A Framework for Thinking About the Government’s Speech and the Constitution

This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that apply to the government as regulator—and necessarily so, as the government must have the power to control its own speech in order to govern. What I call “second-stage government speech questions” involve the constitutional questions sometimes raised when the government is simply speaking and not compelling or regulating others’ speech. Here we consider whether and when the government’s speech by itself violates a specific constitutional provision like the Establishment Clause, the Equal Protection Clause, or the Due Process Clause, among others.

The government’s power to express itself is important and valuable. But sometimes governmental parties argue (and sometimes courts agree) that designating contested speech as the government’s is essentially a constitutional get-out-of-jail-free card—even though constitutional limits on the government’s speech remain. One of this Essay’s primary objectives is to make clear that even if we determine that contested speech is the government’s, our constitutional inquiry is by no means complete. Consider, for instance, governmental requirements that nongovernmental parties affirm or spread the government’s message against their will, or the government’s viewpoint-based restriction of private parties’ criticism of the government’s message. Think too of the government’s speech that coerces, endorses, or denigrates religious practice in violation of the Establishment Clause, the government’s speech that encourages or enables private parties’ racial discrimination in violation of the Equal Protection Clause, law enforcement officers’ lies to those in custody about their legal rights in violation of the Due Process Clause, and the government’s speech that violates the Free Speech Clause by threatening its targets for engaging in protected expression.

To be sure, the universe of situations in which the government’s speech, by itself, violates our constitutional rights and liberties is a small subset of the government’s multitudinous expressive choices. But such a universe nevertheless exists. To help us identify this universe, I propose that we consider a series of questions about the effects of, and the motivations underlying, the government’s speech—questions that suggest different ways of thinking about when and why the government’s speech is sometimes constitutionally dangerous.

a. University Distinguished Professor and Rothgerber Chair in Constitutional Law, University of Colorado School of Law. Thanks to Katharine Walton, Yongli Yang, and the University of Illinois Law Review for their outstanding work in organizing the Law Review’s symposium on “The Government’s Speech and the Constitution;” to Benjamin Bonner and Jessica Zamba for helpful research assistance; and to the symposium’s participants and to Scott Skinner-Thompson for thoughtful observations and questions.

The full text of this Symposium is available to download as a PDF.