86 Fordham L. Rev. (Forthcoming Nov. 2017)
22 Pages Posted: 14 Jul 2017 Last revised: 3 Sep 2017
Date Written: August 31, 2017
The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.
In this essay, I examine the U.S. government's role as speaker (rather than as regulator of speech) in its war on terror, drawing from historical and contemporary examples to illuminate the great power of government’s wartime expression. As we shall see, the government’s expressive choices in wartime can be enormously valuable. On the other hand, the government has also engaged in wartime fearmongering and lies, with at times devastating effects to its targets specifically and to the American public collectively. Many of the challenges involving the government's speech in today’s war on terror are familiar (often painfully so), while some seem different in degree and perhaps in kind.
Although courts and commentators have discussed at some length the First Amendment issues raised by the government’s restriction of others' speech as part of its war on terror, relatively little attention has yet been devoted to the implications of the government's own expression in this setting. Except for the Court’s interpretation of the Establishment Clause to limit government’s religious speech in certain contexts, for example, the Court’s government speech doctrine remains incomplete in that it has yet to address the ways in which the government’s own speech might affirmatively threaten other constitutional values.
Part I of this essay considers the government's fearmongering speech in wartime -- i.e., its deliberate expressive effort to instill or exacerbate public fear of certain individuals or communities through stereotyping and scapegoating. Part II considers the government's war-related lies -- i.e., its deliberately or recklessly false assertions of fact about its wartime conduct made with the intent that the listener understand them to be true. Part III outlines a range of constitutional, statutory, structural, and political responses to the government’s wartime speech that threatens key constitutional values.
Keywords: constitutional law, government speech, war, national security, free speech, First Amendment, due process, equal protection
JEL Classification: K1, K10, K00, K4
Suggested Citation: Suggested Citation
Norton, Helen L., Government Speech and the War on Terror (August 31, 2017). 86 Fordham L. Rev. (Forthcoming Nov. 2017); Fordham Law Review, Vol. 86, November 2017. Available at SSRN: https://ssrn.com/abstract=2998906