Terrorists Are Always Muslim but Never White: At the Intersection of Critical Race Theory and Propaganda

When you hear the word “terrorist,” who do you picture? Chances are, it is not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on preexisting false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II then analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Next, Part III examines how these narratives simultaneously enable and constitute propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security

Religious Liberty in a Pandemic

The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans

Emotional Compelled Disclosures

This short Essay is a response to Rebecca Tushnet’s More Than a Feeling: Emotion and the First Amendment, 127 Harvard Law Review 2392 (2014), which argues that emotional compelled disclosures -- whether they be graphic cigarette warnings depicting the gruesome consequences of smoking or abortion counseling detailing the state’s moral view on abortion -- are fine as long as they are accurate and nonmisleading. After agreeing that emotion and reason are inextricably linked, and therefore government compelled disclosures that provoke emotional responses are not automatically suspect, the essay discusses some of the limits of Tushnet’s thesis. First, it defines deception too narrowly and overlooks that you can deceive and mislead with emotion as well as with facts. Second, if deceptive compelled speech triggers concern because it fails to respect the autonomy of its audience, then the government’s goals, and not just its means, merit examination. Finally, a complete analysis of compelled disclosures must also consider the autonomy of the compelled speaker. Nonetheless, the Essay concludes that Tushnet’s insistence that we recalibrate our skepticism to focus more on deception and less on emotion might have prevented one of the most puzzling aspects of these compelled speech cases, which is the way the courts have transformed the facts of smoking into ideology, and the ideology of abortion into facts

Nonbelievers and Government Speech

In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination. This Article argues that government religious speech such as In God We Trust or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the main goals of the Establishment Clause is to protect religious minorities like nonbelievers. Contrary to claims that government religious speech is essentially harmless and that any offense it causes should not be considered of constitutional dimension, government religious speech harms both the equality and liberty of nonbelievers. It undermines the equality of nonbelievers by sending the message that they are not worthy of equal regard and by reinforcing stereotypes-in particular, that atheists are immoral and unpatriotic-which leads to discrimination against them. The perpetuation of these stereotypes also undermines the liberty of nonbelievers by making them less willing, or even afraid, to follow the dictates of their conscience. In short, the claim that government religious speech does not violate the Establishment Clause because it only offends nonbelievers misunderstands exactly what is at stake

Corporate Religious Liberty

Part of Symposium: Money, Politics, Corporations & the Constitutio

A Free Speech Tale of Two County Clerk Refusals

The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them to speak in favor of same-sex marriage in violation of the Free Speech Clause. When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee\u27s conduct is the government\u27s, then it amounts to state action, and the Equal Protection Clause is triggered Part H addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government\u27s own, her individual free speech interests are at their lowest while the government\u27s equal protection interests are at their highest. Part III addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms

Commentary: Exploiting Mixed Speech

The Supreme Court has been taking advantage of mixed speech—that is, speech that is both private and governmental—to characterize challenged speech in a way that ultimately permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms monument, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case where the local government invited overwhelmingly Christian clergy to give a prayer before town meetings, the Court found no Establishment Clause violation in part by attributing constitutionally troubling aspects of the speech to the private speakers rather than to the government

A Free Speech Tale of Two County Clerk Refusals

The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them to speak in favor of same-sex marriage in violation of the Free Speech Clause. When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee\u27s conduct is the government\u27s, then it amounts to state action, and the Equal Protection Clause is triggered Part H addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government\u27s own, her individual free speech interests are at their lowest while the government\u27s equal protection interests are at their highest. Part III addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms

Government Employee Religion

Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other