Helen Norton believes speech by the government is fundamentally different from when anyone else speaks. The government has the advantage of both power and information over citizens. Because of that, as Norton detailed in a Colorado Law Talks presentation Wednesday, both citizens and the government should have the ability to recognize all the forms government speech can take and its rippling influence.
“The government is unique among speakers because of its coercive power, because of its considerable resource, because of its often privileged access to key information … and because of its wide variety of expressive roles,” said Norton, a professor at the University of Colorado Law School who also served as a Department of Justice attorney for the Clinton administration. “It speaks not only as sovereign, but also as employer, as educator, as property owner, as commander in chief and in many other roles.”
Norton spoke about the pervasiveness of government speech, its effects and potential for both positive impact and harm, and government speech as a constitutional topic, including when the government can lie to its citizens. She explained speech includes not only what government officials directly say to citizens but other methods such as public service announcements, campaigns, court opinions and even choices about what to name streets and buildings. Norton defined government speech as that from its various bodies and from individuals speaking on behalf of the government but not those individuals speaking outside their official capacities.
She said she believed people should consider the importance of government speech right now because the ways it can express itself have evolved, from President Thomas Jefferson’s written State of the Union addresses to Congress to President Donald Trump’s tweeting, and the impact it has on counter-speech and the rights of citizens evolve along with it.
“With social media’s power also comes its potential for greater harm, because the speed and reach is so great,” Norton said after her talk. “The harms as well as the value are amplified.”
“Now, usually it’s easy to tell when the government is speaking,” she said. “I acknowledge there are some hard cases where we’re not really sure if we should characterize the contested speech as the government’s or in fact some private individual’s.” Norton said confusion arises usually when the government requests private parties to participate in the speech. She gave the example of a Supreme Court case that ruled custom license plates constitute government speech, even though private citizens choose the messages to go on them.
But Norton first started thinking in-depth about government speech, she said, when she remembered an amicus brief authored during her time as a lawyer in the DOJ. The state of Missouri had asked for help in a First Amendment challenge brought by the Ku Klux Klan for the state’s denial of participating in the Adopt-a-Highway program. An official had candidly said the state government hated the Klan’s speech, which tipped the case in favor of the Klan’s First Amendment rights.
In retrospect, Norton said, she realized the Missouri government would have put itself in a better position by arguing an Adopt-a-Highway sign is its own speech, and forcing it to thank the Klan would have taken away the government’s power to control its own speech.
“I acknowledge it’s a hard question,” Norton said. “It really is a hard question about whether the speech concerns some sort of public forum for whether traditional First Amendment rules apply. … But this is what got me thinking about the government’s speech.”
She emphasized that the government’s choices about its speech are not inherently good or bad. Government speech can educate, persuade and empower just as easily as it can blame, divert and silence, she said.
Norton gave the surgeon general’s warning about the health dangers of smoking as an example of good and informative speech by the government.
As a darker side to the government’s speech, she talked about members of Congress who engaged in campaigns to publicly undermine the Supreme Court’s striking down of institutionalized segregation in Brown v. Board of Education in 1954.
She explained in instances when the government lies to citizens, such as in matters of national security, war efforts or to avoid legal accountability, it’s important to consider whether the lies violate the Constitutional due process, free speech or equal protection clauses.
Tactics to silence critics, imprisonment such as the internment of Japanese Americans during World War II, and discriminatory speech can all violate those Constitutional doctrines, Norton said.
“In short, speech is complicated, and so is the government,” she said. “We need to empower our government to operate effectively to protect us and our interests. … The government’s expressive choices can either be assertive of or a threat to deliberative democracy.”
— Julia Cardi