Why is Government Speech Problematic? The Unnecessary Problem, the Unnoticed Problem, and the Big Problem

39 Pages Posted: 24 Mar 2010  

Steven Douglas Smith

University of San Diego School of Law

Date Written: March, 22 2010

Abstract

This article, prepared for a conference on government speech, does not prescribe solutions for the various constitutional problems posed by government speech, but rather attempts in a more diagnostic way to figure out why the issue has come to seem so problematic. The article suggests that some of the difficulties derive from unrealistic and unnecessary commitments to governmental neutrality. Other difficulties reflect a less appreciated problem - what I call the problem of “institutional capture.” Most fundamentally, however, controversies about speech are merely reflections of deeper disagreements about the nature and functions of government. It it seems unlikely, therefore, that we will be able to find satisfactory solutions by focusing on controversies on the level of speech: that is because, ultimately, it is not speech that is the problem, but rather government.

Keywords: constitutional law, freedom of speech, first amendment

JEL Classification: K10, K39

Suggested Citation

Smith, Steven Douglas, Why is Government Speech Problematic? The Unnecessary Problem, the Unnoticed Problem, and the Big Problem (March, 22 2010). Denver University Law Review, Forthcoming; San Diego Legal Studies Paper No. 10-014. Available at SSRN: https://ssrn.com/abstract=1576817

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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