Escaping the Expression-Equality Conundrum: Toward Anti-Orthodoxy and Inclusion

In this article, Professor Hunter questions the naturalness and inevitability of the dichotomy in constitutional law between freedom of expression and the right to equality. She places the origin of this doctrinal divergence in the history of American social protest movements in the first half of the twentieth century, which began with ideologically-based claims and shifted to a primary emphasis on identity-based equality claims. During the interim period between World War I and World War I, the wave of seminal First Amendment cases was ebbing and the wave of equality claims was beginning to swell. Close examination of the constitutional jurisprudence from that time reveals that the Court was groping toward the principle of anti-orthodoxy in expression law and the principle of anti-exclusion in equality law as mutually reinforcing concepts. Professor Hunter proposes that constitutional jurisprudence reclaim the twin principles of anti-orthodoxy and inclusion. Using that lens, she re-examines the Supreme Court\u27s ruling in a hate speech prosecution and the more general debate on issues of multiculturalism. She argues that a less dichotomized perspective shifts the valence of the expression/equality dichotomy so as to enable a richer understanding of the complexity and interconnectedness of both of these centrally important principles