Author Archive for helen-norton
The Fight over Government “Propaganda”
posted by Helen Norton
Earlier I blogged about controversies over government speech on contested issue campaigns. Critics of such government speech express concern that government’s voice threatens to coerce voters’ behavior and to drown out or otherwise unfairly disadvantage dissenting speakers.
Although most of these debates have centered on government expression that opposes or endorses ballot measures pending before the public, some critics also object to the government’s speech to the public that urges a position on contested policy issues to be decided by a legislature. As just one example, the Fourth Circuit recently considered a constitutional challenge to a local school board’s advocacy on proposed school voucher legislation pending before the state legislature. Among other things, the plaintiff there objected to the school board’s voter-directed speech opposing the bill, arguing for First Amendment limits on a government body’s advocacy to voters on a matter to be decided by the state legislature. The Fourth Circuit rejected his constitutional claim (appropriately, in my opinion, for reasons I describe in a recent paper).
Congress has similarly debated the propriety of executive branch officials’ and agencies’ advocacy to the public on matters to be decided by the national legislature. There too controversy swirls not only over the appropriate role of government – and when, if ever, that role demands neutrality or silence – but also over whether and when government speech poses dangers of coercion and unfairness. One often-articulated, but very broad view, characterizes government “propaganda” as any effort by the government to persuade its public listeners. Others are instead troubled only when the government’s persuasive efforts are covert, misleading, or monopolistic.
In response to various concerns about the potential dangers of such expression, Congress has regulated government “propaganda” on a number of occasions. As one example, since 1951 each Congress has enacted an appropriations rider that entirely bars federal agencies from unauthorized expenditures to engage in “publicity or propaganda.” Never, however, has Congress defined this statutory term.
This proposal was initially spurred by members of Congress unhappy with the Eisenhower Administration’s efforts to generate public support for its proposed health care legislation. In particular, the prohibition’s sponsors objected strenuously to, and characterized as potentially totalitarian, public speeches and other materials in support of the Administration’s bill by Oscar Ewing, the head of the U.S. Federal Security Administration (the federal agency that served as the precursor to today’s Department of Health and Human Services). Ewing’s advocacy triggered a debate over the value and danger of executive branch speech that remains unresolved today.
More specifically, congressional supporters of the propaganda ban objected to executive branch officials’ advocacy to the public on an issue pending before the legislative branch as not only potentially coercive of public opinion but also offensive to the appropriate separation of powers. The original congressional debate over the proposed rider thus centered on whether a prohibition on undefined propaganda would interfere with the government’s responsibility to inform the public about its programs, or whether it instead would simply prevent the government from adopting what some characterized as coercive “Soviet-style” governance tactics. The latter view prevailed, and the propaganda ban passed without any definition of the prohibited speech. The ban has remained in place as an appropriations rider throughout the 60 years since its initial adoption.
Despite this longstanding ban, executive branch agencies and officials of course regularly continue to speak to the public about a wide variety of matters, legislative and otherwise. Indeed, the office charged with monitoring the ban’s enforcement – the Government Accountability Office (GAO) – has emphasized government expression’s great instrumental value to the public, and has thus interpreted the ban narrowly and identified violations very rarely.
Later developments, however, renewed attention to the propaganda ban, its definitional deficiencies, and its lack of enforcement. Examples include the Department of Education’s contract with newspaper columnists to produce op-eds supporting the Bush Administration’s “No Child Left Behind” initiative without disclosing the Department’s sponsorship, as well as that Administration’s briefing of and other close involvement with retired military personnel, who then appeared on television as private military analysts offering their view of the war in Iraq and Afghanistan. Those controversies triggered new (but to date unsuccessful) congressional efforts not only to define prohibited government propaganda for the first time, but to define it very broadly.
My paper argues that broad prohibitions on government speech are as unwise as they are unrealistic, concluding that transparently governmental speech – i.e., speech that the public can identify as governmental in origin and thus for which the government can be held politically accountable – generally furthers, rather than frustrates, free speech clause values (and I would put Ewing’s speeches and materials in this category). More appropriate, in my opinion, are targeted restrictions to curb specific abuses. Along these lines, Congress could – and, in my opinion, should — encourage greater executive branch transparency by amending the longstanding propaganda ban specifically to prohibit advocacy in which the government fails to identify itself as the speaker and to provide meaningful enforcement mechanisms to punish and deter such covert governmental speech.
July 29, 2011 at 11:31 am
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If You Want Folks to Accept Your Decision, Don’t Pretend That It Was Easy
posted by Helen Norton
In an article forthcoming in the Journal of Empirical Legal Studies (Lay Judgments of Judicial Decisionmaking), Dan Simon and Nicholas Scurich asked study participants to evaluate the “acceptability,” or legitimacy, of various judicial decisions. Not surprisingly, they found that “the acceptability of the court’s decision was highly contingent on whether the court’s decision was congruent with the participant’s preferred outcome” and that participants were considerably more attentive to the court’s proffered reasoning when the decision conflicted with their preferred outcome.
But what I found most interesting was the study’s comparison of participants’ reactions to opinions “that provide unequivocal support for just one side of the dispute” with their reactions to opinions that “admit to the complexity and under-determinacy of the legal reasons en route to determining which of the vying positions is the stronger of the two.” More specifically, the authors found that “decisions that were accompanied by multiple two-sided reasons were rated most acceptable; decisions accompanied by multiple one-sided reasons were rated similarly acceptable to decisions that had no reasons at all; and decisions accompanied by a single reason received the lowest ratings of acceptability.” In short, participants were most likely to accept a decision as legitimate when the court acknowledged the difficulty of the underlying problem.
July 22, 2011 at 4:29 pm
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Women’s World Cup
posted by Helen Norton
Congratulations to both Japan and the United States for a fantastic final, and a terrific tournament. Wow.
July 17, 2011 at 6:04 pm
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Justice Brennan’s Change of Heart on Government Campaign Speech
posted by Helen Norton
One of my recent projects explores longstanding controversies over government speech on contested ballot and legislature campaigns – and when, if ever, such speech is sufficiently dangerous to justify a departure from the general rule that government’s own speech is insulated from free speech clause review.
Governmental speech on issue (as opposed to candidate) campaigns takes a wide variety of forms, and may be delivered by a broad range of government speakers. Examples include not only government officials’ statements and press releases critical or supportive of pending ballot or legislative measures, but also government agencies’ reports and analyses, as well as flyers, pamphlets, newsletter articles, online postings, and print and broadcast advertisements communicating their view of such measures to the public. Controversies over such expression include those over the Eisenhower Administration’s advocacy on behalf of its proposed health care legislation, state human rights agencies’ communications in support of the Equal Rights Amendment, and local school boards’ expressive support for school bond measures. Such debates still rage today: The Fourth Circuit recently considered a First Amendment challenge to a public school board’s communications to potential voters in opposition to pending school voucher legislation, and a sharply divided Sixth Circuit rejected a similar challenge to a town’s use of public funds to express its position on ballot measures related to the local fire department’s financing and organization.
Critics of government speech on issue campaigns generally voice one or both of two objections. Some urge that government should not seek to persuade the public on such matters because its status as sovereign means that its voice will inevitably coerce listeners’ beliefs. Others also (or instead) argue that government’s voice threatens to drown out or otherwise unfairly disadvantage dissenting speakers.
In writing this paper, as I have found with past projects, I seemed to stumble across the most interesting stuff while looking for something else. Justice Brennan’s change of heart on this issue is one example.
July 14, 2011 at 11:14 pm
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Government’s Racist Speech
posted by Helen Norton
This summer I finally got around to Eric Foner’s excellent Reconstruction: America’s Unfinished Revolution, which painstakingly details not only the myriad lost opportunities to address slavery’s continuing legacy in the form of race discrimination following the Civil War, but also the emerging conflicts over the appropriate division of power between federal and state governments that have yet to be fully resolved today.
Because one of my current projects deals with the equal protection implications—if any – of government speech, I was especially struck by Professor Foner’s description of President Andrew Johnson’s 1867 annual message to Congress as “probably the most blatantly racist pronouncement ever to appear in an official state paper of an American President.” In that message, Foner quotes Johnson as characterizing blacks as possessing less “capacity for government than any other race of people. No independent government of any form has ever been successful in their hands. On the contrary, wherever they have been left to their own devices they have shown a constant tendency to relapse into barbarism.”
Looking beyond Presidential speech to government speech more generally, surely there are challengers for the title of most racist government speech ever. Indeed, Foner himself later identifies a competitor: a report by a Reconstruction-era Florida state commission that “praised slavery as a ‘benign’ institution deficient only in its inadequate regulation of black sexual behavior.” Any other nominations?
To narrow the universe of eligible “government speech,” note that I’m thinking only of speech (as opposed to the government’s exercise of its coercive power – e.g., de jure segregation) by those empowered to speak for a governmental branch or other government body — such as an agency’s report, a legislature’s resolution, or an executive’s proclamation — rather than racist speech by an individual legislator or official expressing only his or her own personal views.
July 12, 2011 at 9:04 pm
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Summer Reading: Arguing About Slavery and The Lost Internment
posted by Helen Norton
Earlier this week I blogged about the Supreme Court’s recent (and rare) Petition Clause decision, and earlier still I blogged about recommended summer reading. Combining the two reminds me that one of the best books I’ve ever read on any topic deals with petitions to the government for the redress of grievances in their most classic form. Arguing About Slavery, by William Lee Miller, documents John Quincy Adams’ long and lonely fight in the 1830s and 1840s to introduce citizen petitions calling for Congress to consider the abolition of slavery within the District of Columbia. His efforts in support of the petitioners triggered proslavery members of Congress to enact a gag rule that essentially prohibited talking about the abolition of slavery on the floor of Congress (notwithstanding the petition, free speech, and speech and debate clauses). Professor Miller concludes that the proslavery forces’ overreaction to the petitions eventually strengthened the abolitionists’ hand by giving them a particularly high-profile platform for arguing about injustice as both a moral and political matter. (In A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142 (1986), Stephen Higginson later assigned this particular episode the blame for the Court’s contemporary conflation of free speech and petition clause rights – a development now bemoaned by Justice Scalia in his partial dissent to last month’s petition clause decision). For those who still have room on their summer reading lists, Miller’s book offers a great read by a terrific writer exploring an important yet largely overlooked historical episode.
While I’m thinking about important yet largely overlooked historical episodes, you might also want to check out G. Edward White’s essay in the most recent Green Bag. In The Lost Internment, Professor White narrates “one of the most bizarre and chaotic forcible relocations of indigenous peoples in American history:” the U.S. government’s internment of Aleutian islanders during World War II in response to Japan’s seizure of one of the Aleutian Islands and its anticipated plans to take more.
July 8, 2011 at 3:17 pm
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The Petition Clause Gets No Love
posted by Helen Norton
In last month’s decision in Borough of Duryea v. Guarnieri, the Supreme Court considered the relatively rare claim alleging a violation of the First Amendment’s petition clause, which protects “the right of the people . . . to petition the government for a redress of grievances.” Rather than interpret the petition clause to offer protections independent of those under the free speech clause, Justice Kennedy’s majority opinion instead conflated the two clauses in a way that deprives public employees of meaningful First Amendment rights. Interestingly, Justice Scalia’s partial dissent offers a more promising approach to protecting public employees from retaliation while recognizing governmental employers’ legitimate efficiency concerns.
The plaintiff there had filed a union grievance successfully challenging his firing as the borough’s police chief. Upon the chief’s reinstatement, the borough’s council imposed a number of directives constraining his authority in a variety of ways. Chief Guarnieri then filed suit, claiming that the council did so to retaliate against him for filing a grievance, and thus violated the petition clause. While that suit was pending, the council denied his request for $338 in overtime pay (the Department of Labor later found that he was entitled to the overtime); the chief then amended his original complaint to allege that that denial came in retaliation for his lawsuit and thus also violated his petition clause rights.
Chief Guarnieri’s disputes with the council did not appear to invoke broader matters of interest to the general public (as might have been the case, for example, had he filed charges of official corruption), and instead involved private grievances about the borough’s handling of personnel matters. Because the Supreme Court has long held that the free speech clause protects public employees’ speech only on matters of public, rather than private, concern (so long as the value of the employee’s speech outweighs any detrimental impact on the government’s efficient workplace operations — and even then only when the employee’s speech is not pursuant to her official duties), any free speech clause claim would have likely failed. Guarnieri relied instead on the petition clause.
At issue before the Supreme Court was whether the test for assessing public employees’ petition clause claims should precisely mirror that for assessing their claims under the free speech clause. In other words, should the petition clause be interpreted to protect only public employee petitions that relate to a matter of public concern (and in which the public interest in the speech outweighs the governmental employer’s interest in order and discipline), or are there any circumstances under which the petition clause protects public employees from retaliation when they submit petitions on matters of private concern?
July 5, 2011 at 8:19 pm
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Summer Reading: Last Call — The Rise and Fall of Prohibition
posted by Helen Norton
A long holiday weekend is coming up, and I just might have a beer . . . which reminds me of Daniel Okrent’s very enjoyable and illuminating Last Call: The Rise and Fall of Prohibition. It’s a terrific read, full of unlikely political alliances (e.g., the coalition that successfully pushed for Prohibition included both progressives and the Klan), new social developments (according to Okrent, only with the speakeasy’s rise during Prohibition did significant numbers of American men and women begin to drink together socially outside the home), and technological surprises (rumrunners’ operations from the Caribbean and Canada to spots off the eastern seaboard triggered the responsive growth of the Coast Guard, which in turn spurred the rumrunners to improve powerboat design in ways that remain important today).
There’s plenty here for law professors in particular. A couple of years ago I blogged about my interest in teaching a class on Beer Law to explore various beer-related cases and what they tell us about constitutional (not to mention tort, contract, and intellectual property) law. Thanks to Okrent, now I have even more to add to my draft syllabus. Recall, for example, Olmstead v. United States (Roy Olmstead was not only a lieutenant in the Seattle police department but also a very successful bootlegger), in which the Court found that the government’s wiretaps to enforce the Volstead Act did not violate the Fourth Amendment. Also fascinating is the story of the “dry” movement’s successful effort to block congressional reapportionment to lock in dry congressional majorities. Because the nation’s rural-to-urban demographic shift as documented by the 1920 Census would have meant considerably more political power for the (often very “wet”) cities, dry advocates blocked 42 separate reapportionment bills in the House for the better part of a decade before reapportionment was finally enacted in June 1929; Prohibition’s repeal was then just a few years away.
Cheers . . . .
July 1, 2011 at 12:19 pm
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CCR Symposium — Speech and (In)equality
posted by Helen Norton
Professor Citron’s Cyber Civil Rights makes several important contributions to our understanding of the relationship between speech and equality. By comprehensively documenting the use of cyberharassment to target traditionally subordinated groups so that members of such groups pay a higher price for their internet presence, she powerfully challenges the traditional narrative of the internet as a primarily egalitarian institution. She thoughtfully describes how the internet’s great communicative strengths — e.g., its ability to aggregate large numbers of speakers as well as disaggregate speakers’ offline identities from their online voices — also magnify its capacity to empower certain socially destructive behaviors. And, like both Charles Lawrence and Catharine MacKinnon in other contexts, she demonstrates how cyberharassment not only undermines equality values but also frustrates free expression by silencing certain voices.
After demonstrating the harms of cyberharassment, she then persuasively explains why the regulation of threatening or defamatory cyberspeech should pose no greater First Amendment hurdles than the regulation of threatening or defamatory speech in other settings. But, of course, those First Amendment hurdles are far from insignificant. For example, while the article suggests that much of cyberharassment fits on the “conduct” end of the “speech/conduct” divide, I’m among those who remain skeptical that such a divide is a terribly productive way to solve First Amendment problems. Rather than attempting to understand cyberharassment as conduct unprotected by the First Amendment, I would instead characterize it (along with threats, defamation, and other forms of harassment) as speech that nonetheless may be regulated when it poses substantial harms without significantly furthering traditional First Amendment values.
The article succeeds tremendously in its effort to “begin the conversation” about a cyber civil rights agenda. Like so many others, I’m very interested in what’s next. While the paper has convinced me that cyberharassment inflicts significant civil rights injuries, I don’t share its optimism that traditional civil rights statutes — such as Title VII or 42 U.S.C. section 1981 — are particularly well-suited to capture and address those harms. I was, however, fascinated by the paper’s discussion of the Violence Against Women Act’s prohibition on the use of telecommunications devices to deliver certain anonymous threats or harassment. Maybe that provision can provide a helpful model for ensuring that pending legislation (like the Matthew Shepard Act) remains attentive to the various forms that civil rights injuries can take in the 21st Century.
April 14, 2009 at 8:54 pm
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When Can Government Punish Its Employees’ Off-duty Speech to Protect Its Own Expression?
posted by Helen Norton
Last week the Nebraska Supreme Court upheld the State Patrol’s discharge of a trooper discovered to have joined the Klan — and, more specifically, to have participated in off-duty web discussions with others associated with the Klan. The state court held “that Nebraska public policy precludes an individual from being reinstated to serve as a sworn officer in a law enforcement agency if that individual’s service would severely undermine reasonable public perception that the agency is uniformly committed to the equal enforcement of the law and that each citizen of Nebraska can depend on law enforcement officers to enforce the law without regard to race.” The court addressed only whether the distrct court had correctly vacated as contrary to public policy an arbitrator’s reinstatement award, declining to “revisit the arbitrator’s discussion of constitutional issues, although his conclusions on those issues [he had found that the State Patrol had violated the trooper's constitutional rights] are highly suspect.”
But the First Amendment issues raised by cases like these deserve attention too. As I discuss in an article to be published by the Duke Law Journal this fall, this case illustrates courts’ increasing willingness to consider government workers to be speaking “as public employees” even when away from work, deferring to government’s assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views — just as voters often ascribe the views of a political candidate’s associates to the candidate himself. Implicit in courts’ reasoning is the premise that a public entity’s employment relationship with an individual who engages in certain expression — even when off-duty — communicates a substantive message to the public that the government is entitled to control. Examples include police officers discharged for appearing in or maintaining sexually explicit websites, firefighters fired for participating in a holiday parade that featured mocking racist stereotypes, and a university vice-president disciplined for writing a newspaper column questioning gay rights. In these cases, the off-duty speech was characterized as harmful not because of what it reflected about the public employee’s own ability to perform her job, but rather because of what it communicated about the government that employed her.
I agree that government concerns of this type are at times substantial — e.g., police departments’ interest in credibly communicating their commitment to evenhanded law enforcement regardless of race. But absent any limiting principle, this trend suggests that certain individuals may become unemployable for many government jobs purely because of their unpopular or controversial off-duty expression with which the government does not want to be associated – e.g., marching in a gay pride parade or blogging for or against abortion rights or immigration reform. This trend threatens to gain momentum with employers’ increasing ability to learn of workers’ off-duty speech through YouTube, Facebook and other social networking and communications technologies. While there may well be times that government should be permitted to control the off-duty speech of its workers when that speech actually imperils its own expression, attention to First Amendment values suggests such circumstances should be rare and well-examined.
In the article, I offer two proposals for determining when the First Amendment permits government to punish its workers’ off-duty speech to protect its own expression. First, the speech of certain public employees who serve as the voice and/or the face of the government — most prominently law enforcement officers — may be so identified with their government employer to justify government’s control of even their off-duty communications. Under this view, certain jobs trigger such strong public expectations such that those employees can never escape their governmental role to be perceived as speaking purely as private citizens even when off the job. To be sure, this is – or should be — a relatively small number of government jobs. This categorical framework would permit government to exert a great deal of control over the off-duty speech of employees in a few occupations, and very little control over the off-duty speech of all others.
On the other hand, rather than assuming that the off-duty speech of government employees in certain jobs – but only in those jobs – necessarily poses a substantial threat to government’s own expression, a more flexible contextual standard would instead require the government to prove such a threat on a case-by-case basis. Under this approach, an employee’s off-duty speech should be protected except in unusual circumstances where the context of the off-duty speech leads the public reasonably to associate the expression with the government — e.g., where the employee explicitly associates her off-duty speech with her government employer.
Both the categorical and contextual proposals have their strengths and weaknesses, as I discuss in the article. But while there may be no completely satisfying solution to this problem, I find both approaches preferable to the developing status quo, which is far too deferential to government’s expressive claims when seeking to control public employees’ off-duty speech.
March 10, 2009 at 8:50 pm
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The War On Terror — and the First Amendment
posted by Helen Norton
Earlier this week the Obama Administration released John Yoo’s 2001 Office of Legal Counsel memo on the use of military force to prevent or deter terrorist activity inside the United States.
To be sure, there’s a lot going on in this memo. But I want to focus for just a moment on a single remarkable sentence buried in a long discussion of how the Fourth Amendment applies to domestic military operations against terrorists: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” This assertion is followed by a string of cites and parentheticals but the authors (Yoo and OLC Special Counsel Robert Delahunty) offer no further First Amendment analysis before returning to their Fourth Amendment discussion.
Surely a conclusion with such sweeping legal and practical implications deserves more in the way of development and justification. Instead, we get something of a drive-by attack on the First Amendment.
Nearly seven years later, Stephen Bradbury (Yoo’s successor as OLC Deputy Assistant Attorney General) advised in a 2008 OLC Opinion that “caution should be exercised before relying in any respect” on the Yoo memorandum. The Bradbury memo observes, among other things, that the Yoo memo’s First Amendment remarks “were unnecessary to the opinion, are overbroad and general, and are not sufficiently grounded in the particular circumstances of a concrete scenario, and therefore cannot be viewed as authoritative.”
(hat tip to First Amendment Law Prof blog)
March 4, 2009 at 7:24 pm
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Location, Location, Location
posted by Helen Norton
Several recent legal news stories illustrate the intuition that entities’ (or individuals’) physical proximity to each other, without more, sends powerful messages.
For example, the Associated Press reports that Justice Stevens refuses to attend any swearings-in of justices at the White House because he views the ceremony’s mere physical location at a supposedly co-equal branch of government as signalling a lack of judicial independence. Similarly, the Foreign Intelligence Surveillance Court, according to the Washington Post, is moving to a new building of its own — in part because of concerns that the court’s physical location at the Department of Justice might communicate an inappropriate deference to the executive branch it is supposed to oversee.
Is Justice Stevens over-reacting? Probably not. Social science confirms that onlookers are often quick to draw significant conclusions based on individuals’ physical location with respect to others, as I’ve blogged elsewhere. For example, social psychologists have found that observers often form negative impressions of an individual who is simply seen near a person perceived as stigmatized. Observers rated job applicants who were viewed while seated next to an overweight person more negatively than those viewed while seated next to a person of average size. (Physical proximity alone was sufficient to create and reinforce negative associations, as those negative perceptions retained their hold even when the observers were instructed that the individuals seated next to each other did not know each other.)
March 2, 2009 at 8:15 pm
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Government’s Monumental Speech
posted by Helen Norton
Yesterday a unanimous Supreme Court ruled that a city did not violate the First Amendment’s free speech clause when it rejected a religious organization’s request to erect a monument commemorating the “Seven Aphorisms of Summum” (a series of statements that Summum adherents believe that God gave to Moses) in a city park that already featured a number of monuments, including a Ten Commandments monument donated to the city by the Fraternal Order of the Eagles.
Among the issues presented by this case was whether the city can claim its choice of monuments as its own expression – i.e., as government speech. In past cases, the Court has made clear that government’s own speech is “exempt from First Amendment scrutiny,” leaving the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf. Those unhappy with their government’s expressive choices can appropriately seek redress through political accountability measures — like lobbying the government to change its position or voting for new government decisionmakers — rather than through First Amendment litigation.
Writing for eight members of the Court, Justice Alito concluded that “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. . . . Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture. The monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.”
But this still leaves the question of how courts should, as a general matter, decide whether contested speech is actually the government’s. For this reason Justice Souter separately concurred to express his “qualms” about “accepting the position that public monuments are government speech categorically” and urged the Court to “go slow” in defining the bounds of government speech. Cautioning against a per se approach to government speech disputes, he suggested that courts should instead ask “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech . . . .”
In an article in last year’s Boston University Law Review, I proposed a test that seeks to address the concerns of Justice Souter (and others) about an uncabined and undertheorized approach to goverment speech. I urge that a public entity seeking to claim the government speech defense should establish that the contested expression is governmental in origin both formally (i.e., that the government claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government’s at the time of its delivery). This approach identifies two points at which government must expose its expressive choices to the public — when it decides to express a certain idea and when it actually communicates that idea — and thus seeks to maximize prospects that members of the public will have the information necessary to hold their government accountable for its expressive choices if they so desire.
Under this framework, I agree that the city’s choice of monuments should be considered its own speech. Like other speakers, government may use its own property for its own expressive purposes and, indeed, such choices provide valuable information to the public about its government’s values. The city can — and, in my opinion, did — claim the speech as its own when it transparently took ownership of certain monuments and selected them for permanent display in its own park (the respondent urged that the city be required to enact an official resolution publicly adopting “the message” to be conveyed by its monuments; while I agree that this is especially transparent, I do not agree that this is the only means by which the city may claim speech as its own in a way that facilitates political accountability). And absent express indications to the contrary, onlookers generally understand a message to spring from the owner of the property on which it appears. For this reason, a city’s choice to honor Robert E. Lee but not Ulysses Grant in a city park remains transparently governmental expression, as does a mayor’s decision to display only art advocating racial equality for its observance of Dr. King’s birthday.
Note, however, that constitutional constraints other than the free speech clause may still limit governmental speech. For this reason, even if a government’s choice of monuments is government speech exempt from free speech clause scrutiny, that government may run afoul of the establishment clause if it uses its speech to celebrate majority but not minority religions. (The Summum plaintiffs, however, did not allege a federal establishment clause violation in their complaint.)
February 26, 2009 at 12:43 pm
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Half Full or Half Empty?
posted by Helen Norton
Fed Chair Ben Bernanke testified before Congress today on the state of the economy. Striking a tone alternatively grim and hopeful, his testimony posed challenges for those required to sum things up in a pithy takeaway. Whether 2010 is a long time to wait for a recovery thus depends on whom you ask: The New York Times leads gloomily with “Fed Chief Says Recovery May Wait Until 2010 Or Later” while the comparatively cheery Washington Post reports that “The U.S. recession could end this year, paving the way for a ‘year of recovery’ in 2010.”
February 24, 2009 at 4:12 pm
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The End of Lawyers?
posted by Helen Norton
Or so says British lawyer and technology constultant Richard Susskind, whose new book “The End of Lawyers? Rethinking the Nature of Legal Services” is summarized by globeandmail.com as follows:
“In Mr. Susskind’s vision of the future, small law firms that dispense customized legal advice will be pushed out of business by technology-savvy and more nimble firms that dispense run-of-the-mill advice and legal documents through websites. Larger law firms will evolve into commercial enterprises with vast stables of legal, accounting and other experts geared to preventing and managing clients’ legal risks. These big firms will outsource basic legal services to cheaper quasi-legal experts and they will build retail kiosks or websites that allow clients to download regulatory expertise and draft legal documents any hour of the day.”
Seems this is already happening, at least in the U.S.
(hat tip to Laura Spitz)
February 19, 2009 at 12:47 pm
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The Gift That Keeps On Giving
posted by Helen Norton
For those teaching Constitutional Law this semester, then-Governor Blagojevich’s Senate appointment of Roland Burris is a gift that keeps on giving (for Illinois citizens, not so much). The Washington Post is reporting that Senator Burris “has acknowledged trying to raise money for ousted Gov. Rod Blagojevich before being appointed to the Senate. According to a transcript posted on the Chicago Tribune’s Web site, Burris told reporters Monday night in Peoria that after the ex-governor’s brother called him, he talked to some friends about putting together a fundraiser.”
This offers a terrific opportunity to introduce students to the Constitution’s little-discussed Article I, section 5, clause 2, which provides simply that each House may “with the Concurrence of two thirds, expel a Member.” So long as two thirds of the Senate were to agree, expulsion could be premised on any reason — including, but not limited to, suspicion of a quid pro quo for the Senate seat — or even no reason at all, since the Constitution does not delineate permissible justifications for expulsion. In other words, members of Congress serve at the will of their colleagues –protected only by the supermajority’s extremely high political bar.
The more contentious constitutional question remains whether the Senate could have refused to seat Burris as an initial matter, citing the provision that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.” For a reminder of some of the arguments pro and con, see here, here, and here.
February 17, 2009 at 4:21 pm
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After A-Rod, When (If Ever) Are Assurances of Confidentiality Credible?
posted by Helen Norton
I recently received a request from a reputable institution to participate in a survey on a range of education issues. I generally try to support such efforts, so I began to work my way through the survey. At the outset, the survey form asked for my name and affiliation so they could check me off the list — but assured me that my identity and institutional affiliation would be “maintained in confidence,” that any publication of data from the survey would be “conducted in such a way as to protect the confidentiality” of my identity and affiliation, and that the “results from this survey will be used solely for academic research purposes.”
Up until a few days ago, I wouldn’t have given this a second thought. And, in fact, I went ahead and completed the survey because its subject matter was far from sensitive and I have no reason to doubt the sincerity of the surveying institution — but not because I thought the confidentiality promises were particularly meaningful. The leaked results of Alex Rodriguez’s supposedly confidential drug tests now make me wonder whether any such assurances of confidentiality are worth the ink (or breath) it takes to communicate them. In 2003, Major League Baseball tested its players for performance-enhancing drugs, but promised them that the results would be kept not only confidential but also anonymous (i.e., that test samples would not be associated with players’ names) and that the program’s objective was solely to assess whether the number of players using performance-enhancing drugs exceeded a certain threshold. (if the number of positive test results exceeded 5% of those tested — and it did — then a full testing program with penalties for positive results would be implemented in 2004 — and it was). But the Rodriguez experience shows that there’s not much a trusting test-taker (or survey-completer) can do to enforce such blithe assurances of confidentiality– and even less once the results have actually been leaked.
(Don’t get me wrong — I’m not feeling terribly sorry for A-Rod. Having grown up in Seattle, I’m a fervent Mariners’ fan who remains bitter that Rodriguez (and many other great players) left before we could get to the World Series. If you’ve been following professional sports recently, you have a general idea of just how poorly Seattle sports fans are feeling these days; last year the Mariners lost over 100 games, the Seahawks finished 4-12, and the Sonics . . . .oh, wait, Seattle doesn’t have a professional basketball team any more).
February 10, 2009 at 2:23 pm
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Gender and Pay
posted by Helen Norton
Pay discrimination concerns have recently generated a flurry of legislative activity. The new Congress quickly passed the Lilly Ledbetter Fair Pay Act, while the Paycheck Fairness Act awaits Senate consideration after House approval. Not everybody, however, is convinced of the need for such legisation, as a study commissioned by the Bush Administration’s Department of Labor (and released days before President Obama’s Inauguration) repeated the contention that pay differentials are primarily the result of gender-based differences in investments in human capital development — e.g., that women on average are more likely than men to choose careers that maximize flexibility in accommodating family caregiving responsibilities at the expense of employment hours and advancement.
But this reminded me of a remarkable study released last year that examined the wages of transgender people – individuals who change their gender, typically with hormone therapy and surgery – to learn more about the relationship between gender and workplace experience while holding human capital investments constant. The authors found that workers who transitioned from male to female (MTFs) experienced “significant losses in hourly earnings,” while those who transitioned from female to male (FTMs) experienced “no change in earnings or small positive increases in earnings from becoming men.”
More specifically, authors Kristen Schilt and Matthew Wiswall concluded “that while transgender people have the same human capital after their transitions, their workplace experiences often change radically. We estimate that average earnings for female-to-male transgender workers increase slightly following their gender transitions, while average earnings for male-to-female transgender workers fall by nearly 1/3. . . .These findings suggest that regardless of childhood gender socialization and prior human capital accumulation, becoming women for MTFs creates a workplace penalty that FTMs do not generally encounter when they become men. And, while MTFs may benefit from being men at work before their gender change, they cannot always take this gender advantage with them into womanhood. We view these findings as evidence that the gender gap in workplace outcomes does not entirely reflect omitted variables, such as unobserved human capital. Rather, the change in posttransition MTFs’ earnings suggests that the labor market is not gender neutral.”
February 9, 2009 at 8:27 pm
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Obama v. Cognitive Bias
posted by Helen Norton
The New York Times recently reported on a study “showing that a performance gap between African-Americans and whites on a 20-question test administered before Mr. Obama’s nomination all but disappeared when the exam was administered after his acceptance speech and again after the presidential election.”
Earlier researchers had “assembled university students with identical SAT scores and administered tests to them, discovering that blacks performed significantly poorer when asked at the start to fill out a form identifying themselves by race. The researchers attributed those results to anxiety that caused them to tighten up during exams in which they risked confirming a racial stereotype.” Reviewers of the new study theorized that “Obama’s election could increase the sense of competence among African-Americans, and it could reduce the anxiety associated with taking difficult test questions.”
This reminded me of an earlier study that found that individuals’ implict biases shift significantly when they are immersed in situations that provide frequent exposure to admired members of traditionally stigmatized groups (e.g., famous African Americans or older people) and disliked members of traditionally valued groups (e.g.,infamous whites or younger people).
This involved use of the Implicit Association Test (IAT), which uses an individual test-taker’s response speed to assess the relative strength with which he or she associates certain targets with positive or negative attributes. For example, participants are typically asked to “classify stimuli representing two target concepts (e.g., flowers and insects, or Black and White groups) and evaluative attributes (e.g., good and bad words) using two designated keys. When the IAT is used to measure racial attitudes, people typically respond more quickly and easily if pleasant attributes share the same response key with White racial stimuli and unpleasant attributes share the same key with Black racial stimuli than vice versa.”
But the authors found that test-takers whose initial performance indicated a tendency to associate black targets with negative attributes (and a tendency to associate white targets with positive evaluations) displayed significant less implict bias of that sort after repeated exposure to pictures of admired African Americans (e.g., Dr, King) and disliked whites (e.g., Jeffrey Dahmer). Similarly, the authors found that test-takers’ automatic preference for younger over older people declined after encountering images of admired older and disliked younger individuals.
Together, these studies make me wonder about the effects we might expect now that pictures of President Obama are prominently displayed throughout the media as well as in government offices throughout the country . . .
February 4, 2009 at 8:50 pm
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Speech at Work
posted by Helen Norton
I’m interested, among other things, in the relationship between speech and equality. The Supreme Court recently grappled with this relationship in the workplace context in Crawford v. Metropolitan Gov’t of Nashville. There the Court considered the scope of Title VII’s antiretaliation protections, which (among other things) bar employers from discriminating against workers who have “opposed” an illegally discriminatory practice. The Court held that workers engage in protected “opposition” not only when they challlenge job discrimination on their own initiative, but also when they respond to questions during an employer’s internal investigation.
Here, the defendant employer asked the plaintiff whether she had witnessed a particular manager engage in any inappropriate conduct, only to fire her after she described several incidents of sexually harassing behavior by the supervisor in question. Rejecting the Sixth Circuit’s view that the statutory meaning of “opposition” refers only to “active, consistent” resistance initiated by the plaintiff, a unanimous Court held that the term also encompasses a plaintiff who simply discloses her views in response to an employer’s prompt. The Court explained its decision as consistent not only with the plain meaning of the statutory language, but also with the antiretaliation clause’s objective of remedying and preventing job discrimination by protecting employees who identify and challenge workplace bias (citing Debbie Brake’s excellent article on employees’ legitimate fears of retaliation).
So far, so good. But what struck me as most interesting — and potentially most troubling — was the concurring opinion filed by Justice Alito and joined by Justice Thomas. They wrote separately to emphasize their understanding “that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct.” Justice Alito emphasized his fear fhat the Court’s decision would “open the door to retaliation claims by employees who never expressed a word of opposition to their employers” — for example, an employee who “expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker” or in a conversation “after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor.”
But why shouldn’t such speech be protected (assuming that the plaintiff can meet her burden of proving causation: that her employer punished her because of her private opposition)? Workers’ conversations with their colleagues, friends, and family — both at work and away from it — often offer the best opportunity to share information about and test perceptions of possible discrimination, consider options, and gather courage in figuring out what to do about the problem. Indeed, such speech furthers the goals of Title VII’s antiretaliation protections by encouraging employee efforts to identify, address, and deter discriminatory behavior. Justice Alito doesn’t explain his reasoning, other than to note his concern about “the increasing number of retaliation cases filed with the EEOC” in recent years. But this strikes me as an area in which protecting a broader swath of employee speech is key to ensuring workplace equality.
February 2, 2009 at 6:16 pm
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