Opposition Brief — Arizonans for Official English v. Arizona

No. 98-167

In The ER ESS ee ew

Supreme Court of the United States

October Term, 1998

¢

ARIZONANS FOR OFFICIAL ENGLISH AND

ROBERT D. PARK,

Petitioners,

STATE OF ARIZONA; JANE DEE HULL, Governor of

Arizona; GRANT WOODS, Attorney General of

Arizona; LINDA AGUIRRE; JOHN PHILLIP EVANS;

ROSIE GARCIA; JOE EDDIE LOPEZ; CANDIDO

MERCADO; PETER RIOS, JR.; ARMANDO RUIZ;

MACARIO SALDATE IV; FEDERICO SANCHEZ;

and VICTOR SOLTERO,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The Supreme Court Of Arizona

¢

BRIEF IN OPPOSITION OF RESPONDENTS

AGUIRRE, EVANS, GARCIA, LOPEZ, MERCADO,

RIOS, RUIZ, SALDATE, SANCHEZ AND SOLTERO

+

STEPHEN G. MONTOYA

Counsel of Record

ALBERT M. FLores

Of Counsel

337 North Fourth Avenue

Phoenix, Arizona

85003-1572

(602) 256-6718

Attorneys for Respondents

Aguirre, Evans, Garcia, Lopez, Mercado, Rios, Ruiz,

Saldate, Sanchez and Soltero

November 23, 1998

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 . Oo

OR CALL COLLECT (402) 342-2831 tk Q X

QUESTION PRESENTED

1. Does a state law proscribing all state elected offi-

cials and state employees from communicating with their

constituents and members of the public in languages

other than English “during the performance of govern-

ment business” violate the First and Fourteenth Amend-

ments?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .. .. . 02 csetsiesacgesevias i

TABLE OF AUTHORITIES... 0.22... cseecneds ceva cs iii

INTRODUCTION 3)... A La

REASONS FOR DENYING THE PETITION......... 1

Summary of Argument ........6 66066000 cece eeean 1

A. Polylingualism and the Framers ............... 5

B. Polylingualism and the Fourteenth Amendment... 12

C. Polylingualism and the Development of Modern

Free Speech Jurisprudence..............02-.00- 20

D. “Government Speech” and the Free Speech

Rights of Elected Officials... ......0cccceesses 25

E. This Case Does not Involve Circumstances Wor-

they OF Cettirar oo... ssc cs sc ccveuh weaken inans 29

COINCT ARIES so vse tk ncnseeds cibessneb as eee 30

iii

TABLE OF AUTHORITIES

Page

CASES

Abrams v. United States, 250 U.S. 616 (1919) ..20, 21, 23

Barbier v. Connally, 113 U.S. 27 (1884) ...........---- 19

Bartels v. Iowa, 262 U.S. 404 (1923) ..........-2---5-- 24

Bond v. Floyd, 385 U.S. 116 (1966)........--.+---- 28, 29

Cohen v. California, 403 U.S. 15 (1971) .....------.--- 25

Eastern R.R. Presidents Conference v. Noerr Motor

Freight, 365 U.S. 127 (1961) .....------ +++ seer eee ees +

Farrington v. Tokushige, 273 U.S. 284 (1927) ........-. 24

Frohwerk v. United States, 249 U.S. 204 (1919)..... su, 2

Griswold v. Connecticut, 381 U.S. 475 (1965)...... oo 24

Hurtado v. California, 110 U.S. 516 (1884) ..........--. 5

Meyer v. Nebraska, 262 U.S. 390 (1923)......-.---- 24, 25

Nebraska District of Evangelical Lutheran Synod v.

McKelvie, 262 U.S. 410 (1923) .........---- eee eee o4

New York Times v. Sullivan, 376 U.S. 254

SECU spa cnschinepsvstessssecaccccns 4, 6, 21, 28

Romer v. Evans, 116 S.Ct. 1620 (1996).........- 5, 19, 20

Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998) ...........+--- 4

Schaefer v. United States, 251 U.S. 466 (1920)..21, 22, 23

Slaughter-House Cases, 83 U.S. (16 Wall. 36) (1873) .... 17

Wisconsin v. Mitchell, 508 U.S. 476 (1993).........-+-- 4

iv

TABLE OF AUTHORITIES —- Continued

Yniguez v. Mofford, 730 F.Supp. 309 (D. Ariz. 1990) ..... 5

Yniguez v. Arizonans for Official English, 42 F.3d

BZU7 (GRD CE. Bele csc ng tdwns ssnmenenceo ee ahs 5

Yniguez v. Arizonans for Official English, 69 F.3d 920

(SU CRE SO sis AND a CaS gave vephesewesewres 5

Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926)......... 24

CONSTITUTIONAL AUTHORITIES

Arizona State Constitution, Article XXVIII....... passim

United States Constitution, First Amendment.... passim

United States Constitution, Fourteenth Amend-

IE. nach ntaccaticnyt3 er VaR y shane Paeeeeee passim

STATUTUE

Arizona Revised Statute § 12-1831 ................... 2

OTHER AUTHORITIES

W.P. Adams, “The Colonial German-Language

Press and the American Revolution,” The Press

and the American Revolution (B. Bailyn & J.

ee eR a te ra 9

J. Adams, Thoughts on Government (1776)............ 27

J. Allen, Printers and Press Freedom (1988) ............ 8

A. Amar, The Bill of Rights (1998)......... 6, 17, 19, 28

M. Arrington, Note, English Only Laws and Direct

Legislation: The Battle in the States Over Language

Minority Rights, 7 J.L. & Pol. 325 (1991)............ 1

Vv

TABLE OF AUTHORITIES - Continued

Page

B. Bailyn, Voyagers to the West (1986)............ 6, 7, 8

B. Bailyn, The Ideological Origins of the American

INE IIIs 6 Sas WA cna ba cee e cee daeiaecee ss 27

B. Bailyn, The Peopling of British North America

CD sai Sa ei es wrasse 10

K. Bartel, German and Germans at the Time of the

American Revolution, 60 Modern Language Jour-

wp is, | RRS ee ee rr 8

D. Baron, The English-Only Question (1991) ........... 1

M. Blanchard, Revolutionary Sparks (1992)............ 23

L. Bollinger, The Tolerant Society (1986) .............. 24

C. Calloway, The American Revolution in Indian

COMBI Lene Rnd Rav. amwin bos Geeen ie angnase'> Jeaaare’ 7

Z. Chafee, Free Speech in the United States

(R55 lee U0 ERIS. Fie Sh 23, 24, 26

Congressional Globe (1866) .............-+++++- 16, 17, 19

K. Conzen, “Germans,” Harvard Encyclopedia of

American Ethnic Groups (1980).............2--0e0ee: 8

J. Crawford, Hold Your Tongue..................05: 1, 14

M. Curtis, No State Shall Abridge (1986) ............. 18

The Debate on the Constitution (B. Bailyn ed. 1993) .... 12

D. Donald, Liberty and Union (1978)...........+++4-. 14

D. Donald, The Politics of Reconstruction, 1863-1867

PROUD 65 ois CA a umEEE KS AA eed np kkadhs oseaeens 15

vi

TABLE OF AUTHORITIES - Continued

Page

D. Donald, Lincoln C1998) 665.0 ei lh CEES ANS 13, 14

Elliot's Debates on the Adoption of the Federal Consti-

te ner Tes ome ny aera”

A. Faust, The German Element in the United States

7 ra ee yrerreretuareraeyey es et 14

E. Foner, Reconstruction (1988). ............cecceseees 15

E. Foner, Free Soil, Free Labor, Free Men (1995)....... 14

J. Franklin, The Emancipation Proclamation (1963)..... 17

W. Freehling, The Road to Disunion (1990) ........... 17

N. Grado, “The Cultural Effects of the Revolu-

tion,” The Blackwell Encyclopedia of the American

PEON TEIPEES. oo vk cK acc y hGMabe RASA EO oats 6Sa's 0: 6

S. Heath, “Language and Politics in the United

States,” Linguistics and Anthropology (1977) ........ 11

S. Heath, “A National Language Academy?

Debate in the New Nation,” Inter. Nat. Jour.

eB a. I ere re bees eer 12

A. Josephy, The Indian Heritage of America (1968)...... 7

Journal of the Proceedings of the Convention of Louisi-

RE C66 55 whois & ES RL OK CREAR Uae ee ce 15

H. Kloss, The American Bilingual Tradition (1977)...... 6

L. Levy, Emergence of a Free Press (1985)........... 8, 26

A. Meiklejohn, Political Freedom: The Constitutional

Powers of the People (1960) ... 0.00. 0 csssccecenss 26, 28

R. Middlekauff, Benjamin Franklin and His Enemies

CRP IE a 0 Abs » Kn 6-4 RAR AEE Ow ROR KARO Cha bee’ 10

E. Morgan, Inventing the People (1988)............... 27

Vii

TABLE OF AUTHORITIES - Continued

Page

R. Morris, Witnesses at the Creation (1985) ............ 6

W. Nelson, The Fourteenth Amendment (B. Bailyn &

pe Oe reper ree ee eee 15

The Papers of Benjamin Franklin (1753) ..........-..-- 10

W. Parson, “Representation of Ethnicity Among

Colonial Pennsylvania Germans,” A Mixed Race;

Ethnicity in Early America (F. Shuffelton ed.

RRs Ditc pce hicks Abtp adn do AradRARGA Se Kaedarens.s> 10

J. Perea, “Demography and Distrust: An Essay on

American Languages, Cultural Pluralism and

Official English,” 77 Minn. L. Rev. 269 (1992)...... 9

J. Rakove, Original Meanings (1996)...........-+++++- 27

K. Stamp, America in 1857 (1990)..........-.---+++5 14

J. Story, Commentaries on the Constitution of the

a gee. are ee ee eee 11

M. Urofsky, “The Brandeis-Frankfurter Conversa-

tions,” 1985 Sup. Ct. Rev. 299.................56:- 24

S. Wolf, As Various as Their Land: The Everyday

Lives of Eighteenth-Century Americans (1993)......... 8

1

. INTRODUCTION

Pursuant to this Court’s request that respondents

respond to the Petition for Certiorari filed by Arizonans

for Official English and Robert D. Park, respondents

Aguirre, Evans, Garcia, Lopez, Mercado, Rios, Ruiz, Sal-

date, Sanchez, and Soltero respectfully request that the

Petition be denied for the reasons set forth below.

REASONS FOR DENYING THE PETITION

Summary of Argument

Article 28 of the Arizona Constitution provides that

“English is the language of the ballot, the public schools

and all governmental functions and actions.” Ariz. Const.,

Art. 28, § 1(2) (emphasis added). Article 28 applies to “the

legislative, executive and judicial branches of govern-

ment,” and to “all political subdivisions, departments,

agencies, organizations, instrumentalities, local govern-

ments and nilnicipalities” of Arizona, including “all gov-

ernment officials and employees during the performance

of government business.” Id., 1(3)(a)(iv) (emphasis

added). Article 28 requires that “[t]his State and all politi-

cal subdivisions of this State shall act in English and in no

other language,” and “prohibit[s] [t]his State from using

or requiring the use of languages other than English. . . . ”

Id., § 3(1)(a) (emphasis added). Based on this uniformly

broad language, Article 28 is “by far the most restrictively

worded official-English law to date.” M. Arrington, Note,

English Only Laws and Direct Legislation: The Battle in the

States Over Language Minority Rights, 7 J.L. & Pol., 325, 327

(1991).}

1 See also D. Baron, The English-Only Question 21 (“[A]rticle

28 . . . is the most restrictive of the current wave of official-

language laws. . . . ”) (1990), and J. Crawford, Hold Your Tongue

176 (1992) (“Arizona’s [Article 28 is] so far the most restrictive

[Official English] measure”).

2

Respondents are a group of Hispanic state elected

officials and state employees who routinely communicate

in Spanish with their constituents and members of the

public “during the performance of government business.”

Respondents thus fall within the express prohibitions of

Article 28. Many of respondents’ constituents do not

speak English well or at all. Article 28 would conse-

quently prevent respondents from providing information

to constituents and other members of the public that they

are elected and employed to serve.

After the Governor of Arizona announced her inten-

tion to enforce Article 28, respondents challenged the

constitutionality of Article 28 in the Maricopa County

Superior Court seeking a declaration that Article 28 vio-

lated their rights under the free speech clause of the First

Amendment and the equal protection clause of the Four-

teenth Amendment.? Arizonans for Official English and

its Chairperson Robert D. Park subsequently intervened

as defendants in the litigation. In an unpublished mem-

orandum decision, the Maricopa County Superior Court

entered summary judgment in favor of the defendants.

Respondents appealed the judgment to the Arizona Court

of Appeals, and that court unanimously reversed the

Superior Court. The defendants then appealed from the

Court of Appeals judgment to the Arizona Supreme

Court. In a unanimous decision, the Arizona Supreme

Court affirmed judgment of the Court of Appeals and

concluded that Article 28 violated the First and Four-

teenth Amendments.

The State of Arizona, the Governor of Arizona, and

the Attorney General of Arizona elected not to appeal

from the Arizona Supreme Court’s judgment. However,

2 Respondents sued the State of Arizona, the Governor of

Arizona, and the Attorney General of Arizona under 42 U.S.C.

§ 1983 and the Arizona Declaratory Judgment Act, A.R.S.

§ 12-1831.

ee

3

the intervening defendants - Arizonans for Official

English and Robert D. Park — timely filed a Petition for a

Writ of Certiorari to the Supreme Court of Arizona.3

Because Article 28 expressly forbids state elected offi-

cials (and their agents) from communicating with their

constituents and members of the public in languages

other than English “during the performance of govern-

ment business,” the Arizona Supreme Court concluded

that Article 28 abridged “core” political speech in viola-

tion of the free speech clause of the First Amendment.

Specifically, the Arizona Supreme Court reasoned that:

[Article 28] violates the First Amendment by

depriving elected officials and public employees

of the ability to communicate with their constit-

uents and with the public. With only a few

exceptions, the Amendment prohibits all public

officials and employees in Arizona from acting

~ in a language other than English while perform-

ing government functions and policies. We do

not prohibit government offices from adopting

language rules for appropriate reasons. We hold

that the Amendment goes too far because it

effectively cuts off governmental communica-

tion with thousands of limited-English-profi-

cient and non-English-speaking persons in

Arizona, even when the officials and employees

have the ability and desire to communicate in a

language understandable to them. Meaningful

communications in those cases is barred. Under

such circumstances, prohibiting an elected or

3 Respondents agree with the State Respondents that

petitioners lack standing to appeal the Arizona Supreme

Court’s judgement regarding Article 28 because petitioners’

lack a federally cognizable interest in Article 28. See generally

State Respondents’ Brief in Opposition to Petition for Writ of

Certiorari 6-12 (Nov. 16, 1998).

4

appointed official or an employee from commu-

nicating with the public violates the employee’s

and the official’s rights.

Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998), Petitioners’ Appen-

dix 32a.4 The Arizona Supreme Court also concluded that

Article 28 violated the equal protection clause of the

Fourteenth Amendment, reasoning that:

By permanently implementing a linguistic bar-

rier between persons and the government they

have a right to petition, [Article 28] substan-

tially burdens First Amendment rights. See East-

ern R.R. Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 137 (1961) (“The whole

concept of representation depends upon the

ability of the people to make their wishes

known to their representatives”). Therefore,

[Article 28] violates the Fourteenth Amend-

ment’s guarantees of equal protection because it

impinges upon both the right to participate

equally in the political process and the right to

petition the government for redress.

Id. at 41a-42a. These conclusions reflect this Court’s well-

settled understanding of the First and Fourteenth

Amendments. As this Court recognized in New York Times

v. Sullivan, 376 U.S. 254, 266 (1963), the First Amendment

was designed to “secure the widest possible dissemina-

tion of information from diverse and antagonistic

sources.” Article 28 threatened to circumscribe the dis-

semination of information by restricting the political

speech of state elected officials. Moreover, because Article

28 would restrict the free speech rights of a specific class

* Although both the State defendants and petitioners

contested the construction of Article 28 ultimately adopted by

the Arizona Supreme Court and contended that the scope of

Article 28 was extremely narrow, this Court is bound by the

Arizona Supreme Court’s construction of Article 28. See, e.g.,

Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993).

5

of speakers, it violates the equal protection principles

applied by this Court in Romer v. Evans, 116 S.Ct. 1620

(1996).5

The Arizona Supreme Court was consequently cor-

rect in declaring Article 28 unconstitutional. There is

consequently no reason for this Court to consume its

Scarce resources on this dispute by means of granting

certiorari.

A. Polylingualism and the Framers.

As this Court observed over one hundred years ago,

[t]he Constitution of the United States . . . was made

.. . for a people gathered and to be gathered from many

nations and of many tongues. Hurtado v. California, 110 U.S.

516, 530-531 (1884) (emphasis added). Reflecting the

enduring validity of this observation, the public and pri-

vate uses of languages other than English have been a

staple of every era of American history. Although English

has always enjoyed linguistic primacy in the United

° The Arizona Supreme Court carefully limited the scope of

its opinion: “In making these rulings, we express no opinion

concerning the constitutional validity of less restrictive English-

only provisions discussed in this opinion. We also emphasize

that nothing in this opinion compels any Arizona governmental

entity to provide service in a language other than English.”

Petitioners’ Appendix 7a.

© In addition to the Arizona Court of Appeals and the

Arizona Supreme Court, three federal tribunals have declared

Article 28 void as violative of the First Amendment: the United

States District Court in Yniguez v. Mofford, 730 F. Supp. 309 (D.

Ariz. 1990), a three judge panel of the Ninth Circuit in Yniguez v.

Arizonans for Official English, 42 F.3d 1217 (9th Cir. 1994), and the

Ninth Circuit sitting en banc in Yniguez v. Arizonans for Official

English, 69 F.3d 920, vacated on remand, 118 F.3d 667 (9th Cir.

1997). Accordingly, petitioners have lost this case on five

separate occasions.

6

States, this primacy has peacefully coexisted with exten-

sive polylingualism in the private and the public spheres

of American discourse. The American tradition of linguis-

tic tolerance has both shaped and is a product of the

principle of “the freedom of speech” guaranteed by the

First Amendment.”

The polylingualism of the founding era is well-docu-

mented. See generally H. Kloss, The American Bilingual

Tradition (1977). As Professor Norman Grado writes:

The sounds of Africa, Europe, the Mediterra-

nean, and the West Indies enriched the coastal

air [of eighteenth-century America] as much as

did the spices and aromas-of various ethnic

cuisines. . . . We tend to forget that passionate

conversations about religion and politics, as

well as family matters, were as likely to be

thought through and spoken in vigorous Ger-

man, French, Dutch, Yoruba, Gullah, Spanish,

Swedish or Farsi. . . .

Norman S. Grado, “The Cultural Effects of the Revolu-

tion,” in The Blackwell Encyclopedia of the American Revolu-

tion 579 (1994). Similarly, many Scottish, Welsh and Irish

immigrants in Revolutionary America spoke Gaelic (and

dialects thereof) and were unable to communicate in

English. See B. Bailyn, Voyagers to the West 575-576 n.2

(1986), and R. Morris, Witnesses at the Creation 121 (1985).

Georgia, New York, Maryland, Pennsylvania, Virginia,

North Carolina, South Carolina, Florida, Alabama (then

called “West Florida”), and Louisiana all had significant

7 When interpreting the First Amendment, this Court

frequently considers the free speech traditions of the era when

the Bill of Rights was drafted and ratified. See, e.g., New York

Times v. Sullivan, 376 U.S. 254, 273-277 (1964). As Professor

Akhil Amar has demonstrated, the free speech traditions of the

era in which the Fourteenth Amendment was drafted and

ratified also inform First Amendment interpretation. See A.

Amar, The Bill of Rights 137-294 (1998).

7

polylingual communities during the Revolutionary era,

speaking Dutch, French, German, Gaelic, Greek, Italian,

and Spanish. See B. Bailyn, Voyagers to the West 19, 25, 27,

455-461, 467, 478, 575-576 (1986).

In addition to languages native to Europe and the

British Isles, over one thousand Native American lan-

guages were spoken in eighteenth-century America. See

A. Josephy, The Indian Heritage of America 12-15 (1968). For

example,

[while t]raveling in New York in 1776, Joseph

Bloomfield, then a captain in the Third New

Jersey Regiment and later governor of New Jer-

sey, heard spoken on a daily basis English, High

Dutch, Low Dutch, French, Mohawk, Oneida,

Seneca, Cayuga, Onondaga, and Tuscarora.

C. Calloway, The American Revolution in Indian Country 17

(1995). The prevalence of these indigenous tongues had a

significant impact on the European settlers of early Amer-

ica; indigenous languages were so pervasive during the

Revolutionary era that the European settlers “incorpo-

rated Algonkian, Iroquoian, and Muskhogean terms into

their vocabulary.” Id. Thus, like many other states, the

Commonwealth Massachusetts is named after a-Native

American tribe.

African-Americans — who comprised approximately

one fifth of the population of Revolutionary America -

also spoke various African-related dialects. As Stephanie

Grauman Wolf observes:

The many languages of Africa were integrated

with each other [in eighteenth-century Amer-

ica], as well as with English, to form the Creole

languages distinctive in different parts of the

southern colonies. We are familiar with the Gul-

lah tongue of the islands of the eastern coast of

South Carolina because it has survived into the

twentieth century, but many contemporaries

noticed Virginia blacks spoke a special “mixed

dialect between Guinea and English,” while a

8

missionary in 1748 reported that blacks in the

Chesapeake had “a language peculiar to them-

selves, a wild confused medley of Negro and

corrupt English, which makes them very unin-

telligible except to those who have conversed

with them for many years.”

S. Wolf, As Various as Their Land: The Everyday Lives of

Eighteenth-Century Americans 264 (1993).

Foreign language speech was not limited to the spo-

ken word, and the foreign language press was active

throughout the Revolutionary era. Benjamin Franklin

published the first German language newspaper in Amer-

ica in 1732 — the “Philadelphische Zeitung,” see K. Bartel,

“German and the Germans at the Time of the American

Revolution,” 60 Modern Language Journal 98 (1976), and

one of the most significant newspapers published during

the Revolutionary era was the “Wochentliche Pen-

nslyvanische Staatsbote.” See B. Bailyn, Voyagers To The

West, 62, 310, 402 (1986). Approximately thirty-eight dif-

ferent German-language newspapers were published in

America between 1732 and 1800. See K. Conzen, “Ger-

mans,” Harvard Encyclopedia of American Ethnic Groups 409

(1980). In fact, a father of the American free press — John

Peter Zenger — was a “poorly educated German immi-

grant” who probably spoke more German than English,

see L. Levy, Emergence of a Free Press 39, 52 (1985), and one

of the first significant controversies in America regarding

freedom of the press and the law of seditious libel

involved a 1758 edition of the Philadelphische Zeitung. See

J. Allen, Printers and Press Freedom 132-134 (1988).

Indeed, newspapers like Der Philadelphishce Staatsbote

and the Wochentliche Pennslyvanische Staatsbote contrib-

uted to the public dialogue that culminated in the Ameri-

can Revolution and helped to establish the national

identity essential to the Revolution’s success. Professor

W.P. Adams notes that:

9

The German-language press played a major role

in the political culture that sustained the trans-

formation of colonial territories and provincial

societies into an independent American nation-

state. It helped create an enlightened, politically

relevant public opinion that gave practical

meaning to the central principles of enlightened

politics, popular sovereignty and the accoun-

tability of the rulers to their electors. In doing so

it also played an active role in the process of

nation-building. It helped the German-speaking

minority to feel part of and to function in a

larger national whole. And it did all of this in

ways that were not much different from the

_ ways by which the English-language press all

over the colonies helped integrate their diverse

audiences into a national community.

W.P. Adams, “The Colonial German-language Press and

the American Revolution,” in The Press and the American

Revolution 219 (B. Bailyn & J. Hench eds.) (1980). This

conclusion is perhaps best illustrated by the fact that the

first American newspaper to announce the promulgation

of the Declaration of Independence was Der Phila-

delphishce Staatsbote. Id. at 152.

Government communications in thy Revolutionary

era reflected the linguistic diversity of the period. In the

public sphere at the national level, the Continental Con-

gress published various official documents in English,

German, and French editions, including the Articles of

Confederation and the famous 1774 Address to the peo-

ple of Quebec lauding the relationship between a free

press and self-government. See generally, J. Perea,

“Demography and Distrust: An Essay on American Lan-

guages, Cultural Pluralism and Official English,” 77

Minn. L. Rev. 269, 284-287 (1992). The Continental Con-

gress also issued numerous other documents in German

and French in connection with its successful efforts to

recruit German and French troops. Id.

10

Official polylingualism was also common at the local

level. “An estimated 10 percent of the pre-Revolutionary

population was German-speaking, . . . [and Georgia’s]

population was so polyglot that a successful magistrate

needed to speak fluently in at least three languages and

preferably four. ...” B. Bailyn, The Peopling of British

North America 16-17 (1986). In eighteenth-century .Penn-

sylvania, “[i]n legal action[s] and court proceedings ...,

documents in German were just as valid as those in

English.” W. Parsons, “Representation of Ethnicity

Among Colonial Pennsylvania Germans,” in A Mixed

Race: Ethnicity in Early America 120 (F. Shuffelton ed.

1993). Under the leadership of Benjamin Franklin, peti-

tions in German and English were distributed to be

signed by the electorate and submitted by the Pennsylva-

nia Assembly to the British Parliament requesting that the

Penn proprietorship be abolished and replaced with a

royal charter. See R. Middlekauff, Benjamin Franklin and

His Enemies 87, 98-99 (1996).

Based on the unqualified language of the free speech

clause and the pervasive private and official use of for-

eign language speech throughout the Revolutionary era,

the framers of the First Amendment obviously believed

that foreign language speech constituted “speech” for

First Amendment purposes. Although the framers were

acutely aware of the existence of foreign language speech

in the public sphere - Franklin publicly lamented it® -

they did nothing to suggest that such speech could be

lawfully abridged; to the contrary, the framers associated

language proscriptions with the European oppression

that the American Revolution sought to vanquish. As

8 Franklin’s remarks about “the Palatine Boors . .

swarm[ing] into our settlements, and by herding together

establish[ing] their language and manners to the exclusion of

ours” are well-known. See 4 The Papers of Benjamin Franklin 227

(1751) (Labaree ed. 1961).

11

Justice Joseph Story explained in his Commentaries on the

Constitution,

The next clause of the amendment respects the

liberty of the press. “Congress shall make no

law abridging the freedom of speech, or of the

press....” A little attention to the history of

other countries in other ages will teach us the

vast importance of this right. It is notorious, that

even to this day, in some foreign countries it is a

crime to speak upon any subject, religious,

philosophical, or political, what is contrary to

the received opinions of the government, or the

institutions of the country, however laudable

may be the design, and however virtuous may

be the motive. . . . The Bible itself, the common

inheritance, not merely of Christendom, but of

the world, has been put exclusively under the

control of government; and not allowed to be

seen, or heard, except in a language unknown to

the common inhabitants of the country. To pub-

lish a translation in the vernacular tongue, has

been in former times a flagrant offense.

J. Story, Commentaries on the Constitution of the United

States 703-705 (1833). Similarly, a leading scholar in the

history of American multilingualism, Professor Shirley

Heath, has noted that:

[E]arly political leaders recognized the close

, connection between language and religious/cul-

tural freedoms, and they preferred to refrain

from proposing legislation which might be con-

strued as a restriction on these freedoms.

S. Heath, “Language and Politics in the United States,” in

Linguistics and Anthropology 267, 270 (1977). These com-

ments reflect the framers’ association of language pro-

scriptions with the religious and cultural oppression of

Europe. Just as the framers rejected the idea of an estab-

lished religion or a ministry of culture, they also rejected

the idea of an official language and a language academy.

aaa aeaaaeaiiaeaniaitil

12

Id. See also S. Heath, “A National Language Academy?”

Debate in the New Nation, 11 International Journal of the

Sociology of Language 9 (1976).

Thus, the absence of language proscriptions is an

element of the liberty affirmed and institutionalized by

the Constitution. As Tench Coxe observed in 1787 during

the debates on the ratification of the Constitution:

To take a proper view of the ground on which

we stand, it may be necessary to recollect the

manner in which the United States were origi-

nally settled and established. Want of charity in

the religious systems of Europe and of justice in

their political governments were the principal

moving causes which drove the emigrants of

various countries to the American continent.

The Congregationalists, Quakers, Presbyterians

and other British dissenters, the Catholics of

England and Ireland, the Huguenots of France,

the German Lutherans, Calvinists, and Mora-

vians, with several other societies, established

themselves in the different colonies, thereby lay-

ing the ground of that catholicism in ecclesiasti-

cal affairs which has been observable since the

late revolution: Religious liberty naturally pro-

motes corresponding dispositions in matters of

government.

1 The Debate on the Constitution 20 (B. Bailyn ed. 1993).

Article 28 is a radical repudiation of this foundational

free speech tradition.

B. Polylingualism and the Fourteenth Amendment.

The linguistic tolerance of the founding era did not

end with the ratification of the Constitution and the Bill

of Rights. The American polylingual tradition continued

unabated in the nineteenth-century and is richly illus-

trated by the Civil War and Reconstruction years. A brief

examination of this transformative period of constitu-

tional history is useful to appreciate the Fourteenth

13

Amendment's impact on the free speech rights of minor-

ity groups.

In 1855 when asked whether he was in agreement

with the nativistic “Know-Nothing” party, Abraham Lin-

coln answered:

How could I be? How can anyone who abhors

the oppression of negroes, be in favor of degrad-

ing classes of white people? Our progress in

degeneracy appears to me to be pretty rapid. As

a nation, we began by declaring that “all men are

created equal.” We now practically read it, “all

men are created equal, except negroes.” When

the Know-Nothings get control, it will read, “all

men are created equal, except negroes, and for-

eigners and catholics.” [When it comes to this] I

should prefer emigrating to some country where

they make no pretense of loving liberty - to

Russia, for instance, where despotism can be

taken pure, and without the base alloy of hypoc-

risy.

D. Donald, Lincoln 189 (1995) (emphasis in original). Sub-

sequently, in 1861 when criticizing a proposed amend-

ment to the Massachusetts constitution imposing a two

year residency requirement on voting by naturalized citi-

zens, Lincoln explained that:

I have little notoriety for commiserating the

oppressed condition of the negro, and I should

be strangely inconsistent if I could favor any

project for curtailing the existing rights of white

men, even though born in different lands, and

speaking different languages from myself.

Id. at 231 (emphasis added). Lincoln’s opinions regarding

equality under law were shared by his Republican col-

leagues. The Republican platform of 1860 contained an

anti-nativist plank opposing “any state legislation by

which the rights of citizens hitherto accorded to immi-

grants from foreign lands shall be abridged or impaired;

and in favor of giving a full and efficient protection to the

14

rights of all classes of citizens, whether native or natu-

ralized....” E. Foner, Free Soil, Free Labor, Free Men 257

(1995). Thus, on the eve of the Civil War, the Republicans

who would later draft the Fourteenth Amendment identi-

fied foreign language speakers as a specific class of indi-

viduals entitled to equal rights.

Republican tolerance of linguistic pluralism

respected the underlying ethnic diversity of the era. “ Het-

erogeneous was the only adjective that could describe the

American people [on the eve of the Civil War]. . . . [Bly

1850 the American population included representatives of

almost every race and language ut the world.” D. Donald,

Liberty and Union 5 (1978) (emphasis in original). Ever

cognizant of the importance of the foreign language vote,

political candidates in the Civil War era were careful to

communicate with these voters in their native tongues. In

1856, presidential candidate James Buchanan had a cam-

paign pamphlet discussing the “free soil” controversy in

the Kansas territory translated into German “for circula-

tion in Pennsylvania’s German counties.” K. Stamp,

America in 1857 159 (1990). Similarly, in his unsuccessful

1858 senatorial campaign against Stephen Douglas,

Abraham Lincoln had his famous “House Divided”

speech (among others) translated into German to appeal

to Illinois’s influential German constituency. See D.

Donald, Lincoln 211, 231 (1995). Carl Schurz and Gustave

Koerner also campaigned extensively in German for Lin-

coln in the 1860 presidential election, and several scholars

have argued that German support was essential to Lin-

coln’s success in the election. See generally 2 A. Faust, The

German Element in the United States 150-187 (1927), E.

Foner, Free Soil, Free Labor, Free Men 259 n. 71 (1995).?

® The official polylingualism of this era of constitutional

history is also illustrated by the publication of Minnesota’s

constitution of 1857 in English, German, Swedish, Norwegian

and French, see J. Crawford, Hold Your Tongue 44 (1992),

15

By 1866, after Appomattox, the ratification of the

Thirteenth Amendment, and the passage of the Civil

Rights Act of 1866, the principle of linguistic tolerance

was orthodoxy for the Republicans who drafted the Four-

teenth Amendment. See generally E. Foner, Reconstruction

257 (1988). For example, Representative Thaddeus

Stevens of Pennsylvania - the head of the House delega-

tion to the Joint Committee on Reconstruction that offi-

cially reported the Fourteenth Amendment - explained

that Reconstruction legislation passed pursuant to section

two of the Thirteenth Amendment was designed to

assure that “all laws be impartial, without regard to lan-

guage, race or former condition.” Quoted in D. Donald,

The Politics of Reconstruction, 1863-1867 58 (1965)

(emphasis added). Representative Stevens later remarked

that the Fourteenth Amendment required that “the same

laws must and shall apply to every mortal, American,

Irishman, African, German, or Turk.” Quoted in W.

Nelson, The Fourteenth Amendment 116 (1988).

In accordance with this conception of equality - and

ever mindful of their German-speaking colleagues and

constituents — the Reconstruction framers refused to limit

the right to vote to those citizens who could read the

Constitution and write their names in English. On June

27, 1866, during the first session of the 39th Congress,

Senator Lot Morrill of Maine proposed an amendment to

a suffrage bill for the District of Columbia requiring

English literacy, contending that:

I believe for the sake of unity, unity in our

civilization, unity in our language, unity in our

California’s constitution of 1849 in English and Spanish, Cal.

Const. of 1849, and Louisiana’s constitution of 1845 in English

and French. See Journal of the Proceedings of the Convention of

Louisiana 313-315 (1845).

16

sentiments and opinions, that we ought to incul-

cate as a standard and a formula that the laws

should always be printed in the English lan-

guage; and so far as any [suffrage] qualification

is concerned, certainly our civilization is worth

but little in its influence and its effect upon

aliens and foreigners, if at least we do not

require them to speak our language.

Congressional Globe, 39th Cong., 1st Sess. 3433 (1866). In

arguing against Senator Morrill’s proposal Senator Sam-

uel Pomeroy of Kansas stated that:

[T]he man who becomes an American from

choice, who looking over the ocean and seeing

America, learning of our institutions, breathing

somewhat of our freedom, longing to identify

himself with us in this great struggle for self-

government, comes here and voluntarily

assumes the duties of a citizen, enters our Army,

and carries our flag to victory; I say such a man,

if he cannot write a word in English, is an

American; he is a patriot; he is loyal; and he is

entitled to vote.

Id. Senator (and future Vice President) Henry Wilson of

Massachusetts echoed Pomeroy’s views, exclaiming “why

tell a German, a man of intelligence and character, that he

must read the Constitution in the English language? Why

say to the Frenchman, or to any foreigner who comes

here, that he must be able to read and write in the English

language? I think it is all wrong.” Id. Based on these

remarks, Senator Morrill withdrew his proposed amend-

ment without further debate. Id.

Lastly, when considering the meaning of the Four-

teenth Amendment, it is important to remember that the

institution of slavery acted as a straightjacket on the First

Amendment that was not removed until the outbreak of

the Civil War and the passage of the Fourteenth Amend-

ment. As Professor Akhil Amar observes:

17

From the 1830s on, the abolitionist crusaders

had understood that freedom of speech for all

men and women went hand in hand with free-

dom of bodily liberty for slaves. The Slave

Power posed a threat to freedom - of all kinds -

and could support itself only through suppres-

sion of opposition speech, with gag rules on

anti-slavery petitions, bans on “incendiary”

publications, intrusions on the right of peace-

able assembly, and so on.

A. Amar, The Bill of Rights 234-235 (1998). See also W.

Freehling, The Road to Disunion 98-118, 289-352 (1990).

Slavery’s disabling impact on the First Amendment was

the subject of frequent petitions by citizens to the 39th

Congress. For example, on January 30, 1866, Senator

Howard of Michigan presented a petition from “certain

German naturalized citizens of the United States residing

in Detroit” seeking “prohibition of all restrictions of free

speech, free press, free assemblage and free instruction.”

Congressional Globe, 39th Cong., 1st Sess. 494 (1886).1°

In light of the problem of slavery and free speeeh, the

39th Congress sought to abolish by means of the Four-

teenth Amendment the regulations, practices and cus-

toms that stifled free speech. As Justice Bradley

acknowledged in his dissenting opinion in the Slaughter-

House Cases, 83 U.S. (16 Wall.) 36, 123 (1873):

The mischief to be remedied [by the Fourteenth

Amendment] was not merely slavery, . . . [but

also] that intoleration of free speech and free

discussion which often rendered life and prop-

erty insecure, and led to so much unequal legis-

lation.

10 Similarly, one of first petitions received by President

Lincoln urging him to immediately abolish slavery was written

in German by a group of German-American citizens residing in

Chicago. See J. Franklin, The Emancipation Proclamation 26 (1963).

18

See also, M. Curtis, No State Shall Abridge 32, 49-50, 56,

133-139 (1986).

The framers of the Fourteenth Amendment accom-

plished their free speech purposes by incorporating an

equal protection component into the concept of free

speech which prohibited the imposition of state restric-

tions on speech based on subject matter or group classi-

fication. Professor Amar explains that:

[T]he very meaning of freedom of speech

... was subtly redefined in the process of being

incorporated [into the Fourteenth Amendment].

In the eighteenth century the paradigmatic

speaker was someone like John Peter Zenger or

James Callender, a relatively popular publisher

saying relatively popular things critical of less

popular government officials. In the mid-nine-

teenth century the paradigm shifted to the

Unionist, the abolitionist, and the freedman, to

speakers like Samuel Hoar, Harriet Beecher

Stowe, and Frederick Douglass... .

The shift from Zenger and Callender to Hoar,

Stowe, and Douglass was subtle but significant.

All can be seen as “outsiders,” but with an

important difference. As representatives of the

Fourth Estate, Zenger and Callender were out-

side the government that tried to censor them,

but Hoar, Stowe, and Douglass were outsiders

in a much deeper sense. Vis-a-vis the Southern

society trying to suppress their speech, Hoar,

Stowe, and Douglass were geographic, cultural,

and ethnic outsiders who were critical of domi-

nant social institutions and opinions. Put this

way, this shift directs us away from Madison’s

first concern in The Federalist No. 51 (the

“agency” problem of protecting the people

against unrepresentative government), toward

his second concern (protecting minorities from

“factional” majority tyranny). The new First/

19

Fourteenth Amendment tradition is less major-

itarian and more libertarian. . . .

The 1866 redefinition [of free speech} changed

the central purpose . . . of freedom of speech,

making central certain types of speech that had

previously been far more peripheral: religious

speech, artistic speech, and most importantly,

minority speech.

A. Amar, The Bill of Rights 237-238 (1998) (emphasis

added). Thus, when seen through the lens of the Four-

teenth Amendment, the principle of free speech prohibits

the imposition of disparate restrictions on minority

speech. As Senator Howard of Michigan stated in his

famous speech presenting the final version of the Amend-

ment to the Senate floor, “[the Fourteenth Amendment]

abolishes all class legislation in the States and does away

with the injustice of subjecting one caste of persons to a

code not applicable to another.” Congressional Globe, 39th

Cong. 1st Sess. 2766 (1866). See also Barbier v. Connally, 113

U.S. 27, 32 (1884) (“Class legislation, discriminating

against some and favoring others, is prohibited [under

the Fourteenth Amendment]”).

The equal protection proscription of “class legisla-

tion” was recently illustrated by this Court’s opinion in

Romer v. Evans, 116 S. Ct. 1620, 1628 (1996):

It is not within our constitutional tradition to

enact [class-based] laws of this sort. Central

both to the idea of the rule of law and to our

own Constitution’s guarantee of equal protec-

tion is the principle that government and each

of its parts remain open on impartial terms to all

who seek its assistance. Equal protection of the

laws is not achieved through indiscriminate

imposition of inequalities. Respect for this prin-

ciple explains why laws singling out a certain

class of citizens for disfavored legal status or

general hardships are rare. A law declaring that

in general it shall be more difficult for one

20

group of citizens than for all others to seek aid

from the government is itself a denial of equal

protection of the laws in the most literal sense.

The guaranty of equal protection of the laws is a

pledge of the protection of equal laws.

(Internal quotation marks and citations omitted.) Like the

provision invalidated by this Court in Romer v. Evans,

Article 28 “identifies persons by a single trait” (foreign

language speech) and makes it “more difficult for one

group of citizens than for all others to seek aid from the

government.” Id. This regime clearly discriminates based

‘on categories of speakers and thus violates basic equal

protection requirements.

In summary, as the Arizona Supreme Court con-

cluded, Article 28 defies the equal protection component

of free speech. A class of individuals — foreign language

speakers — specifically identified as being within the

ambit of Fourteenth Amendment protection by the

framers of the Amendment is denied the right to commu-

nicate in the manner that its English-speaking counter-

parts freely enjoy. This is the very type of class-specific

legal impediment that the Fourteenth Amendment was

designed to abolish.

C. Polylingualism and the Development of Modern

Free Speech Jurisprudence.

The American tradition of linguistic tolerance is

reflected in the foundations of this Court’s free speech

jurisprudence. In the case that many scholars identify as

the starting point of modern First Amendment law,

Abrams v. United States, 250 U.S. 616, 620 (1920), the Court

considered foreign language speech (Yiddish) and implic-

itly refused to distinguish between English and foreign

language speech for First Amendment purposes. In

Abrams, several Russian Jewish emigres challenged their

convictions under the Espionage Act of 1917 as violative

of their free speech rights based on the fact that the only

21

evidence of “espionage” consisted of the distribution of

leaflets in English and Yiddish condemning America’s

involvement in the Russian Revolution.

Although the Court translated and considered the

Yiddish leaflet in Abrams, both the majority opinion by

Justice Clarke and the dissenting opinion by Justice

Holmes treat the two languages as standing on equal

footing for First Amendment purposes. Not only does

Justice Holmes not suggest that foreign language speech

regarding matters of public concern falls outside the

scope of First Amendment protection - to the contrary -

he concludes that it is virtually inviolate:

In this case sentences of twenty years imprison-

ment have been imposed for the publishing of

two leaflets that I believe the defendants had

just as much right to publish as the Government

has to publish the Constitution of the United

States now vainly invoked by them. ins

Abrams, 250 U.S. at 629 (1920). Moreover, by equating an

individual’s right to criticize the government with the

government's right to print the laws, Justice Holmes’

dissent reflects the theory of popular sovereignty

expressly embraced by this Court forty years later in New

York Times v. Sullivan, 376 U.S. 254, 273-277 (1963).

This Court also considered foreign language speech

in the free speech context in Frohwerk v. United States, 249

U.S. 616 (1919), and Schaefer v. United States, 251 U.S. 466

(1922), both of which involved the question of whether

speech published in three German-language newspapers

- the Missouri Staats Zeitung, the Philadelphia Tageblatt,

and the Philadelphia Sonntagsblatt — violated the Espionage

Act of 1918. Although the Court translated the speech in

question from German to English in both cases, it did not

state or suggest that foreign language speech did not

constitute “speech” under the First Amendment. In fact,

in his dissenting opinion in Schaefer, Justice. Brandeis

argued that the majority’s conclusion that Schaefer’s

22

speech was “seditious” was based on an inaccurate trans-

lation of the original German text, which he printed

alongside the English version, noting critically that

“{e]vidently both the jury and the trial judge failed to

examine the German original.” 251 U.S. at 487, 488

(1922).12

This Court’s implicit, but uniform refusal to discrimi-

nate against foreign language speech in this important

trilogy of free speech cases was not accidental. Discrimi-

nation against the German language was both well-

‘known and rampant during the World War I era. As

Margaret Blanchard writes:

In fact, [during the first world war] a whole

subculture in American Society was virtually

destroyed because of irrational fears. . . . [T]he

American people were so frightened of and so

enraged at anything German that almost all ves-

tiges of that heritage were systematically elimi-

nated in the United States. Individuals and

communities with German sounding names

anglicized them in order to avoid community-

sponsored retribution. The German language

was all but outlawed; German music could no

longer be played; and sauerkraut was renamed

liberty cabbage. The German-language press,

which probably was the strongest of the ethnic

presses at the start of the war, suffered terribly.

No German newspaper was suppressed during

the war, but several did lose second-class mail-

ing privileges, or, in a few cases, all access to the

11 Justice Brandeis’ use of German in his dissent would

have violated Article 28, which expressly applies to the

judiciary and requires that all government “orders” be in

English and “in no other 4anguage.” Ariz. Const. Art. XXVIII,

§§ 1(3) and 3(1)(a).

23

mail. Most of them lost subscribers and adver-

tisers and were as permanently crippled as the

community they had served.

M. Blanchard, Revolutionary Sparks 91 (1992). The pattern

of discrimination against foreign language speech during

the World War I era underscores the importance of the

Court’s failure to subject it to reduced protection in

Abrams, Frohwerk, and Schaefer.

The First Amendment implications of proscriptions

of foreign language speech during the World War I era

were not ignored by the scholarly community. In his

classic examination of free speech, Free Speech in the

United States, Professoz Zechariah Chafee rejects any dis-

tinction between English and other languages for First

Amendment purposes and notes that:

Even if it can be said the Blackstonian test

{regarding prior restraints] does not forbid the

government to control its own machinery, [for

example,] the post-office, it is clear to every

newspaper [advocating violent revolution] that

its exclusion from the mails is equivalent to an

absolute censorship. The same considerations

apply to a censorship of the foreign language

press. ...

Z. Chafee, Free Speech in the United States 169 (1941). In

concluding that any problems arising from foreign lan-

guage speech should be resolved non-coercively, Pro-

fessor Chafee argued:

Just as the merits of free_trade in goods are

lessened if the normal processes of competition

are checked by monopolies and dumping, so

free trade in ideas requires that the barriers to

the interchange of argument presented by illit-

eracy and foreign languages shall somehow be

broken down. Aliens cannot be forced to love

this country. They will love it rather because it

does not employ force except against obviously

“rongful overt acts. They will love it as the

24

home of wise tolerance, of confidence in its own

strength and freedom.

Id. at 240. These remarks reflect the principle of tolerance

which predicates free speech jurisprudence. See generally,

L. Bollinger, The Tolerant Society (1986). As this Court

acknowledged in Meyer v. Nebraska, 262 U.S. 390, 401

(1923): |

That the State may do much, go very far indeed,

in order to improve the quality of its citizens,

physically, mentally, and morally, is clear; but

the individual has certain fundamental rights

which must be respected. The protection of the

Constitution extends to all, to those who speak

other languages, as well as to those born with

English on their tongue. Perhaps it would be

highly advantageous if all had a ready under-

standing of our ordinary speech, but this cannot

be coerced by methods which conflict with the

Constitution - a desirable end cannot be pro-

moted by prohibited means.

See also Bartels v. Iowa, 262 U.S. 404 (1923), Nebraska District

of Evangelical Lutheran Synod v. McKelvie, 262 U.S. 404, 410

(1923), Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926), and

Farrington v. Tokushige, 273 U.S. 284 (1927) (all invalidating

foreign language proscriptions as unconstitutional).!?

12 Although Meyer and its progeny were decided under the

due process and equal protection clauses of the Fourteenth

Amendment, the decisions have important free speech

implications. Justice Brandeis — who joined the majority opinion

in Meyer without separate comment - later indicated to Felix

Frankfurter that he based his decision on the “right to . . . utter

speech.” M. Urofsky, “The Brandeis-Frankfurter

Conversations,” 1985 Sup. Ct. Rev. 299, 320. Professor Chafee

also analyzed Meyer under the rubric of free speech. See Z.

Chafee, Free Speech in the United States 552 (1941). This Court has

also characterized Meyer as a First Amendment case. See

Griswold v. Connecticut, 381 U.S. 475, 482 (1965).

25

Whether considered under the First or Fourteenth

Amendments, Meyer and its progeny collectively teach

that language proscriptions suppress free speech. As this

Court observed in a substantively similar context:

We cannot indulge the facile assumption that

one can forbid particular words without also

running a substantial risk of suppressing ideas

in the process. Indeed, governments might soon

seize upon the censorship of particular words as

a convenient guise for banning the expressing of

unpopular views. We have been able, as noted

above, to discern little social benefit that might

result from running the risk of opening the door

to such grave results.

Cohen v. California, 403 U.S. 15, 24 (1971). If the state

cannot lawfully proscribe the display of profanity in the

courthouse, a fortiori it cannot prohibit the non-disruptive

use of foreign languages in the statehouse. Elected offi-

cials must maintain the right to communicate with the

public by means of the most effective tools available.

D. “Government Speech” and the Free Speech Rights

of Elected Officials. :

The free speech rights of elected officials are funda-

mental to representative government under the Constitu-

tion. These rights predated the free speech rights of

members of the public at large in Anglo-American juris-

prudence and served as the conceptual model for the

public right of “the freedom of speech” guaranteed by the

First Amendment. As Leonard Levy explains:

The phrase “freedom of speech” originated in

Anglo-American history during the struggle of

Parliament to achieve the privilege of free

debate. . . . Until the last quarter of the eigh-

teenth century, freedom of speech referred not

to a civil right but primarily to a parliamentary

26

right: the legislator’s immunity from punish-

ment for anything said by him in his official

capacity during a legislative session.

L. Levy, The Emergence of a Free Press 3 (1983). See also Z.

Chafee, Free Speech in the United States 552 (1941) (“The

earliest form of freedom of speech secured by the English

Parliament was the immunity of its members from

responsibility to the King or in the courts for what they

said in debates”).

The American Revolution transformed the parlia-

mentary privilege into “the freedom of speech” recog-

nized by the First Amendment. See generally L. Levy, The

Emergence of a Free Press 309-322 (1985). The framers of

the Constitution believed that the legitimacy of govern-

ment rested on the “consent of the governed.” As James

Madison observed when arguing the unconstitutionality

of the Alien and Sedition Acts, under the Constitution

“[t]he people, not the government, possess absolute sov-

ereignty.” 4 Elliot's Debates on the Adoption of the Federal

Constitution 569-570 (1845). Thus, although historically

“the freedom of speech” derived from and reflected the

free speech rights of elected officials, this pattern was

reversed by the American theory of popular sovereignty

under which the free speech rights of elected officials

derive from and reflect the free speech rights of the

people at large. See A. Meiklejohn, Political Freedom: The

Constitutional Powers of the People 36 (1960).

When the people elected representatives to accom-

plish their collective purposes in government, the speech

and debate of those representatives were to reflect the

speech and debate of the people whom they represented.

Jack Rakove observes that:

If one maxim reflected Americans’ ideas of rep-

resentation .. . it was the belief that a represen-

tative assembly “should be in miniature an exact

portrait of the people at large. It should think,

feel, reason and act like them.”

27

J. Rakove, Original Meanings 203 (1996), quoting J.

Adams, Thoughts on Government (1776). This definition of

representation enjoyed a consensus at the Constitutional

Convention. James Wilson declared that “[t]he Legisla-

ture ought to be the most exact transcript of the whole

society.” Id. George Mason proceeded to give what

Edmund Morgan describes as “the standard American

meaning of representation”:

The requisites in actual representation are that

the Representatives should sympathize with

their constituents; should think, as they think

and feel as they feel . . . so much so, that even

the diseases of the people should be represented

— if not, how are they to be cured?

Quoted in E. Morgan, Inventing the People 272 (1988). This

theory of representation provided the “consent” that

defined republican government under the Constitution.

As Professor Bailyn explains:

Where government was such an accurate mirror

of the people, sensitively reflecting their desires

and feelings, consent was a continuous, every-

day process. In effect the people were present

through their representatives, and were them-

selves, step by step and point by point, acting in

the conduct of public affairs. No longer merely

an ultimate check on government, they were in

some sense the government. Government had

no separate existence apart from them; it was by

the people as well as for the people; it gained its

authority from their continuous consent.

B. Bailyn, The Ideological Origins of the American Revolution

173 (1967). Of course, this theory of consensual represen-

tation was contingent upon the ability of the elected to

freely converse with their electors, in English or any

other tongue.

Although the principle of freedom of speech inhered

in the original constitutional structure based on the doc-

trine of popular sovereignty, it found its richest textual

28

expression in the First Amendment. The Amendment

“sounds in structure and focuses . . . on the representa-

tional linkage between Congress and its constituents.” A.

Amar, The Bill of Rights 20 (1998). The Amendment

(among other things) protects the deliberative process

attendant to representative democracy. See generally A.

Meiklejohn, Political Freedom: The Constitutional Powers of

the People (1960). As this Court stated in New York Times v.

Sullivan, 376 U.S. 254, 269 (1964):

The general proposition that freedom of expres-

sion upon public questions is secured by the

First Amendment has long been settled by our

decisions. The contitutional safeguard, we have

said, was fashioned to assure unfettered inter-

change of ideas for the bringing about of politi-

cal and social changes by the people. The

maintenance of the opportunity for free political ©

discussion to the end that government be

responsive to the will of the people and that ~

changes muy be obtained by lawful means, an

opportunity essential to the security of the

Republic, is a fundamental principle of our con-

stitutional system. . . . The First Amendment,

said Judge Learned Hand, “presupposes that

right conclusions are more likely to be gathered

out of a multitude of tongues, than through any

kind of authoritative selections. To many this is,

and always will be, folly; but we have staked

upon it our all.”

(Citations and internal quotation marks omitted.)

The application of these free speech principles to

elected officials is illustrated by this Court’s unanimous

opinion in Bond v. Floyd, 385 U.S. 116 (1966). In Bond the

Court considered a First Amendment challenge to the

Georgia House of Representatives’ refusal to seat Julian

Bond upon his lawful election to office based on his

public criticism of the Vietnam War: In invalidating the

Georgia House’s exclusion of Mr. Bond, the Court stated

29

that the First Amendment requires that elected officials

“be given the widest latitude to express their views of

policy” and that elected officials were entitled to as much

protection under the First Amendment as members of the

public at large. Id. at 136 (emphasis added.) This “wide

latitude” necessarily includes the right of elected officials

to choose the language by which to communicate with

their constituents. This is especially true when some of

those constituents are unable to communicate effectively

in English.

Bond v. Floyd also illustrates the error of petitioners’

contention that Article 28 is justified by “[t]he govern-

ment’s rights to control its own speech.” Petition 15. This

contention is erroneous because it is based on a false

assumption that “the government” established by the

Constitution is monolithic. In fact, based on the separa-

tion of powers, federalism, and multi-member legisla-

tures, government is intentionally fragmented under our

constitutional system. Thus, as Bond v. Floyd illustrates,

the “government” cannot violate the free speech rights of

any constituent part of government.

Accordingly, petitioners’ assertions regarding gov-

ernment speech are predicated on a theory of sovereignty

that is antithetical to the American Constitutional tradi-

tion.

E. This case does not involve circumstances vyorthy of

certiorari.

The resolution of this case was contingent on a

uniquely restrictive state enactment which was authori-

tatively construed by the State’s highest tribunal and

which the State itself has elected not to defend. Although

this case is important to the parties to this proceeding, the

Arizona Supreme Court’s judgment resolving the case

does not establish rules of general applicability to our

nation’s legal system. Instead, the Arizona Supreme

Court’s decision reflects six years of painstaking efforts

30

by a state court system to apply well-settled constitu-

tional principles to a peculiar and complicated set of facts

impacting a single locality. Reflecting the unusual nature

of both the language of Article 28 and the underlying

material facts, no inconsistency with the precedents of

this Court has been shown.

Given the fact that (at least) twenty two other states

have enacted laws declaring English as their official lan-

guage, if this issue is really as worthy of certiorari as the

petitioners claim, other courts will consider the issue and

provide this Court with a more complete record by which

to consider the question. The absence of any litigation on

this issue arising outside of Arizona when such laws have

been on the books for years demonstrates the unique

nature of Article 28 and its purely local impact. The

petition merely seeks reversal of a narrowly tailored state

court decision adverse only to petitioners and is thus

inappropriate for certiorari.

CONCLUSION

For the foregoing reasons, this Court should deny the

Petition for a Writ of Certiorari.

Respectfully submitted,

STEPHEN G. Montoya

Counsel of Record

Avsert M. FLores

Of Counsel

337 North Fourth Avenue

Phoenix, Arizona 85003-1572

(602) 256-6718

Counsel for Respondents

November 23, 1998