Balkinization: The Government’s Speech and Its Complexities

The Government’s Speech and Its Complexities

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton

My thanks to Jack Balkin for hosting this symposium on my book, “The Government’s Speech and the Constitution,” and to each and every one of the symposium’s terrific contributors. For those who do what we do, there may be no greater gift than a thoughtful, engaged, and generous read of one’s work. That this gift comes from colleagues whose own work I have long admired—and during a time of great challenge and uncertainty—makes it all the more meaningful. Thanks too to Alex Tsesis, in his role as series editor, for including the book in Cambridge University Press’s Series on Civil Rights and Civil Liberties.

This book represents my effort to describe and explore the complexities of the constitutional questions triggered by the government’s speech, and to offer a framework for thinking about those questions. What value does the government’s speech provide, what dangers does the government’s speech threaten, and does the Constitution protect us from those dangers?

I propose a framework that requires us to wrestle with what I call “first-stage” and “second-stage” government speech problems. First-stage problems force us to untangle competing governmental and private claims to the same speech: this is important because the constitutional rules that apply to the government when it speaks itself are very different from those that apply to the government when it regulates others’ speech.

Second-stage problems require us to consider whether and when what we have determined to be the government’s speech infringes rights protected by the Establishment Clause, the Equal Protection Clause, the Due Process Clause, and other constitutional provisions. To help us think about these second-stage government speech problems—that is, whether and when the government’s speech violates our constitutional rights—I propose that we ask and answer a series of questions about the consequences of, and the motivations underlying, the government’s speech.

When we look at the effects of the government’s speech, I suggest that we ask whether the government’s speech has altered its targets’ choices and opportunities to their disadvantage, and whether a specific constitutional provision forbids the government from causing such harm. Think, for example, of the government’s threats that silence dissenters as effectively as jailing them, the government’s lies that pressure its targets into relinquishing their constitutional rights as effectively as denying those rights outright, or the government’s religious speech that coerces listeners’ participation in prayer or other religious observance as effectively as fining or taxing those who fail to partake. Under certain constitutional understandings, moreover, the government’s speech may violate specific constitutional provisions when it inflicts expressive, or dignitary, harm upon its targets: think here of the government’s speech that communicates a message of disrespect or hostility to its targets based on who they are or what they believe

And when we look at the government’s motives for speaking, I suggest that we ask why the government chose to speak in a certain way, and whether a specific constitutional provision denies the government the power to speak for that reason. This may be the case, for example, of the government’s speech intended to advance some religions at the expense of others, to harm members of unpopular groups, or to interfere with constitutionally protected rights.

A number of the symposium’s contributors rightfully puzzle over the slippery divides between speech and conduct, and between public and private—divides that any discussion of government speech requires us to navigate. For example, Fred Schauer (whose important contributions to our understanding of speech in general and the First Amendment in particular are too numerous to catalog) explores the often-illusory distinction between speech and conduct, and how “the very idea of free speech may require more of a distinction between speech and action than close analysis can justify.”

Relatedly, Schauer observes that what the government says is a small subset of what the government does, such that the government can interfere with the exercise of constitutional rights in a multitude of ways apart from its speech. This leads him to muse that “it seems peculiar to worry about government speech when government speech is but a subset of all of the things that government can do, wisely or unwisely, helpfully or harmfully.”

I agree that the government’s speech is neither the only nor the most serious governmental threat to our constitutional rights. Instead, I simply seek to show that the threats posed to those rights by the government’s speech are both real and underappreciated—and that the Supreme Court’s current doctrine is dangerously incomplete in its failure to grapple with the ways in which the government’s speech sometimes affirmatively threatens specific constitutional protections. In other words, the government’s speech as well as its conduct sometimes inflicts grave harm (the same is true of our own speech and conduct, as Schauer notes, even as he recognizes “the fragility” of the line between the two). And the government’s speech is sometimes more dangerous than our speech precisely because of its governmental source.

Indeed, as Nelson Tebbe observes in his symposium contribution (and as he fleshes out in more detail in noteworthy earlier work), the government’s “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.” For this reason, Tebbe points out (and I agree), the government is not just another speaker competing in the marketplace of ideas, a marketplace in which we generally identify counterspeech (rather than legal constraint) as the appropriate remedy for the speech that we hate.

Yet, as Tebbe documents, the Supreme Court’s modern approach to government speech problems increasingly emphasizes the speech/conduct divide while ignoring the public/private divide. In other words, the Court too often considers the government’s speech (as opposed to its conduct) to be relatively harmless, such that it (like nongovernmental parties’ speech) requires little if any legal constraint. As evidence of this trend, consider the Court’s decision in American Legion v. American Humanist Association. There the majority continued to retreat from an understanding of the Establishment Clause that would forbid the government from communicating a message of religious endorsement, a message of inclusion in (or exclusion from) the political community based on religion or nonreligion. Justices Gorsuch and Thomas further argued that those confronted by such a government message had suffered no cognizable injury and thus lacked Article III standing. Tebbe thus explains how, in the Court’s view, the government “has become an ordinary speaker, and its endorsement of Christianity does not inflict cognizable injury on Jews, Muslims, Sikhs, Jains, Hindus, or nonbelievers.”

Rich Schragger also bemoans this trend, in particular the Court’s rejection of expressive meaning as the key to understanding when the government’s choices violate the Establishment Clause or Equal Protection Clause. Under an expressive meaning approach, as Schragger thoughtfully explains here and elsewhere, “The only thing that matters is whether the government conveys a demeaning or denigrating message through its activities—for example, whether it conveys a message of exclusion to one religious group by celebrating another.” Recalling Charlottesville’s experience in the summer of 2017 in which white supremacists protested—with deadly results—the city’s removal of its Confederate statutes, he additionally challenges the limits of the state action doctrine and its blindness to the threats to equality that nongovernmental speakers also pose.

Schragger closes by wondering whether much of my project is “doomed,” as he doubts that the current Court can be persuaded to adjust and improve its approach to the constitutional questions triggered by speech, governmental or otherwise. After identifying the Court’s contemporary First Amendment doctrine as empowering commercial actors (like social media companies and corporate political speakers) along with religious actors and white supremacists, he concludes that

These positions seem to have more to do with the political sympathies of the justices than their decided views on government speech. . . . And it is apparent that most of justices on the Court think that speech trumps equality all the time. That view is tough to take from my perspective sitting in Charlottesville, where the equality/speech trade-off looks increasingly one-sided.

To be sure, I understand Schragger’s skepticism. I don’t know whether the present Court can be persuaded to more thoughtfully consider the ways in which the government’s speech sometimes threatens constitutional harm. Yet my project is both aspirational and pragmatic: it seeks to identify a principled and workable framework—available to courts, litigants, other government speakers, and the people themselves—to help think through important and challenging government speech problems. Who, and how many, will take me up on my suggestions remains to be seen.

Caroline Mala Corbin’s contribution to this symposium does exactly that, as she applies the framework I’ve proposed to explore the emerging constitutional questions raised when teachers and professors at public educational institutions refuse to use transgender students’ preferred pronouns in their classrooms.

Corbin (who has written thoughtfully about a range of government speech issues—see, for example, here and here) starts by examining the first-stage question of whether such misgendering reflects the individual educator’s speech pursuant to their official duties. If so, then the First Amendment permits the public school or university to discipline the refusal under Garcetti v. Ceballos, which holds that the government employer has bought such speech—and the power to control it—with a salary. And if not, then the First Amendment still likely permits the public school or university to bar such misgendering under the Pickering-Connick framework, which holds that the First Amendment allows a public employer to discipline its employees’ speech as citizens when that speech unduly interferes with the government’s operations.

If such misgendering reflects the government’s own speech, Corbin then considers the second-stage question whether it violates the Equal Protection Clause. To this end, she powerfully demonstrates how public education institutions’ speech that misgenders its students can create a hostile environment that limits and interferes with trangender students’ educational opportunities. She also shows how the government’s misgendering can communicate a message of disrespect that violates an expressive meaning understanding of the Equal Protection Clause: as she observes, “It is difficult to imagine a more fundamental gesture of disrespect than refusing to address a person as they wish to be addressed.” Finally, she notes that the government’s misgendering may not only inflict constitutionally impermissible effects but may also reflect constitutionally impermissible motives if inspired by animus. As Corbin persuasively concludes, “Applying [the analytical framework my book proposes] leads to the conclusion that a public school not only may discipline a teacher who refuses to address transgender students with their appropriate pronouns, but its failure to do so runs the risk of violating the Equal Protection Clause.”

In addition to providing a framework for thinking about the constitutional questions raised by the government’s speech, in writing this book I sought to highlight the many manifestations of the government’s speech, with its wide range of speakers, audiences, topics, means, motives, and consequences. The more we recognize the volume and variety of the government’s speech in our lives, the more clearly (I hope) we can think about its constitutional implications.

For example, the government itself is composed of a multitude of speakers, as “the government” can refer to any of many public institutions and officials within the United States. Although we often focus on the President’s expression as among the most visible examples of government speech, legislative and judicial branch speakers—as well as speakers from all levels of federal, state, and local governments—also deserve our attention.

To this end, Josh Chafetz (who is among our most insightful scholars of Congress and its powers both expressive and otherwise) observes that Congress speaks for a wider variety of reasons and in a broader array of roles than we might initially realize. Among other things, he describes what he calls “congressional overspeech,” which involves legislators’ “use of oversight mechanisms to communicate with the broader public.”

In addition to explaining the value of such “overspeech,” Chafetz notes the difficulty in characterizing it as governmental or private: legislators speaking in the context of oversight hearings do so in their official capacities even as they also often vigorously contest official policy. He thus wonders whether such “intra-institutional contestation deserves its own category in our constitutional speech taxonomy.”

This is an interesting and important puzzle. Because such speech is made possible—and has greater capacity to inflict harm—precisely because of the speaker’s governmental status, I lean towards characterizing it as the government’s speech—that is, speech backed by the government’s power. I would describe it as a special variant of government speech that (unlike the speech of most other government actors in their official capacities) is insulated by the Speech or Debate Clause from the constitutional remedies that might otherwise be available. What remains are nonconstitutional remedies like resistance by counterspeakers both public and private. Think here of the Senate’s (eventual) censure of Senator Joseph McCarthy for his expressive abuse of his Senate colleagues.

Mark Graber also illustrates the wide variety of the government’s speech by identifying a fascinating and troubling category of what he calls “extraordinary” government speech—that is, government speech that “explicitly challenge[s] constitutional norms, constitutional decisions or the constitutional text” in ways that escape the application of the doctrinal framework that my book suggests. (Graber’s wide-ranging and impressive body of constitutional law scholarship includes earlier work that identifies and addresses other instances of “extraordinary” government action.)

As Graber points out, if a city or state were to post a sign at its border stating “White Supremacy Forever” or “This is for Lutherans Only,” it would likely violate the Constitution. For example, this sort of government speech may inflict material damage or stigmatic harm upon its targets in ways that violate certain understandings of, respectively, the Equal Protection or Establishment Clauses. But Graber notes that a cagey government speaker could inflict the same harms while avoiding constitutional constraint if it were instead to invoke the language of insulated political advocacy to urge “We should amend the Constitution to make this a White [or Lutheran] Commonwealth.” As Graber observes, “What was initially an actionable harm under the First Amendment or Fourteenth Amendment now seems permitted government speech under Article V.”

Graber explains that some other constitutional democracies have addressed this problem by barring constitutional amendments that would alter fundamental constitutional commitments. That approach, however, does not reflect the American tradition—“perhaps because early advocates insisted that the post-Civil War Amendments and, later, the Nineteenth Amendment granting women’s suffrage were unconstitutional amendments.” Graber concludes (and I agree) that the best and perhaps the only response to such “extraordinary” government speech requires resistance by “a public committed to basic constitutional values and an evidence-based politics. Whether the United States still has this public may be the most important question about the status of constitutional democracy in our regime.”

In my concluding post, I will further examine the importance of public resistance to the government’s destructive speech.

Helen Norton holds the Rothgerber Chair in Constitutional Law at the University of Colorado School of Law. She can be reached at helen.norton at colorado.edu.

Posted 4:30 PM by Guest Blogger [link]