Saturday, March 14, 2020

Who is The Government?

Guest Blogger

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

Josh Chafetz

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, or on Twitter @joshchafetz.

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