E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
First Amendment doctrine famously—and controversially—requires
many offensive beliefs and practices to be remedied in “the marketplace.” The answer
to harmful speech is more speech, according to the cliché. And with respect to
religion, the solution to illiberalism is robust pluralism. On this logic, hate
speech is protected. Corporate employers may embrace religious values without
offending the Establishment Clause, and their dissenting employees can protect
themselves in the labor market. And so forth. Private messaging and private
ordering provide the appropriate remedies for these harms, not government
regulation.
When the government perpetrates such harms, however, you
might expect the answer to be different. And traditionally it has been
different—government has not been treated as just another market participant.
Racialized government speech has been seen to degrade citizenship status,
influencing the ability of individuals to fend for themselves in politics,
society, and the economy. And established religion has been thought to harm not
only individual members of minority faiths but also the majority religion, because
it leads to enervated congregational life like that found in European countries
with established churches.
Strange as it may seem, however, the law of freedom of
speech and freedom of religion now seems to be embracing the marketplace
metaphor even with respect to government speech itself. In other words, the
“sticks and stones” theory of expressive harm is affecting constitutional
doctrine here as well. And the public/private distinction, which otherwise exerts
powerful influence in constitutional law, is being selectively applied. Helen
Norton expertly documents these trends in her elegant new book, The Government’s
Speech and the Constitution.
Consider first the Establishment Clause, which is where
Norton begins as well. Whereas private entities have been free to endorse a
particular religion, at least as a
matter of constitutional law, government traditionally has had a much more
limited ability to declare its support for one religion or another. Yet that
restriction is being relaxed today. Some of the movement is happening under
substantive law, where the Lemon test (with its prohibition on
endorsement) is losing ground to an interpretation that prohibits only
government coercion, accompanied by a view that expression alone can rarely coerce.
And some of it is happening in standing doctrine, which decreasingly recognizes
government speech as capable of inflicting injury (88).
In American Legion
v. American Humanist Association from last term, for instance, the
Court disavowed the Lemon test in all cases where the government engages
in religious speech “for ceremonial, celebratory, or commemorative purposes.”
And Justice
Gorsuch, joined by Justice Thomas, flatly rejected what he called the
“offended observer” theory of standing in Establishment Clause cases, arguing
that a large Christian cross owned and displayed by the government did not
inflict the degree or kind of injury that could allow members of religious
minorities to sue. Gorsuch did not hide the fact that his theory of standing
was connected to a substantive theory of antiestablishment: “[W]ith Lemon
now shelved,” along with its bar on government endorsement of religion, “little
excuse will remain for the anomaly of offended observer standing.” To test the
theory, think of an extreme example like a sign that reads “This Town Is for
Christians.” Faced with such a message, an “offended viewer may avert his eyes”
or petition elected officials. The town has become an ordinary speaker, and its
endorsement of Christianity does not inflict cognizable injury on Jews,
Muslims, Sikhs, Jains, Hindus, or nonbelievers.
The market metaphor is influencing equal protection law as
well. No court challenge to government displays of the confederate battle flag
has succeeded, as Norton carefully documents (19). Even assuming that the flag
carries a discriminatory message that is fully endorsed and expressed by the
government, it cannot be challenged in court and it may not offend equal
protection on the merits. Carlos Moore was an African-American lawyer in
Mississippi, which includes the confederate flag as part of its state flag.
Moore had an appointment
as a city prosecutor, which required him to regularly work in state court,
where the state flag was displayed. However, his equal protection challenge was
turned away by the Fifth Circuit for lack of standing. According to the
court, “the gravamen of an equal protection claim is differential governmental
treatment, not differential governmental messaging.” Here, government is only a
discriminatory speaker—and therefore its speech can be remedied by private
counter-speech. Private ordering is the solution, even when public power is exerted.
Although Norton is extraordinarily openminded—she
appreciates multiple, divergent perspectives on the problem of government
speech—she takes a stand against the trend toward treating the government as a speaker
that competes with private speakers on equal terms in the marketplace. Her
moments of opposition are possible to miss, but they are there. In the
nonestablishment context, for instance, she insists that “the question is not
whether constitutional challenges to the government’s speech are ever justiciable,
but rather when and how” (89). She chides the Moore court for ignoring
the possibility that Mississippi’s choice to display the confederate flag was
motivated by a discriminatory purpose and therefore unconstitutional without
regard to any of its effects (124). And she concludes that “the answer to the
question ‘When does the government’s speech violate the Equal Protection
Clause’ is not ‘never’ but instead ‘sometimes’” (126). Norton’s generosity has
a limit, and that limit is reached when courts suggest that all government
speech can be remedied through private action.
Admittedly, the government’s role as speaker is different
from its role as regulator. Proponents of the market metaphor often emphasize that
difference. But even granting that point, government may still be distinct from
other speakers—its capacity to alter the standing of subjects, and to impede
their participation in public life, may be more (and differently) powerful than
that of others.
If there is a gap in the book, it is a lack of attention to
nonjudicial remedies for constitutional harms inflicted by state speech. Challenges
outside of courts have been successful, and they have had constitutional
significance. Some of Norton’s own examples show this to be true. For instance,
she quotes at length from New
Orleans Mayor Mitch Landrieu’s speech explaining his decision to remove confederate
monuments, an address with important constitutional overtones (94-95). For
Mayor Landrieu, even asking citizens to “drive by”—that is observe, to
use Gorsuch’s word—monuments to leaders who sought to deny the humanity of
racial minorities is “perverse and absurd.”
Whether government speech alone can ever inflict
constitutional harm is a live question today, and the answer is trending toward
“no.” Helen Norton gives a different answer. Advocates on both sides of that
important issue will have to contend with her meticulous and carefully-reasoned
analysis.
Nelson Tebbe is Professor of Law at Cornell Law School. You can reach him by e-mail at nt277 at cornell.edu