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.