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Helen Norton’s The
Government’s Speech and the Constitution is a marvelous book. Norton expertly guides the reader through
what she calls “first-stage” government speech problems, which involve the
question of whether it is the government or some private actor who is speaking,
and “second-stage” problems, which involve the question of whether some
instance of government speech is constitutionally permissible.
As to first-stage questions, Norton proposes a transparency
principle: for the government to take advantage of the greater latitude it gets
as speaker rather than as regulator, it must make clear to its audience that it
is, in fact, the speaker behind a given message. This transparency principle is justified in
the interest of allowing the public to hold the government politically
accountable for its expressive choices.
Second-stage questions are really the heart of the
book. Chapters 2-6 consist of nuanced,
sophisticated, and judicious considerations of when government speech should be
understood to violate the Establishment Clause, the Equal Protection Clause,
the Due Process Clause, the Free Speech and Press Clauses, and a constitutional
principle prohibiting the government from taking sides in an election. I learned a great deal from all of these
discussions, and I can find almost nothing in them with which to take issue.
I also very much appreciated Norton’s acknowledgment that
“the government” is not a unified actor.
Even just focusing on the federal government, Norton notes that
agencies, Congress, the courts, and presidents all speak (pp. 12-19). And in her final chapter’s discussion of
remedies, Norton notes that counterspeech by other governmental actors are one
important check on unconstitutional government speech (pp. 225-27, 228-30). In other words, governmental speakers are not
only varied, but there is also a substantial possibility that they will speak
at cross-purposes to one another.
But throughout much of the book, Norton figures government
speakers as unitary in some sense. Thus,
even when the speaker at issue is a multi-member body like a legislature or a
school board, the speech on which Norton tends to focus is univocal: things
like resolutions or statutes (e.g., pp. 54, 99, 220-26). In other words, government speech is largely
presented as authorized speech by a governing institution. The alternative to government speech is
private speech.
But I’m left wondering if there isn’t some important speech
taking place within governing institutions that doesn’t quite fit neatly into
this government/private dichotomy. In
recent work, I’ve described what I term “congressional overspeech,” which I
define as “the use of [legislative] oversight mechanisms to communicate with
the broader public.” One frequent
attribute of overspeech is its divisiveness.
In contrast to standard accounts of oversight-as-neutral-factfinding,
overspeech does not necessarily aim to bridge divides or find consensus: it may
seek to accomplish certain aims precisely through division, polarization, and
preaching to the choir. I’ve argued that
its divisiveness is no reason to eschew it: choirs need preaching to, and
political actors can frequently further worthy causes only at the cost of
alienating those who disagree.
But thinking in terms of the sort of divisive overspeech
that can occur at something like a legislative committee hearing raises the
question of what sort of speech the legislators and witnesses are engaged
in. Legislators conducting a hearing are
of course state officials acting in their official capacities. Many witnesses before them are, as well. And yet it would be strange to suggest that
they speak for the state, because this speech is often aimed precisely
at contesting or shaping state policy, rather than announcing it, and it is
often met with vigorous and immediate counterspeech by similarly situated
actors in the same forum. Indeed, in the
context of Congress, it is precisely the interest in protecting this
legislative speech-counterspeech dynamic that is responsible for the Speech or
Debate Clause.
But of course the Speech or Debate Clause only tells us
where members of Congress can be “questioned” for their speech or debate; it
does not suggest that there are no constitutional rules surrounding
congressional speech. So the question of
whether congressional overspeech is governmental or private or something else
entirely remains significant.
More broadly, I wonder if intra-institutional contestation
deserves its own category in our constitutional speech taxonomy. On the one hand, the mere fact of
contestation suggests that no one could mistake the speech for the unified
position of The Government, or even of a particular governing institution. That would seem to mitigate some of the
possibility of harm associated with certain types of government speech. On the other hand, the actors are still
speaking as state officials and in a place of government, which seems to raise
a heightened risk of expressive harms when they use that forum to utter, for
example, racially or religiously discriminatory remarks.
I’m not at all sure what the right regulatory regime would
be for such utterances (except to say that, in the case of legislatures, it is
emphatically the chamber’s own disciplinary processes that should be charged
with this determination). But I look
forward to hearing Professor Norton’s thoughts!
And in the meantime, I highly commend her insightful new book to you
all.
Josh
Chafetz is Professor of Law at Cornell Law School and Visiting
Professor of Law at the University of Texas School of Law. He can be reached at
jc2284@cornell.edu, or on Twitter @joshchafetz.