South Carolina Law Review
Helen Norton, Shining a Light on Democracy's Dark Lagoon, 61 S.C. L. Rev. 535 (2010), available at https://scholar.law.colorado.edu/faculty-articles/741.
Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices. The Fourth Circuit, in contrast, has recognized the great value of government speech to the public, while remaining mindful that such value turns on the public’s ability to ascertain the speech’s governmental source and has thus insisted that government remain meaningfully accountable to the public for its speech as a condition of claiming the government speech defense. As Judge Wilkinson so elegantly observed, “[i]t is vital to the health of our policy that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.” By demanding meaningful transparency as a condition of the government’s ability to claim speech as its own, the Fourth Circuit has been asking exactly the right questions in its government speech cases to date (even though reasonable people might disagree on the answers), thus shining a light on democracy’s (sometimes dark) waters.
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