Emory Law Journal
Helen Norton, Campaign Speech Law with a Twist: When the Government Is the Speaker, Not the Regulator, 61 Emory L.J. 209 (2011), available at https://scholar.law.colorado.edu/faculty-articles/181.
Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and government speech more generally. The Supreme Court's "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has restricted or silenced their speech in violation of the First Amendment. In contrast, disputes over what this Article calls "governmental campaign speech" involve Free Speech Clause and other challenges by private parties who seek instead to silence the government's speech on matters subject to vote by members of the public or their elected representatives.
This Article thus explores when, if ever, governmental campaign speech on contested ballot and legislative measures is sufficiently dangerous to justify a departure from the general rule that the government's own speech is insulated from Free Speech Clause review. This inquiry invites important and challenging questions about both the nature of government and the nature of speech, valuably forcing us to think about how government does, and should, work as well as how speech does, and should, work. To this end, this Article reexamines the constitutionality of governmental campaign speech by incorporating perspectives offered by the emerging--but so far entirely separate--constitutional debates over campaign finance reform and government speech.
This Article contends that government speech on issue campaigns generally furthers, rather than frustrates, key First Amendment interests. Transparently governmental campaign speech often provides great value to the public: it enhances political accountability by informing voters of their governments' priorities and preferences, provides a valuable heuristic for those who do not or cannot evaluate the competing arguments for themselves, and adds to the marketplace of available ideas and arguments, especially (but not only) as a counter to expression from powerful, private sources.
The Article also identifies limits to its general proposition that the government's campaign speech is constitutionally valuable. First, it emphasizes that the government should be permitted to assert the government speech defense to constitutional challenges to its campaign speech on contested ballot or legislative measures only when that speech is transparently governmental in origin-when the public can clearly identify the message's governmental origins and thus hold the government politically accountable for its views. Second, it distinguishes government campaign speech that involves government's endorsement of political candidates, concluding that governmental bodies' campaign speech endorsing or opposing specific candidates raises greater threats to constitutional interests in preventing the self-perpetuation of incumbents and the entrenchment of political power. Finally, it highlights the availability of statutory and other nonconstitutional limits on government campaign speech, concluding that such constraints are constitutionally permissible yet often unwise as a policy matter in light of such expression's great instrumental value to the public. It urges instead that policymakers carefully target such constraints to address specific instances of abusive government speech.
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