Communication Currents

One way the law creates and shapes our reality is by defining the relationships in which we engage. And one way the law creates and shapes our relationships is by regulating the very language we use as we communicate with each other. In this essay, I analyze the Arizona State Supreme Court opinion Ruiz v. Hull, in which an “English as the Official Language” amendment was found unconstitutional. Specifically, I discuss the terms “content neutral,” “mode of communication,” and “equality,” and analyze the newly formed relationships created as a result of the use of these phrases. I conclude by suggesting an alternative interpretation of the law, one that does not marginalize a minority population—in this case, people who seek government interaction using their language of choice.

In 1987, Arizonans for Official English, a non-profit citizens group, petitioned to designate English as the state’s official language and require all state and local governments to conduct their business only in English. In the November 1988 general election, 50.5 percent of voting Arizonans agreed to amend their state constitution to make English the “official language” of Arizona (“English-only Amendment”).

In November 1992, four officials, five state employees, and a public school teacher initiated a lawsuit claiming they feared to continue speaking Spanish during the course and scope of their employment in the face of the English-only Amendment. On appeal to the Arizona Supreme Court, the proposed amendment requiring English as the “official” language for all government business was held to be a First Amendment infringement upon political speech and government access for non-English speaking people and, the court held, it also violates the Equal Protection Clause of the Fourteenth Amendment because it unduly burdens core First Amendment rights of a specific class of people without advancing a legitimate state interest.

This essay examines how the rhetoric presented in this appellate opinion creates and shapes our legal culture. By legal culture, I mean a socially constructed legal reality that creates relationships guiding interactions among people in specific contexts. Based on the work of Michael McGee and James White, I examine how key phrases in the law (what McGee calls “ideographs”—phrases laden with ideological meaning and power) shape and create the legal relationships that often guide our social interactions. In particular, I examine the phrases “content neutral,” “mode of communication,” and “equality.”

1.   “Content Neutral”: Content-neutral means the government may regulate speech in its various presentations—when, where, or how loud a message can be—but it cannot constitutionally regulate the content of speech. In this case, the Arizona Supreme Court held that the English-only Amendment was not content-neutral because it treated communication between the state and its “non-English-speaking persons” differently than communication between the state and its English-speaking constituents. Specifically, the English-only Amendment required the state to interact with only certain people in an essentially unintelligible manner—requiring the use of only English to non-English-speaking constituents.   

The most important relationships created by the court’s use of the phrase “content neutral” are the relationships amongmessages and the relationships among speakers. When the law refuses to examine the content of a given message, it announces that all messages are equally deserving of protection against state restriction. The First Amendment does not protect only discourse regarding governance or other socially important messages; it protects all messages irrespective of their societal significance. In fact, First Amendment jurisprudence even protects socially repugnant discourse, such as cross burnings. By refusing to measure the worth of a given speaker, whether English-speaking or not, the law also implicitly announces that all speakers are equally deserving of protection against state restriction. So, non-English speaking people are equally deserving of First Amendment free speech. 

2.  “Mode of Communication”: The phrase “mode of communication” recognizes that freedom of expression must address not only the content of expression, but access to communicative channels. It is the recognition that we can have our freedom of speech violated simply by limiting or restricting modes of communication. In this case, the authors of the English-only Amendment argued it was not an attack on free expression—state workers were free to express themselves in any way they deemed appropriate as long as they did so in English. The court recognized this argument as facile. Imagine being dropped in the middle of China having lost all of your money and passport. Unless someone there speaks English or you are fluent in the local Chinese dialect, you are unlikely to find your way home. So, ultimately, the court defines First Amendment free expression as the ability by a state and its people to communicate with each other in a meaningful way—irrespective of the form of that communication. 

3.  “Equality”: The court could have, in line with English-only proponents’ argument, interpreted “equality” as requiring all state employees to treat everyone exactly the same—by always communicating only in English. But the English-only Amendment treats non-English-speaking people differently because it forbids state employees from speaking to them in a language comprehensible to them. And, importantly, this ideological debate can result in real-world consequences. Privileging English and making it the only allowable form of communication between state employees and those they serve has a negative impact on the day-to-day lives of people, many of whom are seeking governmental assistance to put a roof over their heads or food on the table.

While the Supreme Court of Arizona did strike down this particular attempt at privileging English, the victory was short-lived. The landscape changed again in 2006 when Arizonans voted overwhelmingly—72 percent in favor—to amend the state constitution, once again making English the “official language” of Arizona. Article XXVIII of the State of Arizona Constitution provides that the official language of Arizona is English. The citizens of Arizona used their ballot power to override the Arizona Supreme Court’s finding that free speech and equal protection under the law requires the State of Arizona to hear and respect diverse voices.  

The issue becomes, then, how to protect the rights of people who do not speak English so they enjoy the same dignity and rights under the law enjoyed by English-speaking persons. The answer is for the court to reframe the analysis to comport with the clear mandate of the First Amendment’s free expression clause—“Congress shall make no law . . . abridging the freedom of speech . . . .” So, any law that seeks to restrict any form of communication should be scrutinized by the court with the general rule in mind that no law shall inhibit communication. The only allowable restrictions on free expression, then, would be those that historically have been identified where the potential of harm outweighs the right of free expression—obscenity, material that incites acts of violence, and the publication of certain military information during war.[1] To do otherwise is to allow—legally sanction—discrimination against people who seek to interact with each other and with their government in the language of their own choosing.