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.
[18] American Booksellers Ass’n v. Hudnut,
771 F.2d 323 (7th
Cir. 1985), aff’d without opinion, 475 U.S. 1001 (1986).
[21] As existing doctrine recognizes. See Bantam Books,
Inc. v. Sullivan, 372 U.S. 58 (1963).
[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).