Norton, Helen
June 2008
Boston University Law Review;Jun2008, Vol. 88 Issue 3, p587
Academic Journal
States and other governmental bodies increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a public entity claims that same speech as its own, along with the ability to control its content. In suggesting a framework for approaching these problems, this Article starts by examining the theoretical and practical justifications for insulating government speech from First Amendment scrutiny. It addresses the benefits of government speech in facilitating self-governance so long as such speech remains subject to political accountability checks like petitioning and voting. It also explores the body of social science research that describes how a message's source shapes its effectiveness, with special attention to the government's role as the source - or perceived source - of a particular view. Emphasizing that government speech is most valuable and least dangerous when its governmental source is apparent, the Article then proposes that a public entity seeking to claim the government speech defense must establish that the contested expression is governmental in origin both formally (i.e., that the government expressly claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government's at the time of its delivery). This dual requirement maximizes prospects for meaningful credibility assessment and political accountability by identifying two junctures at which government must expose its expressive choices to the public: when it decides to express a certain idea and when it actually communicates that idea. The Article then draws from relevant experience in other areas to examine a variety of characteristics - or "source cues" - that may signal a message's genesis as governmental or private. These include not only express indications of a message's origin, but also less direct signals like a message's physical location or onlookers' expectations based on past practice. The Article goes on to apply, this framework to several recurring challenges, exploring specific features in a range of contexts that may obscure or reveal a message's governmental source.


Related Articles

  • Scientific Speech. Guzelian, Christopher P. // Iowa Law Review;3/1/2008, Vol. 93 Issue 3, p881 

    Traditional First Amendment categorizations of speech content, entrenched as constitutional precedent through many cases and decades, fail to reflect the three fundamental philosophical categories of speech content: scientific speech, historical interpretations, and viewpoints. In particular,...

  • THE TRUTH CAN CATCH THE LIE: THE FLAWED UNDERSTANDING OF ONLINE SPEECH IN IN RE ANONYMOUS ONLINE SPEAKERS. Durkee, Musetta // Berkeley Technology Law Journal;2011 Annual Review, Vol. 26 Issue 1, p773 

    The article explores the context of online speech, wherein district and state courts must understand the meaning of the speech to determine its First Amendment protection. It discusses the anonymous speech jurisprudence in online and offline cases, in which the context is the focus of courts in...

  • Assistant Attorney General Describes American Experience with Freedom of Religion and Expression in Malaysia.  // Religious Freedom in Focus;Jan2013, Vol. 55, p1 

    The article discusses a speech made by U.S. Assistant Attorney General Thomas E. Perez in a conference in Kuala Lumpur, Malaysia where he offered insights on the American experience with protecting religious freedom and expression. He indicated that freedom of speech and religion are fundamental...

  • Past Bad Speakers, Performance Bonds & Unfree Speech: Lawfully Incentivizing "Good" Speech or Unlawfully Intruding on the First Amendment? Calvert, Clay // Harvard Journal of Sports & Entertainment Law; 

    Using the recent legal woes of television pitchman Kevin Trudeau as an analytical springboard, this article examines the multiple First Amendment issues and red flags raised by the imposition of performance bonds on "past bad speakers" as conditions precedent for their future speech. Performance...

  • The Political Speech of Charities in the Face of Citizens United: A Defense of Prohibition. Colinvaux, Roger // Case Western Reserve Law Review;Spring2012, Vol. 62 Issue 3, p685 

    The article presents information on the participation of the charitable organizations in political campaigns in the U.S. with respect to the introduction of a Section by the Internal Revenue Code of the country regarding the issue. The First Amendment of the Constitution of the country is based...

  • Disclosure and Its Discontents. Kendrick, Leslie // Journal of Law & Politics;Summer2012, Vol. 27 Issue 4, p575 

    The article presents information on the issue of disclosure and the discontents of the issue with respect to the decision of the Supreme Court of the U.S. The First Amendment of the Constitution of the U.S. was established regarding the issue of the disclosure of information. The findings of the...

  • Pushing the Limits of Dissent in Wartime: Clement Vallandigham's Daredevil Tactics. Hostetler, Michael // Free Speech Yearbook;2006-2009, Vol. 43, p85 

    The article discusses the speech of congressman Clemenet Vallandigham which raised the issue of the freedom of speech in the U.S. It states that Vallandigham was a defense attorney for Thomas McGehan, an accused in the killing of the victim, Tom Myers. It mentions that Vallandigham was arrested...


    The article discusses the customs and traditions of rhetoric on rubrics of academic freedom which are freedom to question to learn, and to teach that emanates from First Amendment of the U.S. Constitution in relation to classroom speeches. It mentions the factors in the discipline of rhetoric...

  • The bicentennial of the Bill of Rights. Wood Jr., James E. // Journal of Church & State;Summer91, Vol. 33 Issue 3, p443 

    Editorial. Highlights the bicentennial anniversary of the American Bill of Rights. Date of adoption by the Congress; Historical circumstances surrounding its drafting; Role of the provisions in the ratification of the American Constitution; Contemporary meaning and significance of the Bill of...


Read the Article


Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics