This Essay, written as part of a symposium on Helen Norton’s book on government speech, considers the role the Supreme Court’s animus doctrine can play in limiting government speech that denigrates minorities. After Part I frames the issue, Parts II and III consider the doctrinal roadblocks and complexities, most notably the disparate impact requirement, that attend equal protection attacks on such speech. As a possible response to those roadblocks and complexities, Part IV traces the history of animus doctrine and explains its current status in equal protection law. It also explains, however, that while animus doctrine can often play a useful role in avoiding obstacles that bedevil other equal protection doctrines, one thing it cannot do is avoid the disparate impact requirement that in the past has doomed equal protection challenges to denigrating government speech.
Part V considers the possibility that animus-style reasoning can nevertheless play a useful role in combatting such speech, by transplanting its insights into an analysis that focuses on government’s legitimate powers. Part V observes that any legitimate exercise of government power must stem from government’s pursuit of a legitimate interest. Thus, if government is deemed to have acted based on what the animus cases call “a bare . . . desire to harm a politically unpopular group,” then it should be understood as having acted beyond the legitimate scope of its power. A powers approach of this sort avoids the problems the Essay earlier identified as impeding an equal protection analysis. It also provides the more conceptual benefit of linking animus doctrine to American constitutional law’s nineteenth century antecedents—most notably, that earlier era’s focus on the legitimate reach of government’s “police power.”
Part VI applies this powers approach, both to cases in which government speech is collateral to a substantive regulatory program, and to cases involving pure government expression, for example, when government expresses the polity’s values by displaying particular symbols. Those applications make it clear that a powers approach does not make otherwise-difficult questions easy. But the Essay concludes in Part VII by arguing that, at the very least, a powers approach asks the right questions. Continued work on its proper application will assist in reaching the right answers to those hard questions.
a. Stanley A. August Professor of Law, Brooklyn Law School. Thanks to Helen Norton and the editors of the Illinois Law Review for inviting me to participate in the symposium on Professor Norton’s book on government speech. Thanks also to the participants at the Loyola-Chicago School of Law’s Constitutional Law Colloquium for very helpful comments. Thanks as well to Kathleen Darvil of the Brooklyn Law School Library for assistance in locating sources. Finally, thanks are also due to Chynna Foucek for fine research assistance.
The full text of this Symposium is available to download as a PDF.