Why is government speech problematic? The unnecessary problem, the unnoticed problem, and the big problem

Denver University Law Review

Volumn 87, Issue 4, 2010, Pages 945-970

  Smith, Steven D ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 79951909890     PISSN: 08839409     EISSN: None     Source Type: Journal    
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References (104)

1. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1139 (2009) (Stevens, J., concurring).
2. See id. at 1131 (majority opinion).
3. Justice Stevens and Justice Scalia both noted the issue. Id. at 1139 (Stevens, J., concurring) ;
4. id. at 1139-40 (Scalia, J., concurring).
5. 17TH Annual Ira C. Rothgerber Conference co-hosted by the Byron R. White Center for the Study of American Constitutional Law and the Denver University Law Review. The conference, which focused on government speech, was held in Denver, Colorado on January 22.
6. See, e.g., Douglas Laycock, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 NW. U. L. REV. 1, 7-8 (1986) ("In my view, the establishment clause absolutely disables the government from taking a position for or against religion.... The government must have no opinion because it is not the government's role to have an opinion. "). Michael Perry elaborates on the theme: No matter how much some persons might prefer one or more religions, government may not take any action based on the view that the preferred religion or religions are, as religion, better along one or another dimension of value than one or more other religions or than no religion at all. So, for example, government may not take any action based on the view that Christianity, or Roman Catholicism, or the Fifth Street Baptist Church, is, as a religion or church, closer to the truth than one or more other religions or churches or than no religion at all-or, if not necessarily closer to the truth, at least a more authentic reflection of the religious history and culture of the American people.... Similarly, no matter how much some persons might prefer one or more religious practices, government may not take any action based on the view that the preferred practice or practices are, as religious practice..., better-truer or more efficacious spiritually, for example, or more authentically American-than one or more other religious or nonreligious practices or than no religious practice at all.
7. MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES 15 (1997).
8. RONALD DWORKIN, A MATTER OF PRINCIPLE 191-92 (1985) ;
9. JOHN RAWLS, POLITICAL LIBERALISM 190-95 (expanded ed. 2005).
10. W. Va. State Bd. of Educ. v. Barnette, 319 U. S. 624, 642 (1943).
11. Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 818-22 (2001). (Pubitemid 33649667)
12. Thus, Rubenfeld suggests that his anti-orthodoxy principle would forbid government to "declare the truth about... how many gods there are." Id. at 819. And he indicates, perhaps somewhat ambiguously, that "the law has no power to tell anyone what to think."
13. Id. at 821. In a similar vein, another theorist argues that "evaluative neutrality" by government toward the ideas communicated through speech "is central to our understanding of freedom of expression. " Larry Alexander, Is There a Right of Freedom of Expression? 177-78 (2005). However, Alexander goes on to argue that evaluative neutrality is impossible: he thus finds the commitment to freedom of expression-and liberalism generally-deeply paradoxical.
14. See id. at 147-81.
15. See Robert D. Kamenshine, The First Amendment's Implied Political Establishment Clause, 67 CAL. L. REV. 1104 (1979).
16. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U. S. 853, 872 (1982).
17. Barnette, 319 U. S. at 642 (emphasis added). For my criticisms of the pronouncement
18. see Steven D. Smith, Barnette's Big Blunder, 78 CHI.-KENT L. REV. 625, 628 (2003).
19. See also ALEXANDER, supra note 8, at 176-81.
20. Barnette, 319 U. S. at 642.
21. PAUL TILLICH, A HISTORY OF CHRISTIAN THOUGHT: FROM ITS JUDAIC AND HELLENISTIC ORIGINS TO EXISTENTIALISM 305 (Carl E. Braaten ed., 1967).
22. In his comment on Professor Randall Bezanson's paper in this symposium, The Manner of Government Speech, 87 DENV. U. L. REV. 809 (2010), Professor Robert Nagel suggests that one unintended but happy consequence of the rigorous implementation of Bezanson's proposal would be that "a blessed silence would descend upon the land."
23. Robert F. Nagel, A Comment on "The Manner of Government Speech", 87 DENV. U. L. REV. ONLINE 85 (2010), http://denverlawreview.org/ storage/Nagel-BezansonComment.pdf. Neither Nagel nor Bezanson actually expects this surmise to be realized, however.
24. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U. S. 37, 62 (1983) (Brennan, J., dissenting) ("Viewpoint discrimination is censorship in its purest form....").
25. See, e.g., Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009).
26. Once again, the Summum case illustrates this "escape valve" function of the government speech doctrine. However, the doctrine also serves to provide an escape valve from other sometimes inconvenient doctrines, such as the Abood doctrine, Abood v. Detroit Bd. of Educ., 431 U. S. 209, 260 (1977) ;
27. see also infra notes 57-58 and accompanying text, forbidding some compulsory contribution provisions which have been understood to require compelled affirmations by unwilling speakers.
28. See, e.g., Johanns v. Livestock Mktg. Ass'n, 544 U. S. 550, 558-59 (2005).
29. This issue is discussed in more detail in Abner S. Greene, (Mis) Attribution, 87 DENV. U. L. REV. 833, 834-839 (2010).
30. Summum, 129 S. Ct. at 1132-34.
31. The problem manifests itself in the difficulty of reconciling cases like Rust v. Sullivan, 500 U. S. 173, 177-78 (1991)
32. in which the Court upheld a restriction forbidding recipients of federal health care funding from engaging in abortion counseling, with cases like Rosenberger v. Rector and Visitors of University of Virginia, 515 U. S. 819, 845-46 (1995), in which the Court struck down a University of Virginia policy prohibiting funding for speakers and newspapers from being allocated to religious speakers or media. For a discussion of the difficulties
33. see ALEXANDER, supra note 8, at 87-88.
34. Scholars have struggled to make the distinction operable. See, e.g., Robert C. Post, Subsidized Speech, 106 YALE L. J. 151 (1996) ;
35. Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84 (1998).
36. This assertion might provoke the objection, suggested by Professor Chen in his comments on this paper, that viewpoint discrimination in governmental expression is in one crucial respect unlike viewpoint discrimination in governmental regulation because the latter kind of censorship eliminates some ideas from the marketplace, and thereby makes them unavailable for consideration and possible acceptance. See Alan Chen, Right Labels, Wrong Categories: Some Comments on Steven D. Smith's "Why is Government Speech Problematic?", 87 DENV. U. L. REV. ONLINE 78 (2010), http://www.denverlawreview.org/storage/ Chen-RightLabels.pdf. But in fact much viewpoint discriminatory regulation affects only the time, place, and manner of expression. Such regulation disadvantages some ideas relative to others, to be sure, but it does not remove any ideas from the intellectual or conversational marketplace. Geoffrey Stone describes these as "modest viewpointbased restrictions."
37. Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 200 (1983).
38. Geoffrey Stone, a leading proponent of the content neutrality approach, explains that a non-neutral speech regulation "distorts public debate." Id. at 198. "This is so, not because such a law restricts 'a lot' of speech, but because by effectively excising a specific message from public debate, it mutilates 'the thinking process of the community'...." Id.
39. Cf. R. A. V. v. City of St. Paul, Minn., 505 U. S. 377, 392 (1992) (condemning viewpoint discriminatory ordinance because "St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules").
40. One of the most often quoted statements in the free speech tradition is from Milton: And though all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously by licencing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the wors, in a free and open encounter.
41. JOHN MILTON, AREOPAGITICA (1644)
42. reprinted in JOHN MILTON, AREOPAGITICA AND OTHER POLITICAL WRITINGS OF JOHN MILTON 3, 45 (1999).
43. For an argument that government speech can distort the marketplace of ideas, see Kamenshine, supra note 9, at 1105-06.
44. Cf. Lee C. Bollinger & Geoffrey R. Stone, Epilogue to ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 311, 313 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002) (observing that "the massive presence of government in the society presents extraordinary opportunities for it to distort the marketplace of ideas"). For a painstaking analysis demonstrating the difficulty
45. see ALEXANDER, supra note 8, at 82-102.
46. A robust enough Miltonian confidence might be undaunted by these disadvantages. Strictly speaking, Milton did not say that the competition needed to be fair but only "free and open," and that truth needed to be "in the field." See MILTON supra note 24, at 45. Like David, if it is allowed to compete, truth can perhaps vanquish Goliath-like falsehoods. Maybe. But the view is remarkable for its optimism.
47. SANFORD LEVINSON, WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES 79-80 (1998).
48. For an argument to this effect, see Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 18-22 (2000).
49. See George Rutherglen, Private Law and Public Reason, 92 VA. L. REV. 1503, 1504 (2006).
50. See David Luban, The Posner Variations (Twenty-seven Variations on a Theme by Holmes), 48 STAN. L. REV. 1001, 1025 (1996). (Pubitemid 126406373)
51. See William H. Pryor, Jr., Madison's Double Security: In Defense of Federalism, the Separation of Powers, and the Rehnquist Court, 53 ALA. L. REV. 1167, 1169-72 (2002).
52. See Steven D. Smith, Educating for Liberalism, 42 U. C. DAVIS L. REV. 1039, 1043-46 (2009).
53. I have discussed these alternatives in more detail elsewhere. See id.;
54. Steven D. Smith, Toleration and Liberal Commitments, in NOMOS XLVIII: TOLERATION AND ITS LIMITS 243, 243-71 (Melissa S. Williams & Jeremy Waldron eds., 2008) ;
55. Steven D. Smith, Recovering (from) Enlightenment?, 41 SAN DIEGO L. REV. 1263, 1283-87 (2004).
56. It is possible, for example, to understand the central free speech commitment not in terms of a commitment to neutrality, or to a level-playing-field marketplace of ideas, but rather in terms of a prohibition on governmental suppression of ideas (subject, no doubt, to various qualifications, as in the standard categories of unprotected speech). By this understanding, viewpoint discriminatory restrictions might nevertheless be disfavored-not so much because government has deviated from neutrality or skewed the marketplace, but rather because the discrimination evidences a purpose to suppress.
57. In this vein, Abner Greene argues vigorously against a general requirement of neutrality. See Greene, supra note 29, at 18-22. "Government may, and should, use its speech powers to advance specific conceptions of the good, even if those conceptions are contested, controversial, or seen as favoring a particular viewpoint."
58. Id. at 5. Nonetheless, Greene "carves out an exception for government religious speech," which he would forbid. Id.
59. See RAWLS, supra note 5, at 194-95.
60. Thus, in the recent Ten Commandments cases, the Justices disagreed strenuously about what religious neutrality entails, but they did not seem to disagree about whether government is supposed to be neutral towards religion. See, e.g., McCreary County, Ky. v. ACLU, 545 U. S. 844, 860-62 (2005).
61. In the most obvious recent opportunity for application of the "no endorsement" doctrine-namely, the Ten Commandments decisions-the Supreme Court referred to rationales from the "no endorsement" cases but did not explicitly apply the "no endorsement" doctrine.
62. See id. at 857;
63. Van Orden v. Perry, 545 U. S. 677, 684-87 (2005).
64. See, e.g., County of Allegheny v. ACLU, 492 U. S. 573 (1989).
65. See Steven D. Smith, Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past? 2-3 (San Diego Legal Studies Research Paper No. 06-17, 2005), available at http://ssrn.com/abstract= 728663 (elaborating on religious references in presidential speeches).
66. For criticism of the divisiveness rationale, see Richard W. Garnett, Religion, Division, and the First Amendment, 94 GEO. L. J. 1667, 1723 (2006).
67. For more detailed discussion, see Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. PA. L. REV. 149, 202-04 (1991).
68. For a helpful discussion of this issue, see Larry Alexander, Liberalism, Religion, and the Unity of Epistemology, 30 SAN DIEGO L. REV. 763, 773 (1993).
69. In this vein, Douglas Laycock asserts that "[t]he government must have no opinion [about religion] because it is not the government's role to have an opinion. " Laycock, supra note 4, at 8.
70. 2 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: ESTABLISHMENT AND FAIRNESS 60 (2008).
71. Id.
72. Or perhaps they are so motivated, at least implicitly. Doesn't the goal of inculcating (what one believes to be) truth entail or include the goal of dispelling (what one believes to be) corresponding falsehoods?
73. For a recent, much publicized instance, see Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 708-09 (M. D. Pa. 2005).
74. Cf. GREENAWALT, supra note 46, at 61 ("Although the state unavoidably carries out actions that imply that certain religious doctrines about social justice and order are unsound, never, or rarely, need its policies imply the correctness of any particular religious understanding.").
75. For my objections to the endorsement doctrine, see Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 MICH. L. REV. 266 (1987).
76. See infra note 66 and accompanying text.
77. The undermining of associations is no trivial matter. Tocqueville observed that Americans had a penchant for voluntary associations, and that in comparison with people in less democratic nations, Americans seemed to be especially adept at what he called the "skill of association. " 2 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (1840)
78. reprinted in ALEXIS DE TOCQUEVILLE DEMOCRACY IN AMERICA AND TWO ESSAYS ON AMERICA 493, 600 (Gerald E. Bevan trans., 2003). And he regarded this capacity for association to be vital to democracy; indeed, "if [men living in democratic countries] failed to acquire the practice of association in their day-to-day lives, civilization itself would be in danger."
79. Id. at 597. If Tocqueville was right, then practices that would undermine willingness to participate in and contribute to associations are not a negligible concern. And although the matter and the causal connections are no doubt complex, some observers today perceive a decline in Americans' propensity to associate.
80. See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 27 (2000).
81. See Kamenshine, supra note 9, at 1105-06.
82. See, e.g., Wooley v. Maynard, 430 U. S. 705, 713-14 (1977). For an analysis questioning this view
83. see Larry Alexander, Compelled Speech, 23 CONST. COMMENT. 147 (2006).
84. 496 U. S. 1, 13-15 (1990).
85. 431 U. S. 209, 235-37 (1977).
86. This harm is related, obviously, to the first harm I have discussed-namely, the misleading nature of the communications. But that harm is inflicted on recipients of the misleading speech and, arguably, on the marketplace of ideas generally. By contrast, the harm of compelled affirmation is suffered by the unwilling speaker-namely, the member whose contributions are used to support a message he does not support.
87. On universities, see STANLEY FISH, SAVE THE WORLD ON YOUR OWN TIME 18-19 (2008).
88. See STEWART GREENLEAF, FEDERALIST SOC'Y, REPORT ON ABA AMICUS BRIEFS 5, http://www.fed-soc.org/doclib/20070321-AmicusArticle.pdf (last visited Apr. 22, 2010). The Report concludes: The ABA has filed numerous amicus briefs over the past two decades, often in cases involving contentious issues that split the legal community, including ABA members. The constitutionality of the line-item veto and independent counsel law, the limitations on capital punishment, and the scope of the Fourth Amendment and the good-faith exception to the exclusionary rule are among the areas addressed by ABA amicus briefs. But the breadth and controversial nature of at least some of this activity is not proscribed by the Association's policies. The standards governing the approval of amicus briefs are broad enough to allow the Standing Committee on Amicus Briefs and the Board of Governors to sign off on briefs supporting controversial positions on which the ABA has not yet adopted any policy. At present, Board of Governors discretion, and the potential political effects of especially vocal ABA entities objecting to some other committee's proposed brief, are the principal blocks on the process. Id.
89. For a discussion, see Eugene Volokh, More on the AALS "Boycott" of Hotel Because of Owner's Contribution to Anti-Same-Sex Marriage Ballot Initiative, VOLOKH CONSPIRACY, Sept. 5, 2008, http://volokh.com/posts/ 1220638833.shtml.
90. Suppose, for example, that the BSA in my hypothetical case has traditionally been a generally democratic organization. It has an executive board, but the board has typically performed internal and largely routine administrative functions; any major decisions have been the product of wide-ranging consultation within the organization. Perhaps most association members have paid scant attention to the selection and doings of the national leaders and would have difficulty even remembering their names or picking them out of a line-up. In this situation, if the (previously almost anonymous) leaders then make major decisions and issue controversial public statements for the organization on sensitive issues, there will be an understandable sense that these leaders have "commandeered" the organization for their purposes.
91. To give just one example, in some churches, such as the Roman Catholic church, the upper leadership may historically have been viewed as having considerable authority to determine and declare the official views of the association, without a great deal of input from ordinary members. In such an association, a statement made by leaders but not supported by many members will not cause the harms mentioned above to the same extent. Thus, if an association is understood to be "top-down" and hierarchical with a strong central authority, statements emanating from that authority are not as likely to be understood as an expression of the views of the lower-level membership. And members who contribute time, effort, and money to an organization which they understand to be governed by a strong centralized authority will do so knowing that the authority may take positions or issue statements without consulting with the membership: that is the sort of association to which they choose to contribute.
92. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 44 (2004) (O'Connor, J., concurring).
93. Id. at 33-45;
94. cf. Douglas Laycock, Theology Scholarships, The Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 HARV. L. REV. 155, 235 (2004) (observing that "[O'Connor's] rationale is unconvincing both to serious nonbelievers and to serious believers"). Steven H. Shiffrin observes, "I am sure that a pledge identifying the United States as subject to divine authority is asserting the existence and authority of the divine."
95. Steven H. Shiffrin, The Pluralistic Foundations of the Religion Clauses, 90 CORNELL L. REV. 9, 70 (2004). And he adds that "pretending [that this and similar expressions] are not religious is simply insulting."
96. Id. at 71.
97. See, e.g., ROBERT N. BELLAH, Civil Religion in America, in BEYOND BELIEF: ESSAYS ON RELIGION IN A POST-TRADITIONALIST WORLD 168, 168 (1970) ("[T]here actually exists alongside of and rather clearly differentiated from the churches an elaborate and well-institutionalized civil religion in America.").
98. I discuss this tradition at much greater length in Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions (forthcoming 2010).
99. For an exchange of views on the subject, compare Frederick Mark Gedicks & Roger Hendrix, Uncivil Religion: Judeo-Christianity and the Ten Commandments, 110 W. Va. L. REV. 275 (2007)
100. with Steven D. Smith, "Sectarianizing" Civil Religion? A Comment on Gedicks and Hendrix, 110 W. VA. L. REV. 307 (2007).
101. To be sure, even if it turns out that the core underlying objection is to sectarian government speech, not to religious speech per se, the objection still might find a more secure foothold in the constitutional text and doctrine when directed against religious sectarian speech than when focused on nonreligious sectarian statements. Even so, it might be that the most compelling objection is to sectarian speech, not to religious speech as such, and that such speech is problematic not because government is violating an obligation of neutrality, but because government is speaking and acting in ways extraneous to its proper purposes.
102. Abner Greene points out to me that concerns about institutional integrity and about institutional capture are not entirely coextensive: even a majority of members, acting openly and in complete accord with an organization's procedures, might cause the organization to act or speak in ways that are extraneous or contrary to its character and purpose. This point seems right, although in such cases it would also be arguable that the association has in effect altered its self-understanding of its character and purposes.
103. Alan Chen surmises that consensus about the proper role or function of government is unlikely to develop.
104. See Chen, supra note 22. It would be hard to disagree.