Wednesday, March 18, 2020

Government Speech and the Market Metaphor

Guest Blogger

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

Nelson Tebbe

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

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