Throughout history, discriminatory appeals to the public have been exploited by demagogues and dictators in order to concentrate power predicated on prejudice. As recent events have revealed, creating scapegoats, cultivating resentment, and capitalizing on fear and hate all remain unfortunately familiar marks on the political roadmap. Discriminatory appeals, particularly those rooted in Islamophobia, remain a significant problem in American discourse. However, suppressing or judicially regulating this speech is both constitutionally forbidden and inherently antidemocratic. While the First Amendment shields harmful appeals to discrimination, fear, and hate by political figures, this does not mean that courts should stand idly by when these discriminatory appeals manifest in illicitly motivated policies. Indeed, the First Amendment protects political speech as strongly as it does because of the importance and weight this speech carries. Accordingly, when individuals possessing sole decision-making power implement policies that appear to follow from discriminatory statements, such as President Trump’s “Muslim ban,” courts should presume that such discriminatory motives serve as the bases for these policies. In these special instances, courts should apply strict scrutiny to “smoke out” illicit motives, rather than the Arlington Heights test used to assess the motivating factors behind policies implemented by multimember bodies whose views are harder to disaggregate and discern. Such an approach will, in addition to preventing illicitly motivated policies from working discriminatory effects, disincentivize political figures from seeking power through discriminatory appeals by giving their speech the weight the First Amendment affords it, but no more.
To read this Note, please click here: Political and Judicial Incorrectness: The Case for Modifying the Arlington Heights Test to Disincentivize Discriminatory Appeals
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