3 - The Government’s Speech and Equality

Summary

This chapter considers when the government’s speech violates the Equal Protection Clause. It starts with an illustrative sketch of the government’s wide-ranging speech about equality that features heroes, villains, and some that are hard to characterize. It then explores three different approaches to the Equal Protection Clause problems sometimes triggered by the government’s speech, approaches that consider the consequences of, and the motivations underlying, the government’s speech. First, does the government’s speech disadvantage its targets’ opportunities based on race (or other protected characteristic), and does the Clause bar the government from causing that disadvantage? Next, does the government’s speech inflict expressive harm by communicating hostility to or disrespect for its targets based on race (or other protected characteristic), and does the Clause bar the government from inflicting that harm? Finally, is the government’s speech motivated by animus, and does the Clause bar the government from speaking for that reason? The chapter closes by applying these approaches to several problems, including governments’ display of the Confederate flag.