Governmental Speech in the Democratic Process
David P. Haberman · Open Scholarship Institutional Repository (Washington University in St. Louis) · 1987
Government, in order to be effective, must actively communicate with its citizens.'The first amendment, however, neither protects nor expressly prohibits governmental speech. 2 Courts have interpreted the first amendment to restrict governmental expression that interferes with private speech 3 or the democratic process, 4 but have not formulated constitutional guidelines for the use of public resources to promote controversial ideas.5 This Note explores constitutional restraints on government's ability to use public funds for such purposes.Part I examines government's role in the "marketplace of ideas."Part II describes the forms of authority government relies on to justify expenditures for expressive activity.Part III analyzes recent court opinions imposing constitutional restraints on various forms of governmental speech.Finally, Part IV concludes that gov-1.Government communicates with the public in "the form of oral communications, such as speeches, statements, press conferences, and fireside chats, as well as written communications, such as pamphlets, books, periodicals, and other publications."T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION, 697 (1970).See also infra note 5.2. The first amendment states, "Congress shall make no law... abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."U.S. CONT.amend.I. See, eg., Columbia Broadcasting System v. Democratic Nat'l Comm., 412 U.S. 94, 139 n. 7 (1972) (Stewart, J., concurring) ("The purpose of the first amendment is to protect private expression .. "); Oklahoma Press Publishing Co.v. Walling, 327 U.S. 186, 193 (1945) (first amendment does not regulate government expression which in no way restrains private expression); Muir v. Alabama Educ.Television Comm'n, 688 F.2d 1033, 1038 (5th Cir.1982) ("To find that the government is without First Amendment protection is not to find that the government is prohibited from speaking ... ").3. See infra notes 43-55 and accompanying text.4. See infra notes 36-49 and accompanying text. 5. Government must communicate with the public.Government officials, however, may use tax dollars improperly to promote their partisan goals, enhance their careers, or act against the reputation of others.F. HAIMAN, SPEECH AND LAW IN A FREE SOCIETY 410 (1981).Government also may use its power to communicate to destroy the underpinnings of democratic government."The power to teach, inform, and lead is also the power to indoctrinate, distort judgment, and perpetuate the current regime."Yudof, When Government Speaks: Toward a Theory of Government Speech and the First Amendment, 57 TEX.L. REV.863, 865 (1979) [hereinafter Government Speech].See generally M. YUDOF, WHEN GOVERNMENT SPEAKS 51-66 (1983) (discussing the vast opportunities for abuse of government communication).Scholars have advocated differing views of the constitutional propriety of government expression.See, e.g.