Taking Expression Seriously: Expressive Harm, Equality and Citizenship

Michele Moody-Adams (Columbia University), Michelle Moody-Adams (Columbia University)

I argue that expression (including symbolic expression) sometimes violates the principle of equal citizenship and that when we have convincing evidence that this has happened, or reason to believe it substantially likely to happen, the principle of equal citizenship justifies us in imposing restrictions, including content-based restrictions, on the relevant expression.  I defend the concept of ‘expressive harm’, with particular attention to examples of expression that intrinsically constitute harm in virtue of stigmatizing and intimidating targets of systematic discrimination. I also show that long after laws explicitly licensing discrimination are struck down, the expressive content of systematic discrimination can continue to do expressive harm in ways that violate the principle of equal citizenship,  but suggest what might be done to eliminate the destructive messages that continue to distort social identities, damage institutions, and limit our capacity to collectively realize democratic goods. The argument draws on the work of J.L. Austin,  the constitutional scholarship of Kenneth Karst,  and Jeremy Waldron’s claims about the connection between justice and “political aesthetics.”