Unconstitutional Government Speech
59 Pages Posted: 12 Oct 2019
Date Written: October 11, 2019
This Article uses recent controversies over government-sponsored religious symbols and Confederate iconography to consider the appropriate constitutional limits on the government’s symbolic expression. It contrasts two types of constitutional harm that can arise from the government’s expressive acts. Expressions that harm refers to denigrating or exclusionary government speech that causes material harms to members of the community. Expressive wrongs describes constitutional wrongs that arise when the government has an improper motive or when a government action conveys an improper social meaning. After describing instances in which the Supreme Court has embraced one or the other theory of constitutional harm, I argue that symbolic speech, whether religious or not, can and should be subject to constitutional constraints under either theory.
The Supreme Court has been increasingly unwilling to impose substantive constraints on government symbolic speech, however. This past Term, the Court decided American Legion v. American Humanist Association, holding that a forty-foot tall Latin cross in Bladensburg, Maryland did not violate the Establishment Clause. It further held that long-standing government-sponsored religious symbols enjoy a presumption of constitutionality. In this Article, I assume the ascendance of what I call the majoritarian public square. But I argue that even as the doctrine becomes less amenable to imposing content constraints on government speakers, it should be attentive to the relative representativeness of government speech. Government symbolic speech that is a product of, or results in, the entrenchment of permanent symbolic majorities, that favors some private speakers over others, or that is imposed by one political community on another, should be constitutionally troubling. I apply these minimal conditions for constitutional government speech to the Bladensburg Cross case and cases involving Confederate monuments.
Keywords: government speech, crosses, Confederate iconography, Supreme Court, Establishment Clause, Free Exercise Clause, Equal Protection Clause, expressive equal treatment, expressive theories of law
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