Author: Helen Norton


Value Democracy and Government Speech

Corey Brettschneider’s theory of value democracy urges that “the state should simultaneously protect hateful viewpoints in its coercive capacity and criticize them in its expressive capacity.” Although he is primarily interested in political theory rather than constitutional law, Corey’s approach nonetheless invites engagement with the Supreme Court’s emerging government speech doctrine even while he builds on it. Under this doctrine, the Court treats government’s own speech as exempt from free speech clause scrutiny. This approach leaves the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf, with political accountability (rather than the free speech clause) as the recourse available to those unhappy with their government’s expressive choices. But Corey finds the government speech doctrine too “often couched in excessively value-neutral terms. A value-neutral approach would allow the state to promote whatever message it wishes, even if it expresses a message directly opposing the reasons for rights. In contrast to a value-neutral theory of state expression, democratic persuasion is distinctly non-neutral, and calls for the state to express a message that promotes the values of free and equal citizenship. This is an obligation, not distinct from rights, but that comes from the obligation to promote the reason for rights.” In other words, while the Court’s approach simply recognizes that government has the expressive power to speak, Corey insists that government has an affirmative duty to speak in a certain way (at least on certain matters).

Because I have written in the past about what government should not say (e.g., exploring whether and when we might understand government’s hateful speech to violate the equal protection clause), Corey’s theory is especially interesting to me because he focuses instead on what government should say. As a matter of political theory, he maintains that government has a duty to condemn hateful speech and to seek to persuade citizens to embrace equality values as their own. Even so, he urges that “the state should not seek to transform all inegalitarian beliefs, but only those that challenge the idea of free and equal citizenship.” This, of course, rests on the contestable premise that we can meaningfully parse speech that denies equal citizenship from that which does not. And although I understand why Corey is more interested in examining the state’s duty to speak than limits on that speech (to be sure, he notes establishment clause and perhaps other constraints on government expression), I still feel that the latter issue deserves greater attention in a discussion of this topic.

For example, a number of scholars have proposed various free speech clause limits to the government speech doctrine – especially in situations where the line between government persuasion and coercion is faintly drawn — but as yet the Court remains unmoved. I’m particularly troubled that the Court has failed to insist that the government affirmatively identify itself as the source of contested speech as a condition of asserting the government speech defense to free speech clause challenges. Indeed, it seems to me that government speech is most valuable and least dangerous when the public can identify the government as speaker, and thus is empowered to hold government politically accountable for its expressive choices.

To be sure, determining expression’s governmental source is generally not a problem with respect to the collective speech (such as a report, proclamation, or resolution) of a government agency or body. But some situations raise greater challenges, as is the case with the expression of individual government officials who also retain free speech rights of their own. For example, under what circumstances does the Constitution permit — or should value democracy allow — a government employer to punish its employee for speech inconsistent with the government’s own expressive choices? Corey maintains that public officials have an affirmative duty to promulgate the values of free and equal citizenship. More specifically, he emphasizes “the distinct importance of public officials’ following through on their public commitments and pronouncements,” and applies this principle to justify a public school’s firing of a teacher who publicly advocates the Klan’s views. I’ve suggested a similar conclusion in certain narrow circumstances from a value-neutral perspective, urging that the speech of public employees who serve as the voice and/or the face of the government potentially poses such grave threats to government expression to justify government’s control of their communications. Either approach, however, requires that we take on the hard job of determining which government jobs trigger such expectations and when such employees’ speech truly threatens the government’s expressive commitments. To this end, I would have liked to have seen Corey grapple with possibilities less extreme than the Klan in the public schools.

Despite the questions I’ve sketched out here, I remain largely sympathetic to Corey’s efforts to reconcile our often-competing commitments to free speech and equality. His is an ambitious project – and also an optimistic one. I’ll close by suggesting that Corey’s case might have been made even stronger with more evidence in support of such optimism – i.e., when and under what circumstances are government’s efforts at democratic persuasion most likely to be successful in persuading folks of the values of free and equal citizenship?




The Fight over Government “Propaganda”

Earlier I blogged about controversies over government speech on contested issue campaigns. Critics of such government speech express concern that government’s voice threatens to coerce voters’ behavior and to drown out or otherwise unfairly disadvantage dissenting speakers.

Although most of these debates have centered on government expression that opposes or endorses ballot measures pending before the public, some critics also object to the government’s speech to the public that urges a position on contested policy issues to be decided by a legislature. As just one example, the Fourth Circuit recently considered a constitutional challenge to a local school board’s advocacy on proposed school voucher legislation pending before the state legislature. Among other things, the plaintiff there objected to the school board’s voter-directed speech opposing the bill, arguing for First Amendment limits on a government body’s advocacy to voters on a matter to be decided by the state legislature. The Fourth Circuit rejected his constitutional claim (appropriately, in my opinion, for reasons I describe in a recent paper).

Congress has similarly debated the propriety of executive branch officials’ and agencies’ advocacy to the public on matters to be decided by the national legislature. There too controversy swirls not only over the appropriate role of government – and when, if ever, that role demands neutrality or silence – but also over whether and when government speech poses dangers of coercion and unfairness.  One often-articulated, but very broad view, characterizes government “propaganda” as any effort by the government to persuade its public listeners. Others are instead troubled only when the government’s persuasive efforts are covert, misleading, or monopolistic.

In response to various concerns about the potential dangers of such expression, Congress has regulated government “propaganda” on a number of occasions. As one example, since 1951 each Congress has enacted an appropriations rider that entirely bars federal agencies from unauthorized expenditures to engage in “publicity or propaganda.” Never, however, has Congress defined this statutory term.

This proposal was initially spurred by members of Congress unhappy with the Eisenhower Administration’s efforts to generate public support for its proposed health care legislation. In particular, the prohibition’s sponsors objected strenuously to, and characterized as potentially totalitarian, public speeches and other materials in support of the Administration’s bill by Oscar Ewing, the head of the U.S. Federal Security Administration (the federal agency that served as the precursor to today’s Department of Health and Human Services). Ewing’s advocacy triggered a debate over the value and danger of executive branch speech that remains unresolved today.

More specifically, congressional supporters of the propaganda ban objected to executive branch officials’ advocacy to the public on an issue pending before the legislative branch as not only potentially coercive of public opinion but also offensive to the appropriate separation of powers. The original congressional debate over the proposed rider thus centered on whether a prohibition on undefined propaganda would interfere with the government’s responsibility to inform the public about its programs, or whether it instead would simply prevent the government from adopting what some characterized as coercive “Soviet-style” governance tactics. The latter view prevailed, and the propaganda ban passed without any definition of the prohibited speech.   The ban has remained in place as an appropriations rider throughout the 60 years since its initial adoption.

Despite this longstanding ban, executive branch agencies and officials of course regularly continue to speak to the public about a wide variety of matters, legislative and otherwise. Indeed, the office charged with monitoring the ban’s enforcement – the Government Accountability Office (GAO) – has emphasized government expression’s great instrumental value to the public, and has thus interpreted the ban narrowly and identified violations very rarely.

Later developments, however, renewed attention to the propaganda ban, its definitional deficiencies, and its lack of enforcement. Examples include the Department of Education’s contract with newspaper columnists to produce op-eds supporting the Bush Administration’s “No Child Left Behind” initiative without disclosing the Department’s sponsorship, as well as that Administration’s briefing of and other close involvement with retired military personnel, who then appeared on television as private military analysts offering their view of the war in Iraq and Afghanistan. Those controversies triggered new (but to date unsuccessful) congressional efforts not only to define prohibited government propaganda for the first time, but to define it very broadly.

My paper argues that broad prohibitions on government speech are as unwise as they are unrealistic, concluding that transparently governmental speech – i.e., speech that the public can identify as governmental in origin and thus for which the government can be held politically accountable – generally furthers, rather than frustrates, free speech clause values (and I would put Ewing’s speeches and materials in this category). More appropriate, in my opinion, are targeted restrictions to curb specific abuses. Along these lines, Congress could – and, in my opinion, should — encourage greater executive branch transparency by amending the longstanding propaganda ban specifically to prohibit advocacy in which the government fails to identify itself as the speaker and to provide meaningful enforcement mechanisms to punish and deter such covert governmental speech.


If You Want Folks to Accept Your Decision, Don’t Pretend That It Was Easy

In an article forthcoming in the Journal of Empirical Legal Studies (Lay Judgments of Judicial Decisionmaking), Dan Simon and Nicholas Scurich asked study participants to evaluate the “acceptability,” or legitimacy, of various judicial decisions. Not surprisingly, they found that “the acceptability of the court’s decision was highly contingent on whether the court’s decision was congruent with the participant’s preferred outcome” and that participants were considerably more attentive to the court’s proffered reasoning when the decision conflicted with their preferred outcome.

But what I found most interesting was the study’s comparison of participants’ reactions to opinions “that provide unequivocal support for just one side of the dispute” with their reactions to opinions that “admit to the complexity and under-determinacy of the legal reasons en route to determining which of the vying positions is the stronger of the two.” More specifically, the authors found that “decisions that were accompanied by multiple two-sided reasons were rated most acceptable; decisions accompanied by multiple one-sided reasons were rated similarly acceptable to decisions that had no reasons at all; and decisions accompanied by a single reason received the lowest ratings of acceptability.” In short, participants were most likely to accept a decision as legitimate when the court acknowledged the difficulty of the underlying problem.


Justice Brennan’s Change of Heart on Government Campaign Speech

One of my recent projects explores longstanding controversies over government speech on contested ballot and legislature campaigns – and when, if ever, such speech is sufficiently dangerous to justify a departure from the general rule that government’s own speech is insulated from free speech clause review.

Governmental speech on issue (as opposed to candidate) campaigns takes a wide variety of forms, and may be delivered by a broad range of government speakers. Examples include not only government officials’ statements and press releases critical or supportive of pending ballot or legislative measures, but also government agencies’ reports and analyses, as well as flyers, pamphlets, newsletter articles, online postings, and print and broadcast advertisements communicating their view of such measures to the public. Controversies over such expression include those over the Eisenhower Administration’s advocacy on behalf of its proposed health care legislation, state human rights agencies’ communications in support of the Equal Rights Amendment, and local school boards’ expressive support for school bond measures. Such debates still rage today: The Fourth Circuit recently considered a First Amendment challenge to a public school board’s communications to potential voters in opposition to pending school voucher legislation, and a sharply divided Sixth Circuit rejected a similar challenge to a town’s use of public funds to express its position on ballot measures related to the local fire department’s financing and organization.

Critics of government speech on issue campaigns generally voice one or both of two objections. Some urge that government should not seek to persuade the public on such matters because its status as sovereign means that its voice will inevitably coerce listeners’ beliefs. Others also (or instead) argue that government’s voice threatens to drown out or otherwise unfairly disadvantage dissenting speakers.

In writing this paper, as I have found with past projects, I seemed to stumble across the most interesting stuff while looking for something else.  Justice Brennan’s change of heart on this issue is one example.

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Government’s Racist Speech

This summer I finally got around to Eric Foner’s excellent Reconstruction: America’s Unfinished Revolution, which painstakingly details not only the myriad lost opportunities to address slavery’s continuing legacy in the form of race discrimination following the Civil War, but also the emerging conflicts over the appropriate division of power between federal and state governments that have yet to be fully resolved today.

Because one of my current projects deals with the equal protection implications—if any – of government speech, I was especially struck by Professor Foner’s description of President Andrew Johnson’s 1867 annual message to Congress as “probably the most blatantly racist pronouncement ever to appear in an official state paper of an American President.” In that message, Foner quotes Johnson as characterizing blacks as possessing less “capacity for government than any other race of people. No independent government of any form has ever been successful in their hands. On the contrary, wherever they have been left to their own devices they have shown a constant tendency to relapse into barbarism.”

Looking beyond Presidential speech to government speech more generally, surely there are challengers for the title of most racist government speech ever.  Indeed, Foner himself later identifies a competitor: a report by a Reconstruction-era Florida state commission that “praised slavery as a ‘benign’ institution deficient only in its inadequate regulation of black sexual behavior.”   Any other nominations?

To narrow the universe of eligible “government speech,” note that I’m thinking only of speech (as opposed to the government’s exercise of its coercive power —  e.g., de jure segregation) by those empowered to speak for a governmental branch or other government body — such as an agency’s report, a legislature’s resolution, or an executive’s proclamation — rather than racist speech by an individual legislator or official expressing only his or her own personal views.


Summer Reading: Arguing About Slavery and The Lost Internment

Earlier this week I blogged about the Supreme Court’s recent (and rare) Petition Clause decision, and earlier still I blogged about recommended summer reading.  Combining the two reminds me that one of the best books I’ve ever read on any topic deals with petitions to the government for the redress of grievances in their most classic form. Arguing About Slavery, by William Lee Miller, documents John Quincy Adams’ long and lonely fight in the 1830s and 1840s to introduce citizen petitions calling for Congress to consider the abolition of slavery within the District of Columbia.  His efforts in support of the petitioners triggered proslavery members of Congress to enact a gag rule that essentially prohibited talking about the abolition of slavery on the floor of Congress (notwithstanding the petition, free speech, and speech and debate clauses).  Professor Miller concludes that the proslavery forces’ overreaction to the petitions eventually strengthened the abolitionists’ hand by giving them a particularly high-profile platform for arguing about injustice as both a moral and political matter. (In A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142 (1986), Stephen Higginson later assigned this particular episode the blame for the Court’s contemporary conflation of free speech and petition clause rights – a development now bemoaned by Justice Scalia in his partial dissent to last month’s petition clause decision). For those who still have room on their summer reading lists, Miller’s book offers a great read by a terrific writer exploring an important yet largely overlooked historical episode.

While I’m thinking about important yet largely overlooked historical episodes, you might also want to check out G. Edward White’s essay in the most recent Green Bag. In The Lost Internment, Professor White narrates “one of the most bizarre and chaotic forcible relocations of indigenous peoples in American history:” the U.S. government’s internment of Aleutian islanders during World War II in response to Japan’s seizure of one of the Aleutian Islands and its anticipated plans to take more.


The Petition Clause Gets No Love

In last month’s decision in Borough of Duryea v. Guarnieri, the Supreme Court considered the relatively rare claim alleging a violation of the First Amendment’s petition clause, which protects “the right of the people . . . to petition the government for a redress of grievances.” Rather than interpret the petition clause to offer protections independent of those under the free speech clause, Justice Kennedy’s majority opinion instead conflated the two clauses in a way that deprives public employees of meaningful First Amendment rights. Interestingly, Justice Scalia’s partial dissent offers a more promising approach to protecting public employees from retaliation while recognizing governmental employers’ legitimate efficiency concerns.

The plaintiff there had filed a union grievance successfully challenging his firing as the borough’s police chief. Upon the chief’s reinstatement, the borough’s council imposed a number of directives constraining his authority in a variety of ways. Chief Guarnieri then filed suit, claiming that the council did so to retaliate against him for filing a grievance, and thus violated the petition clause. While that suit was pending, the council denied his request for $338 in overtime pay (the Department of Labor later found that he was entitled to the overtime); the chief then amended his original complaint to allege that that denial came in retaliation for his lawsuit and thus also violated his petition clause rights.

Chief Guarnieri’s disputes with the council did not appear to invoke broader matters of interest to the general public (as might have been the case, for example, had he filed charges of official corruption), and instead involved private grievances about the borough’s handling of personnel matters. Because the Supreme Court has long held that the free speech clause protects public employees’ speech only on matters of public, rather than private, concern (so long as the value of the employee’s speech outweighs any detrimental impact on the government’s efficient workplace operations — and even then only when the employee’s speech is not pursuant to her official duties), any free speech clause claim would have likely failed. Guarnieri relied instead on the petition clause.

At issue before the Supreme Court was whether the test for assessing public employees’ petition clause claims should precisely mirror that for assessing their claims under the free speech clause. In other words, should the petition clause be interpreted to protect only public employee petitions that relate to a matter of public concern (and in which the public interest in the speech outweighs the governmental employer’s interest in order and discipline), or are there any circumstances under which the petition clause protects public employees from retaliation when they submit petitions on matters of private concern?

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Summer Reading: Last Call — The Rise and Fall of Prohibition

A long holiday weekend is coming up, and I just might have a beer . . . which reminds me of Daniel Okrent’s very enjoyable and illuminating Last Call: The Rise and Fall of Prohibition. It’s a terrific read, full of unlikely political alliances (e.g., the coalition that successfully pushed for Prohibition included both progressives and the Klan), new social developments (according to Okrent, only with the speakeasy’s rise during Prohibition did significant numbers of American men and women begin to drink together socially outside the home), and technological surprises (rumrunners’ operations from the Caribbean and Canada to spots off the eastern seaboard triggered the responsive growth of the Coast Guard, which in turn spurred the rumrunners to improve powerboat design in ways that remain important today).

There’s plenty here for law professors in particular. A couple of years ago I blogged about my interest in teaching a class on Beer Law to explore various beer-related cases and what they tell us about constitutional (not to mention tort, contract, and intellectual property) law.  Thanks to Okrent, now I have even more to add to my draft syllabus. Recall, for example, Olmstead v. United States (Roy Olmstead was not only a lieutenant in the Seattle police department but also a very successful bootlegger), in which the Court found that the government’s wiretaps to enforce the Volstead Act did not violate the Fourth Amendment. Also fascinating is the story of  the “dry” movement’s successful effort to block congressional reapportionment to lock in dry congressional majorities.  Because the nation’s rural-to-urban demographic shift as documented by the 1920 Census would have meant considerably more political power for the (often very “wet”) cities, dry advocates blocked 42 separate reapportionment bills in the House for the better part of a decade before reapportionment was finally enacted in June 1929; Prohibition’s repeal was then just a few years away.

Cheers . . . .


CCR Symposium — Speech and (In)equality

Professor Citron’s Cyber Civil Rights makes several important contributions to our understanding of the relationship between speech and equality. By comprehensively documenting the use of cyberharassment to target traditionally subordinated groups so that members of such groups pay a higher price for their internet presence, she powerfully challenges the traditional narrative of the internet as a primarily egalitarian institution. She thoughtfully describes how the internet’s great communicative strengths — e.g., its ability to aggregate large numbers of speakers as well as disaggregate speakers’ offline identities from their online voices — also magnify its capacity to empower certain socially destructive behaviors. And, like both Charles Lawrence and Catharine MacKinnon in other contexts, she demonstrates how cyberharassment not only undermines equality values but also frustrates free expression by silencing certain voices.

After demonstrating the harms of cyberharassment, she then persuasively explains why the regulation of threatening or defamatory cyberspeech should pose no greater First Amendment hurdles than the regulation of threatening or defamatory speech in other settings. But, of course, those First Amendment hurdles are far from insignificant. For example, while the article suggests that much of cyberharassment fits on the “conduct” end of the “speech/conduct” divide, I’m among those who remain skeptical that such a divide is a terribly productive way to solve First Amendment problems. Rather than attempting to understand cyberharassment as conduct unprotected by the First Amendment, I would instead characterize it (along with threats, defamation, and other forms of harassment) as speech that nonetheless may be regulated when it poses substantial harms without significantly furthering traditional First Amendment values.

The article succeeds tremendously in its effort to “begin the conversation” about a cyber civil rights agenda. Like so many others, I’m very interested in what’s next. While the paper has convinced me that cyberharassment inflicts significant civil rights injuries, I don’t share its optimism that traditional civil rights statutes — such as Title VII or 42 U.S.C. section 1981 — are particularly well-suited to capture and address those harms. I was, however, fascinated by the paper’s discussion of the Violence Against Women Act’s prohibition on the use of telecommunications devices to deliver certain anonymous threats or harassment. Maybe that provision can provide a helpful model for ensuring that pending legislation (like the Matthew Shepard Act) remains attentive to the various forms that civil rights injuries can take in the 21st Century.