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Escaping The Expression-Equality Conundrum: Toward Anti-Orthodoxy And Inclusion, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

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 …