Context, Not Content: Medium-Based Press Clause Restrictions on Government Speech in the Internet Age
Wheeler Trigg O'Donnell LLP
March 22, 2010
University of Denver Sports & Entertainment Law Journal, Vol. 7, pp. 26-61, 2009
By all accounts, the Obama campaign was remarkably successful at harnessing internet resources like YouTube, Facebook and Twitter to secure a convincing electoral victory last November. And President Obama has made it clear that he will continue to use the internet to bypass traditional media outlets and take his message directly to the public. Many commentators have applauded this renewed commitment to transparency as a welcome change, but others have voiced concerns about the government’s version of events becoming the dominant narrative.
These mixed reactions are symptomatic of the confused state of the law, and of legal scholarship, on the issue of government communication. On one hand, communicating with the public is an essential function of government. But government speech that becomes too dominant can begin to resemble unconstitutional propaganda. Government expression thus presents two interpretational challenges. First, drawing a line between persuasion and propaganda can be difficult. Second, even if a particular form of government speech seems impermissible, articulating a constitutional reason for prohibiting it is not obvious. The new technologies of the “information age” have put these problems into particular relief.
This paper proposes an answer to both of these questions. First, the Constitution established the press as a check on government, so when government speech interferes with the press’s checking function, that speech is unconstitutional. The Supreme Court’s recent decision in Pleasant Grove City, Utah, v. Summum apparently exempts government speech from First Amendment analysis altogether. However, this paper - the first to examine Summum’s Press Clause implications - explains why future courts may be willing to consider Press Clause limitations to the new expansive Summum liberties when government expression impedes the checking function.
But even those writers who believe that the Press Clause places limits on government speech have not been able to clearly articulate when those limitations should come into effect. This paper contends for the first time that Press Clause restrictions should not be based on the content expressed, but on the physical medium used. The advent of the internet is eroding the power of the traditional media, while simultaneously consolidating the government’s power as a speaker. Moreover, the online news sources that are supplanting traditional media outlets are too fragmented to provide a coherent check on the government’s version of events. The internet is thus the first mass communication medium whose use by the government raises substantial constitutional concerns.
Our current administration is not engaged in impermissible government speech. However, the day may come when it crosses the line. Accordingly, courts faced with Press Clause challenges to government speech should distinguish Summum and consider limiting that speech, especially if is communicated via the internet.
Number of Pages in PDF File: 36
Date posted: March 27, 2010
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