Balkinization: The State’s Speech and Other Acts

The State’s Speech and Other Acts

Guest Blogger

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

Frederick Schauer

For well over a decade, Helen Norton has been our leading scholar of the constitutional questions surrounding speech by the government. It is therefore especially gratifying now to see her bring together her influential scholarship about government speech in this book, which deals comprehensively and insightfully with the vast range of constitutional and political issues raised by the government’s communicative activities. Even those who disagree with her interesting distinction between first-stage and second-state problems, and with her normative arguments about the constitutional importance of transparency, must necessarily treat this book as the required resource on this increasingly important domain of First Amendment theory and doctrine.

Norton’s coverage of the array of issues presented by government speech is broad in two ways. First, and most obviously, she deals with the various doctrinal boxes within which government speech arises. These include, inter alia, the tension between the government’s right to speak and the potential First Amendment rights of the government employees who carry the government’s message[1]; the Establishment Clause limitations on the government’s religious speech[2]; the way in which government speech may create the very racial and other inequalities that are the concern of the Equal Protection clause[3]; and the difficult conflict between the government’s right to articulate its point of view on matters of public policy and the government’s obligation in a democracy not to skew public decision-making about public policy too much in favor of those who happen temporarily to occupy positions of power.[4]

Less obvious but perhaps more interesting, however, is the way in which Norton, sometimes intentionally and sometimes en passant, reveals the equally wide array of things that the government can do with its speech. Depending on the context, the government’s speech acts can inform, enlighten, include, celebrate, uplift, and empower, but they can also threaten, defame, oppress, exclude, mislead, and coerce. Norton valuably reminds us, for example, of the important inclusionary effect of President George W. Bush’s speech almost immediately after the September 11, 2001, attacks urging Americans not to blame all or even most Muslims for those attacks,[5] and of the exclusionary effects of various statutes and symbols celebrating the Confederacy and all that it stood for. She highlights how government speech can inform people of the dangers of smoking[6] but can also misinform people about the Vietnam War[7] or the alleged health dangers of abortion.[8] And she contrasts the way in which speech by government officials might convince individuals to treat other individuals with respect[9] with how speech by government officials might also coerce individuals into refusing to deal with those of whom those officials disapprove.[10]

The vast range of things that government speech can do is but a subset of the vast range of things that all speech can do. When the philosopher John L. Austin several generations ago give us the idea of a speech act,[11] he provided the resources for thinking about the ways in which speech can exert actual influence, the sticks-and-stones crowd notwithstanding, for good or for ill. As the scholarship on pornography[12] and racist speech[13] reminds us, speech can silence and exclude, but speech can also empower and include. Speech can honor, but it can also shame. It can illuminate, but it can also deceive. It can create opportunities, but it can also destroy them.

One of the interesting features about the breadth of the effects that speech acts can bring about is that most – perhaps all – of those effects can be produced by things other than speech. Take coercion, for example. Norton offers us a nice discussion of the events in which President Trump seemingly urged private businesses and individuals to refuse to deal with Colin Kaepernick and other professional football players who knelt during the playing of the national anthem.[14] As the example illustrates, and as Norton recognizes, the case is not an easy one from the perspective of the First Amendment. Although it is plain that the players were exercising their First Amendment rights, both existing First Amendment doctrine and common sense makes clear that there is no constitutional bar to government officials criticizing the constitutionally protected speech of others.[15] That American free speech doctrine protects neo-Nazis,[16] the Ku Klux Klan,[17] advocates of sexual violence,[18] puppy torturers,[19] and virulent homophobes[20] is no impediment to public officials criticizing their activities. But at some point, as Norton argues and explains, the government’s speech becomes threatening or coercive,[21] and at that point perhaps – she is admirably cautious here – the First Amendment has a role to play in limiting the extent to which the government may threaten or use its coercive power to intimidate those who are themselves exercising First Amendment rights.

This power to intimidate, to threaten, or to coerce, however, is hardly limited to speech. Government condemnation might cause people to refrain from saying what they might otherwise say – and have a constitutional right to say – but so too might the prospects of a simple governmental refusal to deal or hire have much the same effect. People can feel threatened by the government’s words, but they can also feel threatened by the government’s tanks and guns. And I suspect that far more desired abortions have not taken place because of government funding decisions[22] than by government speech about abortion. Indeed, if much of the worry about government speech is that government speech will limit or distort the communicative choices of non-governmental actors, then there is little reason to suppose that taxation, government funding, government spending, and various other governmentally-provided incentives and disincentives cannot limit or distort those communicative choices even more.

Norton’s important book culminates a long tradition of worrying about government speech, a tradition going back at least as far as Steve Shiffrin’s and Mark Yudof’s scholarship of almost forty years ago.[23] But whether it be Shiffrin and Yudof’s slightly hedged calls for more constitutional (and judicial scrutiny) of government speech then, or Norton’s even more nuanced treatment now, the basic problem is that all or almost all of the problematic things that government speech might do, and thus to some might demand or justify constitutional and/or judicial scrutiny,[24] can be done by other means. And to the extent that this is so, it seems peculiar to worry about government speech when government speech is but a subset of all of the things that government can do, wisely or unwisely, helpfully or harmfully.

Those who have thought that the problem of government speech is largely a non-problem[25] have tended to focus on the inevitability of government speech, and thus of the implausibility of developing constitutional doctrines to deal with it. And that is the perspective that informs contemporary government speech doctrine, a doctrine that Norton largely accepts, even as she is concerned to recognize a collection of limits dealing with a variety of problems when government speech runs off the rails. These limits, however, as I have tried briefly to suggest here, are limits that expose the fragility of the line between speech and action.[26] That government can do in countless non-speech ways what it can do through explicitly communicative action suggests that actors other than the government can also do in countless non-speech ways what they can with speech. When we peel back the layers of the problem of government speech we thus expose what we might think of as the problem of speech itself, and consequently that the very idea of free speech may require more of a distinction between speech and action than close analysis can justify.

Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia. You can reach him by e-mail at fschauer at law.virginia.edu

[1] See Norton, pp. 60-67, and especially the contrast between Pickering v. Board of Education, 391 U.S. 563 (1968), and the more recent Garcetti v. Ceballos, 547 U.S. 410 (2006), and Lane v. Franks, 573 U.S. 228 (2014).

[2] See Norton, pp. 68-92, as most recently explored and debated in Town of Greece v. Galloway, 572 U.S. 565 (2014).

[3] See Norton, pp. 93-126. The way in which government’s flags, monuments, and official celebrations and commemorations (consider the names of streets and bridges, for example) may be equality-denying has generated almost no Supreme Court caselaw, and this is an area in which Norton’s extensive use of lower court cases and reports of non-litigated (or litigated but not officially reported) controversies is especially helpful. On the subject generally, see also Richard Schragger, What is “Government” “Speech”? The Case of Confederate Monuments, 108 Ky. L.J. (forthcoming 2020). On the closely-related problem of license plates, see Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015); Frederick Schauer, Not Just About License Plates: Walker v. Sons of Confederate Veterans, 2015 Sup. Ct. Rev. 265.

[4] See Norton, pp. 189-211. The worry about government using its wealth, power, or prestige to skew public debate was at the center of earlier efforts to place limits on government’s speech. See, e.g., Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983); Robert Kamenshine, The First Amendment’s Implied Political Establishment Clause, 67 Calif. L. Rev. 1104 (1979); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565 (1980); Edward Ziegler, Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C.L. Rev. 578 (1980).

[5] Norton, pp. 2, 95-96.

[6] Norton, pp. 1-2.

[7] Norton, pp. 130-32.

[8] Norton, p. 143.

[9] Norton, pp. 94-98.

[10] Norton, pp. 174-76.

[11] Especially in the various papers collected in J.L. Austin, Philosophical Papers (J.O. Urmson & G.J. Warnock eds., 3d ed., 1979). See also J.L. Austin, Sense and Sensibilia (G.J. Warnock ed., 1962).

[12] See Catharine A. MacKinnon, Only Words (1993); Catharine A. MacKinnon, Pornography as Defamation and Discrimination, 71 B.U.L. Rev. 793 (1991). See also Rae Langton, Sexual Solipsism: Philosophical Essays o Pornography and Objectification (2009).

[13] See The Content and Context of Hate Speech: Rethinking Regulation and Responses (Michael Herz & Peter Molnar eds., 2012); Extreme Speech and Democracy (Ivan Hare & James Weinstein eds., 2009); Speech and Harm: Controversies Over Free Speech (Ishani Maitra & Mary Kate McGowan eds., 2012).

[14] Norton, pp. 174-76.

[15] See Meese v. Keene, 481 U.S. 465 (1987).

[16] Collin v. Smith, 578 F.2d 1197 (7^th Cir. 1978), cert. prominently denied, 439 U.S. 916 (1978).

[17] Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).

[18] American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7^th Cir. 1985), aff’d without opinion, 475 U.S. 1001 (1986).

[19] United States v. Stevens, 559 U.S. 460 (2010).

[20] Snyder v. Phelps, 562 U.S. 443 (2011).

[21] As existing doctrine recognizes. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

[22] See Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977).

[23] See note 4, supra.

[24] Norton is to be commended for recognizing that there is a difference between a problem and a constitutional problem, and a difference between a constitutional problem and one that can (or should) be remedied in the courts. See Norton, pp. 212-32.

[25] See Thomas I. Emerson, The System of Freedom of Expression 712 (1970); Frederick Schauer, Is Government Speech a Problem,? 35 Stan. L. Rev. 373 (1983) (book review); Laurence Tribe, Towards a Metatheory of Free Speech, 10 Sw. U.L. Rev. 237 (1978).

[26] See Frederick Schauer, On the Distinction Between Speech and Action, 65 Emory L.J. 427 (2015). See also MacKinnon, Only Words, supra note 7; Susan Brison, Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence, 4 Legal Theory 39 (1998).

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