Yniguez

Opinion by Judge REINHARDT; Concurrence by Judge BRUNETTI; Special Concurrence by Judge REINHARDT; Dissent by Judge FERNANDEZ; Concurrence to Dissent by Chief Judge WALLACE; Dissent by Judge KOZINSKI.

These consolidated appeals require us to consider an important area of constitutional law, rarely reexamined since a series of eases in the 1920s in which the Supreme Court struck down laws restricting the use of non-English languages. See Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923); Bartels v. Iowa, 262 U.S. 404 , 43 S.Ct. 628 , 67 L.Ed. 1047 (1923); Yu Cong Eng v. Trinidad, 271 U.S. 500 , 46 S.Ct. 619 , 70 L.Ed. 1059 (1926); Farrington v. Tokushige, 273 U.S. 284 , 47 S.Ct. 406 , 71 L.Ed. 646 (1927). Here, once again, the state has chosen to use its regulatory powers to try to require the exclusive use of the English language.

Specifically at issue in this case is the constitutionality of Article XXVIII of the Arizona Constitution. Article XXVIII provides, inter alia, that English is the official language of the state of Arizona, and that the state and its political subdivisions — including all government officials and employees performing government…

with whom Chief Judge WALLACE and Judges HALL and KLEINFELD join, dissenting:

The State of Arizona, through its initiative process, added Article XXVIII to the State’s constitution. That Article made English the official language of “the public schools and all government functions and actions.” Ariz. Const, art. XXVIII, § 1(2). It also directed that the State and all of its political subdivisions shall “act in English and in no other language,” except in a handful of instances. Id. at § 3. The Article applies to “all government officials and employees during the performance of government business.” Id. at § l(3)(a)(iv). Maria-Kelley F. Yniguez 1 does not like Article XXVIII as a matter of policy. I can understand and sympathize with that. It is when she goes beyond the realm of policy and seeks to show that the Article violates the First Amendment to the United States Constitution that she goes astray. It is there that we part company.

She, in effect, proceeds from the fundamentally flawed assumption that while performing government business an official 2 or employee has much the same freedom as a private citizen. That leads her into a thicket of incorrect assumptions and…

concurring:

I fully join Judge Fernandez’s dissent. I add the following:

Yniguez’s claim that the Article regulates speech, not merely the expressive mode of speech, is dubious. The difficulties of Yni-guez’s claim become apparent when one tries to identify exactly what speech or message the Article suppresses. If Yniguez is able to identify to us in English the messages that the Article suppresses, she would thereby communicate those messages which she claims only Spanish can convey. In other words, by stating in English the speech or message which the Article restricts, Yniguez undermines her claim that her message can only be expressed in Spanish. Saddled with this problem, the majority, therefore, never identifies the content of the speech which the Article suppresses and writes vaguely about the Article’s restrictions.

It is untenable for the majority to hold that the Article restricts pure speech yet fail to identify suppressed messages. This difficulty strengthens the undeniable conclusion that the Article regulates the mode of speech, not pure speech. This conclusion *960 should end the matter, for mere regulation of government employees’ mode of speech does not…

with whom Judge KLEINFELD joins, dissenting:

Government has no mouth, it has no hands or feet; it speaks and acts through people. Government employees must do what the state can’t do for itself because it lacks corporeal existence; in a real sense, they are the state. This case is about whether state employees may arrest the gears of government by refusing to say or do what the state chooses to have said or done.

The majority says yes. Or, to be precise, it says the employees may force their employer into federal court and make it prove, to the exacting standard of the First Amendment, that its interest in enforcing its laws outweighs their right not to make statements they find objectionable. This is an extraordinary ruling with explosive and far-reaching consequences. Almost everything government does involves a communication of some sort and those charged with carrying out government functions sometimes disagree *961 with what they are ordered to say or do. Before today, however, it was understood that government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.

Today’s decision rends this…

concurring:

I agree that Article XXVIII of the Arizona Constitution is facially invalid and I join in the majority opinion. I write separately to emphasize that the article’s unconstitutional effect on Arizona’s elected officials would alone be sufficient reason to strike the provision down.

I.

As indicated in the majority opinion, the government employees affected by the article’s unconstitutional limitations outnumber the elected officials affected. However, the extent of the damage caused by Article XXVIII’s restrictions on elected officials is not diminished by the fact that their population is smaller than that of government employees.

Article XXVIII offends the First Amendment not merely because it attempts to regulate ordinary political speech, but because it attempts to manipulate the political process by regulating the speech of elected officials. Freedom of speech is the foundation of our democratic process, and the language restrictions of Article XXVTII stifle informative inquiry and advocacy by elected officials. By restricting the free communication of ideas between elected officials and the people they serve, Article XXVIII threatens the very survival of our…

concurring specially:

Judge Kozinski’s separate dissent requires separate comment. In the latest chapter of his crusade against the use of languages other than English in public, it is what Judge Kozinski does not say that is most revealing. My learned colleague, who is surely expert in these matters by now, ignores completely the constitutional interests of the numerous non-English speakers. There is nothing novel about the fact that the interests of the audience as well as of the speaker are protected by the First Amendment. Yet Judge Kozin-ski does not even mention, let alone discuss Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 , 96 S.Ct. 1817 , 48 L.Ed.2d 346 (1976), or United States v. National Treasury Employees Union, — U.S. -, 115 S.Ct. 1003 , 130 L.Ed.2d 964 (1995), decisions that make it clear that in dealing with First Amendment questions we must consider the needs of the audience. In fact, the constitutional interests of the public are at their height when its members seek information of vital importance from the government. In the end, then, it is the interests of non-English speaking persons, often poor and uneducated, that are…