The Many Faces of Government Speech

Abstract

Governments must be able to speak, but what should be the status of their speech under the First Amendment? In The Many Faces of Government Speech, seven different forms, or typologies, of government speech are described and analyzed in detail. The typologies are: government programs expressing a specific message; government programs expressing a general or diffuse message; government control of a communication medium; government messages required to be spoken by a private speaker; government preferences for some messages over others; government control of information in its possession; and government speech through private messages attributed to it. These typologies are explored in detail through eight paradigmatic cases involving government speech claims. The exploration focuses on the precise nature of the expressive activity claimed by government; the nature of any free speech claim that government can make with respect to the activity; the risks that various forms of expressive government action present to private speakers and First Amendment values; and the Constitutional status of government speech.

The article concludes that government speech embraces a broad array of government actions and that acting expressively is a valid and indeed essential role for government. Yet there is no practical need or constitutional justification for treating government speech as speech protected by the First Amendment. Without any special First Amendment right the government possesses ample constitutional authority to act expressively. Instead, the important First Amendment question concerns the limits that should be placed on government speech. The article concludes that the limits are threefold: distortion of the private marketplace for expression; displacement of private speech through conversion or alteration of meaning; and deception about who authored a message.

Keywords: Government, speech, government speech, freedom of speech