of expressive harm that is constitutionally salient for equal protection purposes. (67) Antisubordination theorists are especially likely to agree that government's hateful speech perpetuates longstanding patterns of hierarchy and subordination by inflicting expressive harm on the basis of class status. (68) Some anticlassification theorists, however, emphasize the difference between "hard" and "soft" law as constitutionally relevant in this context and thus may resist characterizing government speech that inflicts expressive harm as a cognizable classification for equal protection purposes given the comparative diffuseness of such "effects." (69) But perhaps some other anticlassification theorists may agree that government's hateful speech classifies its targets in ways that should be understood to violate the Equal Protection Clause, especially if we recall anticlassification theory's roots in both moral and instrumental grounds. (70) Under this view, government's hateful speech can be seen as not only morally offensive in demeaning its targets based on their class status but also instrumentally dangerous by contributing to social divisions and instability. In short, government's hateful speech can communicate a subordinating message repugnant to most antisubordination theorists and can classify its targets in ways that may trouble at least some anticlassification theorists.

   3. COURTS' CONTRASTING EQUAL PROTECTION AND ESTABLISHMENT CLAUSE ANALYSES OF GOVERNMENT SPEECH

   The preceding Part explored a variety of behavioral and expressive harms potentially inflicted by government's hateful speech. This Part now describes lower courts' failure to grapple thoughtfully with these possibilities when considering equal protection challenges to such expression. It then contrasts courts' more expansive understanding of constitutionally salient harms when evaluating Establishment Clause challenges to government's religious speech.

1. Equal Protection Clause Analysis

   In cases decided long before the recent emergence of the Court's "government speech" vocabulary, the Court appears to have recognized at least two situations in which government speech might deny its targets "the equal protection of the laws." (71) For example, we might understand the Court's decision in Lombard v. Louisiana to conclude that government speech commanding discrimination by private actors violates the Equal Protection Clause, (72) and its decision in Anderson v. Martin to mean that government speech that facilitates such discrimination does so as well. (73) Despite these precedents, however, lower courts have been generally unwilling to credit equal protection challenges to government speech.

   More specifically, the small number of cases in this area involve various constitutional challenges to governments' expressive display of the Confederate flag. There the courts first required plaintiffs to show that the government's expressive choice had both a discriminatory purpose and a discriminatory effect. (74) They then defined the requisite discriminatory effects narrowly, (75) found none, and thus avoided inquiry into whether the government's speech was actually motivated by a discriminatory purpose. (76)

   For example, in NAACP v. Hunt, the Eleventh Circuit found that Alabama's expressive choice to fly the Confederate flag above the state capitol dome inflicted no discriminatory harm on African Americans. The panel concluded simply that whites as well as African Americans were offended by the flag's display, and that such offense thus did not establish the requisite discriminatory harm for equal protection purposes: "[T]here is no unequal application of the state policy; all citizens are exposed to the flag. Citizens of all races are offended by its position." (77) Thus not only did the court fail to explore the possibility that the flag might inflict discriminatory behavioral harm--for example, that it might deter African Americans from pursuing certain activities or opportunities --but it also rejected expressive harm as a constitutionally sufficient injury.

   Several years later, and for similar reasons, the Eleventh Circuit rejected an equal protection challenge to Georgia's incorporation of the Confederate flag into its own state flag design. (78) There the plaintiff focused specifically on the flag's differential harms as experienced by African Americans, alleging that "the flag's Confederate symbol, which is often used by and associated with hate groups such as the Ku Klux Klan, inspires in him fear of violence, causes him to devalue himself as a person, and sends an exclusionary message to Georgia's African-American citizens." (79) The panel, however, found the plaintiff's evidence insufficient to prove the required discriminatory effect:

   After carefully reviewing the record, and drawing all inferences in the light most favorable to appellant, we find no evidence of a similar discriminatory impact imposed by the Georgia flag .... He testified that the Confederate symbol in the Georgia flag places him in imminent fear of lawlessness and violence and that an African-American friend of his, upon seeing the Georgia flag in a courtroom, decided to plead guilty rather than litigate a traffic ticket. This anecdotal evidence of intangible harm to two individuals, without any evidence regarding the impact upon other African-American citizens or the comparative effect of the flag on white citizens, is insufficient to establish 'disproportionate effects along racial lines.' Coleman also offered the affidavit of another witness who testified that, in his opinion, the flying of the flag promotes violence against blacks and continues to represent a symbol of Georgia's efforts against integration. This mere allegation, without any accompanying support, also is not sufficient to demonstrate a disproportionate racial effect. (80) The panel thus cursorily declined to credit the various behavioral and expressive harms alleged by individual African Americans as establishing the requisite effects for equal protection purposes. (81)

   In short, even assuming arguendo that the Confederate flag communicates an intentionally hateful government message, which remains contested, (82) the courts concluded that the harms or effects of such expression were not sufficient to establish a violation of the Equal Protection Clause. The next section contrasts courts' more expansive understanding of the constitutionally relevant harms of government speech in the Establishment Clause context.

2. Establishment Clause Analysis

   The Establishment Clause context offers the only area outside of the Free Speech Clause (83) in which courts have, to date, seriously wrestled with the constitutional implications of government speech. Indeed, on a number of occasions the Supreme Court has upheld Establishment Clause challenges to what we now understand as government expression.S4 There the Court has held that government action--including, but not limited to, government's religious speech --violates the Establishment Clause given a finding of either impermissible purpose (85) or effect; (86) moreover, it has defined the requisite harmful effects comparatively broadly. (87)

   Please note that I do not suggest that the Court's Establishment Clause precedent in any way binds courts considering equal protection challenges to government speech. Instead I simply suggest that we can choose to learn from courts' experience wrestling with whether and when government's religious speech impermissibly "establishes" religion when confronted with the parallel challenge of determining whether and when government's hateful speech might deny "the equal protection of the laws." Note too that the Court's Establishment Clause doctrine is not without controversy. (88) Indeed, the Court has yet to reach consensus on the appropriate approach to such problems; contemporary divisions center primarily --but not only--on the choice between coercion and endorsement analyses. (89) In any event, as described below, courts considering Establishment Clause challenges to government's religious speech have been considerably more willing to accept a wider array of harms as constitutionally salient than have lower courts...