Abridging the Freedom of Non-English Speech: English-Only Legislation and the Free Speech Rights of Government Employees
Robertson, Margaret, Brigham Young University Law Review
A multitude of commentators has spoken against and written both articles and books condemning official-English and English-- only1 legislation as unwise,2 unconstitutional,3 racist,4 and divisive.5 Yet, even though few commentators support the constitutionality of English-only statutes,6 such legislation is on the rise, mostly through
the ballot initiative process. "U.S. English," the Washington D.C.-- based sponsor of these laws,7 has gone from state to state collecting enough signatures to place English-only initiatives on state ballots. That scenario repeated itself in Utah in the November 2000 election. After the Utah state legislature refused to pass English-only statutes in 1997 and 1999,(8) "U.S. English" spent "hundreds of thousands of dollars" to get the measure on the Utah ballot in 2000.(9) The English-only initiative passed by approximately seventy percent.10 Alaska, in 1998, similarly passed a very restrictive English-only initiative.11
In the 1988 election, Arizona passed an English-only initiative amendment to the Arizona Constitution, similar in wording and in scope to the Utah and Alaska initiatives.12 The Arizona Amendment declared that English was the "language of the ballot, the public schools and all government functions and actions."13 The amendment required that unless one of the few enumerated exceptions applied, "[t]his State and all political subdivisions of this State shall act in English and in no other language."14 This prohibition on nonEnglish languages applied to "all government officials and employees during the performance of government business."15
Arizona's amendment was universally recognized as "by far the most restrictively worded official-English law to date."16 The
amendment was declared unconstitutional: first by a federal district court," then by the Ninth Circuit,18 and finally in 1998 by the Arizona Supreme Court.19 All three courts found the amendment unconstitutional under the First Amendment as an abridgment of free speech.
In contrast, many, and perhaps most, commentators who have argued that English-only statutes are unconstitutional have relied primarily on the Equal Protection Clause.20 Some have criticized the Ninth Circuit and Arizona courts for resting their English-only
analysis on the First Amendment, stating that the courts should have invoked the Equal Protection Clause, rather than "dressing an equal protection analysis in First Amendment clothes."21 In spite of these criticisms, there are some good reasons for the courts to have avoided the Equal Protection Clause.
First, under the Equal Protection Clause, a statute will likely be upheld as constitutional unless strict or intermediate scrutiny applies, neither of which is likely in the English-only context.22 Second, courts may be wary of creating an affirmative fundamental right to government services in a foreign language under the Equal Protection Clause.23 First Amendment doctrine allows a court to strike
down an English-only provision as an impermissible restriction on speech without holding that language minorities have an enforceable, fundamental right to services in a foreign language.24 Finally, unless a statute facially discriminates against a suspect class, it is likely valid under the Equal Protection Clause unless the plaintiffs can prove that those who enacted the statute acted with an improper motive or intent to discriminate.25 By contrast, First Amendment analysis does not turn on motives.
Consequently, the First Amendment has been the judicial doctrine of choice in striking down English-only statutes. Specifically, courts have found that restrictive English-only statutes abridge (1) the free speech rights of government employees; (2) the free speech rights of legislators and elected government officials; (3) the free speech rights of the recipients; and (4) the First Amendment rights of non-English-speaking citizens to petition their government for
redress of grievances. …