Helen L. Norton (University of Colorado School of Law) has posted The Equal Protection Implications of Government’s Hateful Speech. The abstract follows.
Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the equal protection clause? Government speech that communicates hostility or animus on the on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important behavior, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms potentially posed by such government expression. The recent emergence of the Court’s government speech doctrine — which to date has emphasized the value of government expression without yet fully addressing its potential costs — offers an important new opportunity to consider the situations in which government speech might offend equal protection values.
This Article offers a framework for assessing the equal protection implications of government speech that expresses hatred on the basis of class status. To this end, it first identifies the ways in which such speech might inflict a range of behavioral and expressive harms. The Article then describes lower courts’ general failure to address these potential harms when considering equal protection challenges to such government expression, and contrasts courts’ more expansive understanding of the constitutionally salient harms potentially posed by government’s religious speech in the establishment clause context.
Drawing from the establishment clause experience, the Article then proposes two alternatives for determining when government’s hateful speech runs afoul of equal protection values. First, under a behavioral harm approach, we might understand the equal protection clause to prohibit hateful government expression when it would facilitate private parties’ discrimination or cause its targets to alter their behavior — e.g., by discouraging class members from pursuing a government job or petitioning the legislature because they reasonably conclude that such efforts would be pointless or unwise. Second, under an expressive meaning analysis, we might understand the equal protection clause to prohibit government speech that communicates that class members are outsiders or second-class citizens. After addressing possible objections, the Article concludes that both approaches more accurately recognize those situations in which government speech may inflict harms repugnant to equal protection values than does the status quo, which largely ignores or dismisses those harms.