Government Speech 2.0

46 Pages Posted: 28 Jul 2010 Last revised: 29 Jul 2010

Helen L. Norton

University of Colorado School of Law

Danielle Keats Citron

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society

Date Written: March 3, 2010

Abstract

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the Court required government publicly to identify itself as the source of a contested message to satisfy the government speech defense to a First Amendment claim. The Court’s failure to condition the government speech defense on the message’s transparent identification as governmental is especially mystifying because the costs of such a requirement are so small when compared to its considerable benefits in ensuring that government remains politically accountable for its expressive choices.

This Article seeks to start a conversation about how courts – and the rest of us – might re-think our expectations about government speech in light of government’s increasing reliance on emerging technologies that have dramatically altered expression’s speed, audience, collaborative nature, and anonymity. It anticipates the next generation of government speech disputes in which certain associations and entanglements between government and private speakers complicate the government speech question. By adding to these challenges, government’s increasing use of newer technologies that vary in their interactivity and transparency may give the Court additional reason to re-examine its government speech jurisprudence. “Government Speech 2.0” thus refers not only to the next generation of government speech, but also to the possibility that government’s increasing reliance on emerging expressive technologies may help inspire the next generation of government speech doctrine: one more appropriately focused on ensuring government’s meaningful political accountability for its expressive choices.

Keywords: First Amendment, government speech, constitutional law, cyberlaw

Suggested Citation

Norton, Helen L. and Citron, Danielle Keats, Government Speech 2.0 (March 3, 2010). Denver University Law Review, Vol. 87, p. 899, 2010; U of Colorado Law Legal Studies Research Paper No. 10-10; U of Maryland Legal Studies Research Paper No. 2010-12. Available at SSRN: https://ssrn.com/abstract=1564489

Helen L. Norton (Contact Author)

University of Colorado School of Law ( email )

401 UCB
Boulder, CO 80309
United States

Danielle Keats Citron

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Yale University - Yale Information Society Project

127 Wall Street
New Haven, CT 06511
United States

Stanford Law School Center for Internet and Society

Palo Alto, CA
United States

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