Of Crosses and Confederate Monuments: A Theory of Unconstitutional Government Speech

This Article uses controversies over government-sponsored religious symbols and Confederate monuments to consider the appropriate constitutional limits on the government’s symbolic expression. It contrasts two types of constitutional harm that can arise from the government’s expressive acts. “Expressions that harm” refers to denigrating or exclusionary government speech that causes material harm to members of the community. “Expressive wrongs” describes constitutional violations that arise when a government action conveys an improper social meaning. The government’s symbolic speech can and should be subject to constitutional review under either theory.

The Supreme Court has been increasingly hesitant to impose substantive constraints on the government’s speech, however. Recently, the Court decided American Legion v. American Humanist Association, holding that a 40-foot-tall Latin cross in Bladensburg, Maryland, does not violate the Establishment Clause. It further held that long-standing government-sponsored religious symbols enjoy a presumption of constitutionality.

This Article critiques American Legion and asks what it portends for potential equal protection challenges to Confederate iconography. It argues that even as the Court is hesitant to impose substantive restrictions on the government’s symbolic speech, the Court should be attentive to the dangers of majoritarian control of the public square. The Article describes three such dangers: entrenchment, favoritism, and domination. Government symbolic speech that is a product of, or results in, the entrenchment of permanent symbolic majorities, that favors some private speakers over others, or that is imposed by one political community on another, should be constitutionally troubling. The Article applies these minimal conditions for legitimate government speech to current debates about religious symbols and Confederate monuments.