Richard C. Schragger

What Is “Government” “Speech”?: The Case of Confederate Monuments

PUBLISHER
Kentucky Law Review
DATE
2020
 

Abstract

The concept of “government speech,” like much of First Amendment doctrine, is built upon three familiar distinctions: the distinctions between speech and conduct, public and private, and coercive and non-coercive. All three distinctions are implicated by recent conflicts over Confederate monuments. The first distinction — between speech and conduct — prevents courts from appropriately weighing the discriminatory harms of Confederate iconography, in large part because of the assumption that most constitutional restraints on government apply to conduct and not to “mere” speech. The second distinction — between public and private speech — also tends to insulate the government’s expressive conduct. If the government is speaking, it need not abide by the neutrality requirements of the First Amendment; there is no necessity for the government to be even-handed in its pronouncements. The third distinction — between coercive and non-coercive speech — is also implicated by conflicts over Confederate statuary. Are citizens being coerced when they are required to pass a memorial honoring the Confederate dead in order to enter a government building? Are local taxpayers being forced to speak by state laws mandating that cities maintain their Confederate monuments? 

This Article argues that the distinctions underlying the government speech doctrine are in many instances untenable. It further considers two possible constitutional principles that might serve as checks on discriminatory government speech: a more robust principle of expressive equal treatment and a less stringent but nonetheless meaningful principle of minimal representativeness. If courts will not enforce the former than they should at least enforce the latter. Legitimate government speech must be, by definition, representative. The Article applies this principle to current controversies involving Confederate monuments.

Citation

Richard C. Schragger, What Is “Government” “Speech”?: The Case of Confederate Monuments, 108 Kentucky Law Review 665-694 (2020).
 

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