The Supreme Court has held that when the government speaks, it faces few constitutional constraints, including adherence to viewpoint neutrality. The Court has indicated that if voters dislike the content of governmental speech, they should express this displeasure through democratic process. Yet the inadequacy of this logic has been exposed by the Trump presidency, which reflected extraordinary willingness to defy norms and conventions of the presidency, including the expectation that the office would not be abused to advance partisan goals or attack political enemies. Since many of Trump’s statements had the precise aim of influencing popular self-determination, his presidency shows a weakness of the government speech doctrine’s reliance on electoral accountability: it offers no constitutional mechanism for addressing government speech that distorts democratic process itself.
This Article addresses this lacuna in the government speech doctrine by demonstrating how norms of democratic accountability should discipline the government speech doctrine. It first reconstructs the liberal origins of the government speech doctrine and demonstrates these origins elicit the tension between constitutional and democratic authority. The principles of popular autonomy that inform the government speech doctrine are premised upon cultivating responsible and independent reasoning by voters. These norms are the same that justify traditional application of viewpoint neutrality as a mechanism for protecting political reasoning in First Amendment doctrine. The government speech doctrine is novel because it extends this logic of free speech not to constrain the government through constitutional oversight but to suggest it should be subject to democratic rather than constitutional control. A sensitive approach to this balance in general and the government speech doctrine in particular vindicates constitutional scrutiny of government speech when it threatens reasoned and balanced political discourse. The Article then explores one class of government speech characteristic of Trumpist governance that shows the urgency of revising the theory and practice of the government speech doctrine: partisan speech that deviates from neutral governance.
The responsible individual reasoning and collective electoral accountability that underlie the government speech doctrine suggest its appropriate future development: government speech invites constitutional scrutiny when it threatens to distort or prejudice, rather than cultivate and clarify, citizens’ reasoning. The Supreme Court, rather than rigidly exempting state speech from constitutional scrutiny, should adopt such a nuanced analysis in future application of the government speech doctrine.
a. Class of 1940 Professor of Law, Northwestern Pritzker School of Law, mkang@law.northwestern.edu.
b. Associate Professor of Public Law, Southampton Law School, j.eisler@soton.ac.uk.
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