Faculty Publications

Thirty years ago, the Supreme Court created the government speech doctrine to protect certain forms of government action against First Amendment challenges. The government must speak to govern, the thinking goes, and the First Amendment regulates private rather than governmental speech. Therefore, government action that is classified as “government speech” should not be vulnerable to free-speech claims. The doctrine has since been used accordingly, vaccinating certain government programs against the First Amendment. For example, the doctrine has insulated regulations banning federally-funded medical providers from counseling patients about abortion; advertising campaigns spearheaded by the federal government; state-level choices about which specialty license plates to approve; and municipal decisions about which privately-funded statues to install in public parks. The doctrine now features in dozens of decisions in federal and state courts, and it continues to be deployed by the Court in decisions as recently as this past May.

The United States has failed to eliminate racial discrimination in the decades since ratifying the international human rights treaty that prohibits it. To its credit, the Biden Administration has attempted to center the fight for racial equity in the work of the executive branch. But President Biden’s executive orders and agency action plans on racial justice omit any reference to the International Convention on the Elimination of All Forms of Racial Discrimination, despite the duties and standards it establishes in the fight to end pervasive racism. As President Biden enters the final two years of his term, facing a legislature hamstrung by partisan divide, the time is ripe for decisive executive action to implement the treaty. Writing against a background of governmental and scholarly neglect of the duty to implement even non-self-executing human rights treaties, this Essay proposes several novel strategies the Administration could pursue. Decisive action on racial justice that honors United States treaty obligations would set an important precedent and leverage the utility of international standards for remedying human rights violations in the United States.

Despite the ever-growing number of exonerations in the U.S.— and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this essay, we draw on in-depth interviews with 15 exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We argue that imprisonment entails what we refer to as “coerced moral degradation,” whereby innocent men’s self-preservation efforts in prison require them to feign being—and at times actually become— morally worse people. We argue that these findings speak to the fundamental question of what the law is for, and, further, that the coerced moral degradation that the men experienced in prison provides a compelling basis for conservative and progressive scholars to find some common ground on the moral purpose of the law.