Sept. 27, 2010
Law professor believes government’s speech power needs more control
The First Amendment guarantees the freedom of speech to all Americans, but that doesn’t mean you have the absolute right to say anything you want. There are limits, as Oliver Wendell Holmes famously noted when he wrote you can’t yell fire in a crowded theater.
Unless you’re the government, in which case there are no limits. Randall Bezanson, a professor in the University of Iowa College of Law, is concerned such unlimited power poses a threat to everyone else’s speech and thinks a change in law is needed to hold government speech in check.
“The government’s duty is to facilitate the marketplace of political expression,” Bezanson writes in his paper “The Manner of Government Speech.” “Individuals may promote political falsehood, or racial hate, or unleash passion in the service of destruction; the government should not.”
The doctrine that gives the government unlimited speech rights has been in place since a 1991 Supreme Court decision, but Bezanson said it has “metastasized” since into something that creates a forum where the government is the only speaker and can prevent messages that contradict its own. This goes against the spirit of the First Amendment, he said, which was designed to limit the speech of governments at all levels in order to expand an individual’s freedom of speech.
He cited examples over the years that include government-funded doctors who are prohibited from discussing some medical procedures, such as abortion, with their patients; public art museums that face a loss of funding because they exhibit art the government doesn’t like; or a cross placed on federal land in the Mojave National Preserve in California to the exclusion of other religious symbols.
The problem in these cases, he said, is that government has created forums where only the government-approved message can be heard. Competing ideas are not allowed without government’s permission, and those who object have no constitutional recourse because the 1991 Supreme Court decision is interpreted in such a way as to allow the government’s action.
“We will be safer if we insist that government speech on public matters must, in the government’s own forum, be transparent, cognitive and reasoned,” he said. “Anything less would unleash a very dangerous power in the hands of the government, a power, ironically, immunized from challenge by the First Amendment itself.”
He said that means government speech should be straightforward and disclose its authorship, purposes and reasons for itself so people can judge its source and its content.
This doesn’t mean government can’t take an advocacy position on issues, he said. Anti-smoking campaigns, for instance, are funded with public money from various state and federal sources. This is acceptable, he said, because the audience knows the messages are coming from the government, and the government is making clear why it’s taking the position—in this case, to improve public health.
“The Manner of Government Speech” was published recently in the Denver University Law Review.
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