Balkinization: The Government’s Speech and Why It Matters

The Government’s Speech and Why It Matters

Guest Blogger

For the Symposium on Helen Norton, The Government's Speech and the Constitution (Cambridge University Press, 2019).

Helen Norton

As I explained in my earlier post on this symposium, a key thesis of my book is that the government’s speech carries unusual power for both value and harm precisely because of its governmental source. As I wrote, “The government is unique among speakers because of its coercive power as sovereign, its considerable resources, its privileged access to key information, and its wide variety of speaking roles as policymaker, commander-in-chief, employer, educator, health care provider, property owner, and more.”

Indeed, the government’s speech in its role as health care provider at the federal, state, and local levels is hugely important in informing us about public health crises. Its speech in this capacity is sometimes heroic. Recall, for example, the Surgeon General’s paradigm-shifting 1964 report on the dangers of cigarettes. Recall too that office’s 1986 report on AIDS, in which Surgeon General C. Everett Koop rejected efforts to divide and demonize, reminding us that

We are fighting a disease, not people. Those who are already afflicted are sick people and need our care as do all sick patients. The country must face this epidemic as a unified society. We must prevent the spread of AIDS while at the same time preserving our humanity.

Important as it was, however, Koop’s report was also a long time coming, demonstrating how the government’s speech on public health crises is sometimes complicated and counterproductive. More specifically, Koop’s report followed years of silence by the federal government (along with many city and state health departments) about AIDS and its threats to public health—a silence that delayed the development of a public education campaign to prevent the spread of this infectious disease. Related illustrations include efforts by the federal government, among others, to downplay the 1918 influenza pandemic to prevent distractions from the war effort.

In this, the second of two posts responding to the wonderfully thoughtful contributions to this symposium, I highlight those contributors who addressed the enormous harm threatened by the government’s destructive speech—especially but not only during our time of pandemic—and the importance of public resistance to that speech.

For example, Sonja West (who is among our most influential Press Clause scholars—see, for example, here, here, and here) reminds us that the constitutional value of a free press inheres not only in its role as government watchdog, but also in its educator role in informing us about a wide variety of matters of public concern. Of course, this function is of critical importance during major public health crises of the sort we are experiencing today.

And many government speakers during this crisis have greatly contributed to the public’s understanding of the coronavirus and its implications: Dr. Anthony Faucio, the director of the National Institute of Allergies and Infectious Diseases, comes immediately to mind, along with the Centers for Disease Control and numerous state and local public health agencies. But their ability to serve and succeed as trusted messengers is compromised when other governmental speakers attack the very press upon whom they depend to deliver clear and consistent messages—or when those other government speakers deliver inconsistent messages themselves.

As West documents, President Trump and certain other government officials have too often used their expressive power to attack and discredit the press and deny it access to important information, thus “interfering with the press’s constitutionally assigned job of arming the public with the knowledge that it needs to protect itself.” As she explains, this injures all of us, not just the press, and in very concrete ways:

The press conveys newsworthy information, which then spreads through our community in a manner that is not unlike a (beneficial) virus. We experience the impact of that information, therefore, not just as an individual or even as a collection of individuals, but as a community. This is all to say that we share a collective First Amendment interest in living in a society where the press is free to do its work effectively. Thus when the government interferes with this process, whether by blocking the press from accessing information or by convincing others to disregard reliable reporting, we feel the harms of these choices as a community as well.

Relatedly, Nathan Cortez’s contribution to the symposium explores how crises like a pandemic heighten the dangers of the government’s lies and other destructive expressive choices. To this end, he documents President Trump’s inconsistent, self-serving, and often counterfactual claims in the crisis’s early days:

[President Trump] claimed that new cases in the U.S. are “going very substantially down, not up.” He promised that U.S. researchers are “rapidly developing a vaccine” and that we “will essentially have a flu shot for this in a fairly quick manner.” And he gave the impression that the fatality rate for the “regular flu” is “much higher” than for the new coronavirus. Each statement was demonstrably wrong, which quickly became apparent as scientists from the CDC and NIH contradicted Trump.

(These sorts of statements have even led some journalists and scholars to call upon the press to stop reporting on Trump’s coronavirus briefings.)

Cortez’s own work has added greatly to our understanding of the government’s instruments of information control, the abuse of which he calls the government’s information mischief. And he has identified a range of constructive responses that sound in administrative law and agency process, recommending various practices through which government agencies can ensure that their databases are “reliable, useful, and fair.”

Even so, Cortez recognizes the limits of constitutional, statutory, and administrative responses in responding to the sorts of destructive government speech he describes above. Because these responses can only be as good as the public demands them to be, he concludes that “[t]he only reliable responses, it seems, are political and practical rather than legal or administrative: fighting misinformation with information; fighting lies with truth.”

Relatedly, Jack Balkin’s contribution to this symposium elaborates on his important work on constitutional rot (see here and here), which he defines to mean “the decay of features of a constitutional system that maintain it as a healthy republic.” More specifically, Balkin explains how the government’s expressive attacks on the press (and other experts and speakers who challenge the government’s preferred narrative) contribute to such rot by sowing division and trust.

The government’s attacks on the press thus undermine the most obvious structural response to the government’s lies and other destructive propaganda: “the power of the press to counter propaganda with truthful reporting.” This leaves the public’s own response as the primary remedy, especially when the stakes are as high as they are during this pandemic:

[W]hen both health and livelihoods are at stake, people may grow impatient with con artists and carnival barkers. Suddenly, what is actually true and what is actually not true matters. People may have renewed reasons to trust experts and those news organizations that can accurately investigate and report what is happening. Will the current pandemic and economic crisis undermine Trump's skillful use of propaganda? Will they cause reality to break through? The current crisis could help restore people's faith in competent government and belief in a common good. Or it might cause people to become ever more isolated, suspicious, and distrustful. The past three years may have poisoned our democracy beyond repair. Or Americans may rise to the challenge, preserve their lives, and restore their democracy. Only time will tell.

In times of crisis, the government’s speech can inform, unite, commiserate, and inspire. The government’s speech can also (or instead) deceive, attack, confuse, and divide. We can find no substitute for persistent pushback, on all fronts, to the government’s destructive speech that damages us and our constitutional commitments. Courts and litigants have an important role to play. But so too do the rest of us. Whether we do so, as the symposium’s contributors highlight, is among our greatest choices and challenges today.

Helen Norton holds the Rothgerber Chair in Constitutional Law at the University of Colorado School of Law. She can be reached at helen.norton at colorado.edu.

Posted 9:30 AM by Guest Blogger [link]