37 Pages Posted: 21 Mar 2010 Last revised: 25 Mar 2010
In this essay, I evaluate three issues of attribution and mis-attribution that arise in the so-called area of “government speech.” First, I explore when an individual might have a constitutional claim for mis-attribution by the state. Second, I discuss the citizen’s interest in proper attribution by the government when it is speaking. Third, I consider the government’s interest in avoiding expression being improperly attributed to it. This concern arises less often than is commonly assumed; what many scholars (and governments) claim to be a state interest in avoiding attribution or endorsement is in fact a state interest in not providing a platform for certain types of private speech. As such, the matter cannot be resolved according to the categories of “public forum” or “government speech,” and instead we must decide how much content-based decision-making is appropriate for the state when creating speech opportunities that fall into neither of these more doctrinally understandable forms.
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