Richard Schragger
Living in Charlottesville, I could not
read Helen Norton’s excellent new book, The Government’s Speech and the
Constitution, without thinking about the events of
August 2017
and the controversies surrounding the removal of Confederate monuments in
states across the South and elsewhere. Professor Norton’s book addresses a
number of issues implicated by those events. Obviously, the Confederate
monuments that stand in the middle of Charlottesville and that white
supremacists were ostensibly “defending” when they rioted here are “government
speech.” So, too, the previous vote by the Charlottesville city council to
remove the monuments is a form of government expression as are the city’s filings
in a lawsuit contesting its authority to do so. President Trump’s statement after
the “Unite the Right” rally that there were “very fine people on both sides” is
a form of government expression. And if the city does remove its monuments (the Virginia
legislature recently lifted a ban on doing so), that too would be a form of
government expression. Meanwhile, the white supremacists have asserted in a
federal civil rights lawsuit that they were only engaged in “speech” and not in
a conspiracy to commit violence—a claim about what kinds of communicative acts
the government can punish.
I had not thought very hard about
Confederate monuments before 2017, though I had
thought some about crosses and Christmas displays; religious
government speech has long been a contested topic in the First Amendment and
one that Professor Norton discusses extensively. But the events in
Charlottesville, and now Professor Norton’s book, have convinced me that the legal
categories that we have heretofore used to analyze these kinds of expressive
acts are mostly incoherent. Indeed, the very concept of “government speech” is
itself troubled, something to which the title of Professor Norton’s book
alludes. Professor Norton writes of the “government’s speech”—an activity—not
of “government speech”—a doctrinal category. That is because the latter is both
too narrow and too contested, as Professor Norton understands.
Nevertheless, I wonder how far Professor
Norton would go in dismantling the conceptual apparatus that undergirds
government speech. Her project is more constructive. I think she believes that the
current doctrine can be applied given some sensible reforms. I am less
sure.
Speech/Conduct
Start with the speech/conduct
distinction, which Professor Norton sometimes seems to embrace but that her
book also erodes. For example, early in the book, Professor Norton adopts a
distinction between “soft” and “hard” power—drawing a distinction between the
exercise of government power—speech—that is different from “its lawmaking and
other regulatory actions that control behavior.”
Much of the argument of the book,
however, seeks to assimilate speech to other forms of government conduct that are
susceptible to constitutional regulation. Professor Norton argues strongly
against the “sticks and stones” view of speech—the idea that “mere words”
cannot do harm or that any harm of speech is not equivalent to kind of harm caused
by conduct. And I take it that one of her strategies is to include within the
“government speech” category a set of communicative acts—like police interrogation,
threats, or government lies—that many of us might call acts.
I agree with Professor Norton’s view
that communicative acts often cause harm and I agree with Fred Schauer (and Stanley
Fish) that what we call “speech” is really a conclusion that reflects an
implicit balancing of the harms of expressive conduct against its benefits in
favor of the conduct. Professor Norton describes three kinds of constitutional
problems that government speech might pose. The first is that the government’s
speech might change a citizen’s choices or opportunities in material ways. The
second is what she calls a dignitary or expressive harm: the government’s
speech might treat a citizen or groups of citizens as less than equal. The
third problem is that the government’s speech might be motivated by an improper
purpose.
These constitutional problems are not
exclusive to speech, of course. They could characterize the potential
constitutional problems with any government act, whether purely
communicative or regulative. Whether characterized as “speech” or “conduct,”
we’d have to resort to substantive constitutional law to figure out how to
proceed in all these instances.
I would slice
things a little differently. Government speech, like conduct, can
cause material harms, including dignitary ones. But the government’s
communicative acts, like all kinds of conduct, might also be wrong because of their
social meaning. Here I borrow from expressivists like Deborah Hellman, who consider
the constitutionality of government acts—whether “speech” or not—by considering
the meaning conveyed by the act. For expressivists, the speech/conduct distinction
is irrelevant. 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.
That test can be applied to the erection of a Confederate statue just as it can
to any other government activity. On this account, an “expressive
equal treatment” principle is not some outlier—secondary to the “real” harms
that equal protection is trying to address. Instead, it is at the core of equal
protection.
Public/Private
Professor Norton also writes lucidly
about the term “government” in “government speech.” Figuring out when the
government is speaking is what Professor Norton calls a “first-stage problem.” She
proposes a transparency principle, the purpose of which is ensure that citizens
are not confused about who is speaking. This enables them to hold the government
politically accountable for its speech.
She is fully aware of how the Court can
manipulate the public/private distinction to suit its needs, however. If speech
is private, it cannot be regulated for content; it is also not limited by the Establishment
or Equal Protection Clauses. If speech is public, it need not abide by the
First Amendment’s content neutrality requirements, though it might need to
comport with the Establishment and Equal Protection Clauses. The decision about
whether speech is public or private is often outcome determinative.
There are lots of difficulties here and
Professor Norton writes about them with considerable clarity. Consider prayers offered
by volunteer clergy at the
invitation of a town council. The Court has held that such prayers are
more “private” than “public” and that it would be problematic for the
government to modify or reject these prayers even if they are sectarian in
nature. On the other hand, the Court has ruled that a Ten
Commandments monument accepted as a gift and erected in the city’s public park
is government speech and thus does not impose an obligation on the city to
treat all speech equally by accepting other gifted monuments.
I don’t think the concept of “government
speech” is doing much work in these cases. Instead, what is driving the Court’s
public/private determinations is a substantive vision of the Establishment
Clause. The conservatives on the Court reject an expressive equal treatment
principle, which had come in the form of Justice O’Connor’s famous “endorsement
test”—intended to ensure that the government did not denigrate religion or
specific religions. In the recently decided Bladensburg Cross case, the Court has mostly
rejected non-endorsement. It now looks increasingly
plausible that the Court will dismantle most if not all restrictions on the
government’s religious speech.
There is a deeper problem, however, with
the very subject of “government speech” insofar as it takes the state action
doctrine as a given. If we assume that speech, like conduct, causes serious
harm, why are “private” speakers permitted to cause that harm when “public”
speakers are not? Why not hold citizens to a principle of expressive equal
treatment? Indeed, the muddiness of the categories provides opportunities for
abuse. Donald Trump’s denigrating, demeaning, and dangerous tweets (some
supporting white supremacy), for example, reside in that purposefully ambiguous
space between public and private.
This space gives speech theorists fits;
the maintenance of the public/private distinction is seen as necessary to allow
the government to say things we want it to say while preventing the government
from engaging in censorship. But many people not steeped in the state action
doctrine do not readily distinguish between the marching neo-Nazis and a statue
of Robert E. Lee in a city park, or between the government and Facebook, or
between campaign donors and politicians. And they are not wrong to find these distinctions
puzzling. The Robert E. Lee statue in the middle of Charlottesville was a gift
funded by private donations, erected by whites in a whites-only park, and
dedicated at a time when the Ku Klux Klan, a
paramilitary terrorist organization with deep ties to the ruling class, marched
through black neighborhoods. No wonder so many people are disillusioned with the
concept of “free speech.”
The
Political Economy of Government Speech
Professor Norton’s book is a terrific
tour through these many contradictions and complexities; I have and will
continue to rely on it in my own work. She is acutely aware of the slipperiness
of existing categories. I wonder, however, if the project is doomed—not because
Professor Norton fails to offer correct approaches to difficult doctrinal
problems, but rather because in this current political environment, government
speech doctrine is not susceptible to principled application.
The current Court’s fetishization of speech
has a clear political valence. The Roberts Court is (to use Justice Kagan’s
phrase) “weaponizing” the First
Amendment to dismantle the regulatory state as it retreats from limits on the
government’s religious (and other) speech. Meanwhile, the political donor class
and white supremacists both march under the banner of “free speech.” Five
justices think that the President’s clear anti-Muslim statements and (other
expressions of animus) are not grounds for
the invalidation
of federal laws that target discrete ethnic, racial, or religious groups. At
least four justices think that Confederate battle flags on state-issued
license plates
are protected speech. These positions seem to have more to do with the
political sympathies of the justices than their decided views on government
speech.
It also may be that the equality/speech
conflict is intractable. Dangerous speech is not being addressed by the Supreme
Court. The Court can’t or won’t constrain the giant social media companies, who
now dwarf the government in their ability to control the speech
environment—with huge public costs. 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.
Richard Schragger is Perre Bowen Professor at the University of Virginia School of Law. You can reach him by e-mail at schragger@law.virginia.edu