GOVERNMENT SPEECH

first amendment commentary has emphasized the danger of government as censor; thus lavish attention has been given to whether government can prevent Nazis from marching in Skokie, Illinois, Communists from advocating revolution, pornographers from selling their wares, or eccentrics from yelling fire in crowded theaters. Much less attention has been paid to the role of government as speaker; yet, one need only notice the ready access of government officials to the mass media, the constant stream of legislative and executive reports and publications, and the massive system of direct grants and indirect subsidies to the communications process (including federal financing of elections) to recognize that speech financed or controlled by government plays an enormous role in the marketplace of ideas. Sometimes the government speaks as government; sometimes it subsidizes speech without purporting to claim that the resulting message is its own. The term "government speech," therefore, includes all forms of state-supported communications: official government messages; statements of public officials at publicly subsidized press conferences; artistic, scientific, or political subsidies; even the classroom communications of public school teachers.

Basic assumptions of First Amendment law are sharply modified when governments speak. A basic canon of First Amendment law is that content distinctions are suspect. Indeed, in police department of chicago v. mosley (1972) the Court insisted that government could not deviate " 'from the neutrality of time, place and circumstances into a concern about content.' This is never permitted." When governments speak, however, content distinctions are the norm. Government does not speak at random; it makes editorial judgments; it decides that some content is appropriate for the occasion and other content is not. The public museum curator makes content distinctions in selecting exhibits; the librarian, in selecting books; the public official, in composing press releases. If government could not make content distinctions, it could not speak effectively.

The government speech problem is to determine the constitutional limits, if any, on the editorial decisions of government. buckley v. valeo (1976) squarely presented the issue. Certain minor party candidates argued that their exclusion from the system of public financing of presidential elections violated the First Amendment and the due process clause of the Fifth Amendment. The Court briskly dismissed the relevance of the First Amendment challenge on the ground that a subsidy "furthers, not abridges, pertinent First Amendment values." This cryptic response has prompted criticism on the ground that it ignores the equality values in the First Amendment. One wonders, for example, how the Court would have reacted if the Congress had funded Democrats but not Republicans. Nonetheless, the Court did consider an equality claim grounded in Fifth Amendment due process, and concluded that the financing scheme was in "furtherance of sufficiently important government interests and has not unfairly or unnecessarily burdened the political opportunity of any party or candidate."

Buckley is important for two reasons. First, it affirms that government subsidies for speech enhance First Amendment values, recognizing that our "statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media … and preferential postal rates and antitrust exceptions for newspapers." Second, it seems to recognize that political subsidies are subject to constitutional limits under the equality principle, if not under the principle of free speech.

The First Amendment issues given short shrift in Buckley were fully aired in board of education v. pico (1982). Students alleged that the school board had removed nine books from school libraries because "particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking educational value." The case produced seven different opinions and no clear resolution of the First Amendment issues. Over the dissent of four Justices, the Court ruled that the students' complaint could survive a summary judgment motion. Four of the Justices in the majority stated that if the allegations of the complaint were vindicated, the First Amendment barred the board's action. The fifth Justice, byron r. white, thought that because of unresolved questions of fact the case should proceed to trial; he maintained, however, that discussion of the First Amendment issues was premature.

Most of the eight Justices who did discuss the issues expressed three important notes of agreement. First, they agreed that a major and appropriate purpose of government speech in the public schools is to transmit community values "promoting respect for authority and traditional values be they social, moral, or political." There was substantial disagreement, however, about the relevance of this purpose to book selections for a school library. Second, the Justices agreed that local authorities had wide latitude in making content decisions about library materials. Finally, most agreed that discretion could not be employed in a "narrowly partisan or political manner," such as removing all books written by Republicans. Beyond these agreements, however, the Justices struggled over differences between libraries and classrooms, between lower and higher levels of education, between acquiring books and removing books. Pico stands for little more than the proposition that government's broad discretion in subsidizing speech is not entirely unfettered by the First Amendment.

Perhaps the most serious challenges of government speech have surrounded government spending to influence the outcome of election campaigns. In many lower court cases, taxpayers have challenged the constitutionality of spending by cities or administrative agencies to influence the outcome of initiative campaigns. Lower courts have frequently avoided constitutional issues, concluding that state law does not authorize the city or administrative agency to spend the money. At least one question is implicitly resolved by these decisions, however, namely, that cities and administrative agencies do not have First Amendment rights against the state, at least none comparable to the rights of individuals or business corporations. The decisions have left open the question of the extent to which the Constitution permits governments to use their treasuries to help one side in an election campaign.

The establishment clause unquestionably prohibits some forms of religious government speech, and the equal protection clause presumably prohibits some forms of racially discriminatory government speech. It remains to be seen what other limits the First Amendment or the equal protection clause may place on government's massive role in subsidizing speech.

Steven Shiffrin
(1986)

Bibliography

Shiffrin, Steven 1983 Government Speech. UCLA Law Review 27:565–655.

Yudof, Mark 1983 When Government Speaks: Politics, Law,and Government Expression in America. Berkeley and Los Angeles: University of California Press.