Remedies and the Government's Constitutionally Harmful Speech

Abstract

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In this contribution to a symposium on remedies, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow — along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can and should be available to redress the government’s constitutionally harmful speech. Indeed, courts have long considered injunctive relief in cases challenging what we only now describe as “government speech.” Examples include court orders that require the government to stop, take down, or excise its threatening, inaccurate, hateful, or otherwise harmful speech that violates specific constitutional protections. Sometimes, moreover, the government’s speech inflicts damage of the sort that the law has traditionally treated as relatively quantifiable; examples include the government’s lies that lead to wrongful arrest or imprisonment or the government’s threatening speech that leads to a target’s job loss. Even when the constitutional injuries inflicted by government speech can be difficult to quantify in monetary terms, nominal damages can serve both expressive and deterrent functions. Finally, declaratory relief is generally available to “call out” — i.e., name and shame — governmental speech that violates specific constitutional protections even absent a viable claim for damages or injunctive relief.

My ambition for this short essay is simply to show that, in some situations, government speech that harms specific constitutional interests is amenable to constitutional remedies. In so doing, I hope to provide a platform for future thinking and problem-solving.

Keywords: remedies, Constitution, government speech, government lies, First Amendment, injunctions, declaratory relief, equal protection