By Evan Mahon

On January 26, 2023, over 100 Colorado Law students, staff, and faculty members flooded a classroom in the Wolf Law building to discuss one of the most prominent topics in today’s legal world: LGBTQ+ rights. The event was co-sponsored by OUTlaw and the Byron R. White Center for American Constitutional Law.

The conversation centered around Professor , who serves as special counsel as part of the Colorado Attorney General’s team in . Professor Norton is a University Distinguished Professor and the Rothgerber Chair in Constitutional Law. Her scholarly and teaching interests include constitutional law and civil rights law. Professor and 2L Evan Mahon moderated the discussion and student Q&A. Professor Skinner-Thompson is an Associate Professor whose research and teaching interests center around constitutional law, civil rights, and privacy law, with a particular focus on LGBTQ+ and HIV issues. Mahon currently serves as President of the LGBTQ+ student group, OUTlaw.

303 Creative is a case centered around a Colorado-based website design company claiming that state antidiscrimination law would violate its free speech rights if it were required to make wedding websites for same-sex marriages if it makes wedding websites for opposite-sex marriages. The website designer challenged Colorado anti-discrimination state laws which prevent public businesses from discriminating against gay people, as well as making statements in that same realm. The State of Colorado argued for the constitutionality of the Colorado Anti-Discrimination Act and prevailed at both the U.S. District Court for the District of Colorado and the Tenth Circuit. were held at the U.S. Supreme Court on December 5, 2022 with a decision expected around mid-June 2023. 

Over 100 individuals took part in the discussion with Professor Norton, Professor Scott Skinner-Thompson, and Mahon about the far-reaching implications of a ruling in favor of the website designer. When asked about what impact this decision could have on anti-discrimination laws, Professor Norton replied, “Well, the title of this event, LGBTQ Rights at the Supreme Court, is almost too narrow. The outer limits of this decision are unknown. It can potentially impact other matters covered under anti-discrimination laws.” In response to the attendants’ great interest, Professor Norton also shared about her experience litigating and sitting at the counsel table in the highest court in the United States.

During the Q&A, students asked how this decision intersects with privacy laws, about SCOTUS precedent established prior to the case, the Colorado law in question, and the implications of this decision on a local and national level.

When asked about the importance of events such as these, Mahon responded that,

“It is through educating one another about crucial social issues and finding unity in fighting these fights that we can build community and camaraderie. We must be conscious of the footprints we leave behind, as well as the steps that have been paved by those before us.”

OUTlaw provides professional, social, and academic support for LGBTQ+ (lesbian, gay, bisexual, transgender, and queer) law students and their straight/cisgender allies.

The work of the Byron R. White Center is premised on the belief that an informed and engaged community is essential to Constitutional democracy. The mission of the Byron R. White Center is to: support excellence in Constitutional legal scholarship; offer opportunities for Colorado Law students to promote justice; and expand public knowledge and informed discussion about the Constitution. The Byron R. White Center is ran under the guidance of Professor Suzette Malveaux (Moses Lasky Professor of Law and Director of the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School)

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Scholars will discuss the ideas explored in University of Colorado Law School Professor Helen Norton's recent book, The Government’s Speech and the Constitution, at the University of Illinois Law Review Symposium on April 16. The symposium aims to influence the conversation about the important yet underexplored constitutional implications of the government’s speech for years to come. Contributors include Erwin Chemerinsky, Danielle Keats Citron, Kate Shaw, Michael Kang, William Araiza, Alex Tsesis, Mary-Rose Papandrea, Wendy Parmet, Claudia Haupt, Ciara Torres-Spelliscy, Jacob Eisler, and Clifford Rosky.

Symposium Description

The government’s speech is inevitable and often constitutionally valuable: even at its most infuriating, the government’s speech informs the public about its government’s principles and priorities, providing us with important information that helps us evaluate our government. The Supreme Court has thus appropriately recognized that the Free Speech Clause generally does not bar the government’s ability to express its own views when doing the government’s work.

But as the government’s expressive capacities grow, so too does the potential for undermining others’ speech and distorting public discourse. Indeed, the government is unique among speakers because of its coercive power as sovereign, its considerable resources, its privileged access to key information, and its wide variety of speaking roles as policymaker, commander-in-chief, employer, educator, health care provider, property owner, and more. Yet, as Helen Norton suggests in her recent book on “The Government’s Speech and the Constitution,” the Court’s government speech doctrine to date remains dangerously incomplete in its failure to wrestle with the ways in which the government’s speech sometimes affirmatively threatens specific constitutional values.

When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. This Symposium will engage a variety of questions explored in Norton’s book: When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government’s expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us?

Agenda
(all times Central Time)
 
10:00-10:05: Welcoming Remarks
Vikram D. Amar, University of Illinois College of Law

10:05-10:15: Opening Keynote
Helen Norton, University of Colorado Law School

10:15-11:20: Panel I
Panelists
Claudia E. Haupt and Wendy E. Parmet, Northeastern University School of Law
Kate Shaw, Cardozo School of Law
Danielle K. Citron, University of Virginia School of Law
Moderator
Jason Mazzone, University of Illinois College of Law

11:20-11:30: Break

11:30-12:50: Panel II
Panelists
William Araiza, Brooklyn Law School
Mary-Rose Papandrea, UNC School of Law
Clifford Rosky, University of Utah S.J. Quinney College of Law
Alexander Tsesis, Loyola University Chicago School of Law
Moderator
Jason Mazzone, University of Illinois College of Law

12:50-13:00: Break

13:00-14:00: Panel III
Panelists
Erwin Chemerinsky, UC Berkeley School of Law
Michael S. Kang, Northwestern Pritzker School of Law, and Jacob Eisler, University of Southampton Law School
Ciara Torres-Spelliscy, Stetson University College of Law
Moderator
Jason Mazzone, University of Illinois College of Law

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The University of Colorado Law School is pleased to announce that Professor Helen Norton will deliver the Norton will speak on "The Government’s Speech and the Constitution" on Tuesday, Dec. 3 at 5:30 p.m. in Wittemyer Courtroom. The Scott Lecture is presented annually by a member of the faculty engaged in a significant scholarly project selected by the dean.

Drawing on her new book, The Government’s Speech and the Constitution, published by Cambridge University Press, Norton will discuss the uses and abuses of the government’s expressive powers through the lens of constitutional law.

Governments must speak in order to govern, and so governments have been speaking for as long as there have been governments--from early proclamations and simple pamphlets, to the electronic media of radio and television, and ultimately to today’s digital age, Norton explains. When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? And under what circumstances does the Constitution prohibit our government from lying to us? Norton will discuss how the government’s speech has changed the world for better and for worse, and why the government’s speech deserves our attention—and at times our concern.

This event is approved for one general CLE credit.

When: Tuesday, Dec. 3, 5:30 p.m.
Where: Wittemyer Courtroom, University of Colorado Law School
Cost: Free

Registration is not required to attend the lecture.

If you have any questions about this event, please contact lawevents@colorado.edu or (303) 492-8048.

The Austin W. Scott Jr. lecture is named for Austin Scott, a member of the law school faculty for 20 years. He was a beloved teacher as well as a prolific writer. His scholarly work was in the fields of criminal law and procedure. In 1973, former Colorado Law Dean Don W. Sears established the lecture series in his memory. Each year, the dean of the law school selects a member of the faculty engaged in a significant scholarly project to lecture on his or her research.

about the Austin W. Scott Jr. Lecture.

More about Helen Norton

Professor , who holds the Ira C. Rothgerber Jr. Chair in Constitutional Law, focuses her teaching and scholarship on constitutional and civil rights law. Before entering academia, she served as deputy assistant attorney general for civil rights at the U.S. Department of Justice during the Clinton administration. Her constitutional law scholarship has appeared in the Duke Law Journal, Northwestern University Law Review, Stanford Law Review Online, and the Supreme Court Review, among other journals.

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"At its core, constitutional law addresses the uses and abuses of government power. This includes the uses and abuses of the government’s expressive powers," Norton said. "When we see or hear the terms 'government' and 'speech' in close proximity, we often think of the constitutional issues triggered when the government regulates our expression. In this book I focus on the constitutional issues raised when the government itself is doing the talking."

"When we see or hear the terms 'government' and 'speech' in close proximity, we often think of the constitutional issues triggered when the government regulates our expression. In this book I focus on the constitutional issues raised when the government itself is doing the talking."

Professor Helen Norton

Norton, who holds the Rothgerber Chair in Constitutional Law at Colorado Law, focuses her teaching and scholarship on constitutional and civil rights law. Before entering academia, she served as deputy assistant attorney general for civil rights at the U.S. Department of Justice during the Clinton administration. Her constitutional law scholarship has appeared in the Duke Law Journal, Northwestern University Law Review, Stanford Law Review Online, and the Supreme Court Review, among other journals.

Q: First, let’s start with a definition. How do you define government speech?

When I talk about the government’s speech, I’m referring to the speech of a governmental body like an agency or congressional committee (think of the surgeon general’s report on the dangers of tobacco) as well as the speech of an individual who speaks when backed by the government’s power (like the attorney general announcing official policy or a police officer interrogating a suspect).

Q: How is speech by the government different from when anyone else speaks?

The government is unique among speakers because of its coercive power, its enormous resources, its often privileged access to key information, and its wide variety of expressive roles. The government speaks not only as sovereign, but also as employer, as educator, as property owner, as commander-in-chief, and in many other roles. For all these reasons, the government’s speech has unusual potential for great value as well as great harm.

Q: Why does the government’s speech deserve our attention right now?

The government’s speech can serve, or instead threaten, democracy. We need to empower our government to operate effectively to serve and protect us, even while we need to limit its power to harm us. Think of governmental threats that silence dissenters as effectively as jailing them, or governmental lies that pressure their targets into abandoning their constitutional rights as effectively as denying those rights outright. These concerns are as important now as they’ve ever been.

Q: Are there ever instances when the government can lie to its citizens? Under what circumstances?

The government’s lies, like our own, can be complicated. Sometimes the government tells lies in hopes of achieving important public objectives: think of undercover police officers’ falsehoods about their identities, which are told to discover and stop wrongdoing. But of course, the government’s lies sometimes inflict devastating injuries—for example, when the government lies to the public to avoid legal or political accountability or to justify certain military actions. This requires us to wrestle with hard questions about when we can effectively challenge those lies through constitutional litigation and when we must instead rely solely on political action like protesting and voting.

Q: You’ve written extensively about free speech as it relates to artificial intelligence, employers, and the government. What inspired you to write this book about government speech?

I’ve worked for the government myself when I helped lead the Department of Justice’s Civil Rights Division during the Clinton administration, so I have some experience with the challenges and benefits that come with speaking for the government. After I entered academia, my early work in this area focused on the value and importance of the government’s speech so long as its governmental source is made clear to the public. As the years passed, I also became interested in the dark side of the government’s speech—in other words, the government’s destructive expressive choices. This led me to wonder whether and when the Constitution limits the government’s speech. This book represents my efforts to describe and analyze the tensions between these two sides of the government speech coin.

Q: How has writing the book influenced your future scholarship?

Thinking about the constitutional rules that apply, or should apply, to the government’s speech invites lots of important and challenging questions both about the nature of speech and the nature of government. It requires us to expose our views about how government does and should work, and our views about how speech does and should work. What value does the government’s speech offer, what dangers does the government’s speech threaten—and does the Constitution protect us from those dangers? These are questions that I’ll continue to explore.

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, professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law, will present her paper, "Discrimination and the Speech That Enables It," at an Oct. 25 symposium at the University of Chicago titled "What’s the Harm? The Future of the First Amendment."

An abstract of the paper is as follows:

"Speech sometimes enables illegal discrimination. Think, for example, of an employer’s or landlord’s statement that 'Whites Only Need Apply.' Or an employer’s harassing speech that creates a hostile workplace environment, thus changing the terms and conditions of employment in discriminatory ways. Or employers who ask about candidates’ pregnancy, religion, or disability; landlords who ask about prospective tenants’ sexual orientation or marital status; and health insurers who ask about applicants’ genetic history.

This paper examines how the antiregulatory turn in the Court’s contemporary free speech doctrine threatens legislatures’ constitutional power to address stubborn equality problems. Consider, more specifically, the many federal, state, and local antidiscrimination laws that not only prohibit employers, insurers, lenders, and other decisionmakers from considering certain characteristics when making decisions about important life opportunities but also go on to regulate those decisionmakers’ speech by prohibiting them from inquiring about applicants’ protected class status. These provisions aim to discourage illegal discrimination on the front end by preventing decisionmakers from asking questions eliciting information that would enable them to discriminate. Although the First Amendment implications of these provisions have received little attention to date, these laws are now increasingly under constitutional attack from corporate and other commercial entities that seek -- with growing success -- to insulate their speech from regulation.

This paper explains how the government’s regulation of speech that informs or otherwise facilitates the speaker’s discriminatory conduct can further both equality and free speech values. It identifies the relationship between an antisubordination understanding of certain equality law questions and a listener-centered approach to certain First Amendment questions: both attend to asymmetries of information and power in justifying legislatures’ efforts, both longstanding and new, to address important problems of inequality. It thus offers theoretical and doctrinal explanations for how and why the First Amendment sometimes permits the government to regulate decisionmakers’ speech that enables illegal discrimination."

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