Government speech 2.0

Denver University Law Review

Volumn 87, Issue 4, 2010, Pages 899-943

  Norton, Helen ^a   Citron, Danielle Keats ^b  

^a UNIVERSITY OF COLORADO   (United States)

^b UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 79951925964     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (324)

1. See, e.g., Transparency and Open Government, 74 Fed. Reg. 4685 (Jan. 21, 2009) (exhorting executive departments and agencies to "use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector") ; see also Press Release, White House Press Secretary, White House Announces Open Government Website, Initiative (May 21, 2009), available at http://www.whitehouse.gov/the-press-office/White-House-Announces- Open-Government-Website-Initiative/(announcing plan for engaging public through White House blog, wiki, and website).
2. The White House Blog, http://www.whitehouse.gov/blog (last visited Apr. 1, 2010).
3. ExchangesConnect, http://connect.state.gov (last visited Apr. 1, 2010).
4. Victor E. Riche, Presentation to the U. S. Dep't of Homeland Sec., Government 2.0: Privacy and Best Practices Workshop (June 22, 2009) ;
5. L. Gordon Crovitz, Information Age: From Wikinomics to Government 2.0, WALL ST. J., May 12, 2008, at A13.
6. The Federal Emergency Management Agency, FEMA's YouTube Channel, http://www.youtube.com/user/fema?blend=1&ob=4 (last visited Apr. 1, 2010).
7. See Chris Snyder, Government Agencies Make Friends with New Media, Epicenter (Mar. 25, 2009), http://www.wired.com/epicenter/2009/03/government- agen/.
8. Gregory S. Williams, Pentagon Using Social Network Sites to Recruit, Medianews (May 4, 2009), http://www.mail-archive.com/medianews@etskywarn. net/msg03766.html.
9. Id.
10. Daniel Castro & Robert Atkinson, The Next Wave of E-Government, State Tech, http://www.statetechmag.com/events/updates/the-next-wave-of-e-government. html (last visited May 19, 2010).
11. See Emily Montandon, Do Twitter and Other Social Networks Shield Anonymous Complainers on Topics like Health Care Reform?, GOV'T TECH., Nov. 2, 2009, at 6.
12. Dan Froomkin, It's Time for a Wiki White House, Nieman Watchdog Nov. 25, 2008, http://www.niemanwatchdog.org/index.cfm?fuseaction=background. view&backgrounddid=00307. For more extensive discussion of the benefits as well as the dangers of government's use of Web 2.0 and similar expressive technologies
13. see Danielle Keats Citron, Fulfilling Government 2.0's Promise With Robust Privacy Protections, 78 GEO. WASH. L. REV. (forthcoming 2010) (describing government's increasing use of social network sites and urging government to treat Facebook, Twitter, and similar sites "as one-way mirrors, where individuals can see government's activities and engage in policy discussions but where government cannot use, collect, or distribute individuals' social media information").
14. See Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1139 (2009) (Stevens, J., concurring).
15. See Rust v. Sullivan, 500 U. S. 173, 202-03 (1991) (health care providers' discussions with patients at family planning clinics).
16. See Garcetti v. Ceballos, 547 U. S. 410, 413-14, 425-26 (2006) (prosecutor's memorandum criticizing the police).
17. See Johanns v. Livestock Mktg. Ass'n, 544 U. S. 550, 553 (2005) (television and print campaign promoting beef products).
18. See Summum, 129 S. Ct. at 1131 (monuments donated by private party for display by government in public park).
19. See Edward Lee, Warming Up to User-Generated Content, 2008 U. ILL. L. REV. 1459, 1504 ("[T]he Internet as a tool of mass communication [has] become only better, quicker, and more empowering for the ordinary individual.... [O]rdinary people [are enabled] to participate in the marketplace of ideas, potentially reaching audiences never imaginable before.").
20. See, e.g., Carlisle George & Jackie Scerri, Web 2.0 and User-Generated Content: Legal Challenges in the New Frontier, J. INFO. L. & TECH (2007), http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007-2/george- scerri/george-scerri.pdf ("Discovering the identity of an online publisher... can sometimes be difficult.... [T]here may be situations where an IP address cannot be traced to an individual, such as where a person logs on using a roaming IP, or where a person logs on from an Internet Café.").
21. For a sampling of views on the longstanding question of whether First Amendment doctrine should vary according to the type of expressive technologies involved, see Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 891 (2010) ("We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.") ;
22. Reno v. ACLU, 521 U. S. 844, 868-70 (1997) (describing the Court's "special justifications for the regulation of the broadcast media that are not applicable to other speakers" and concluding that there is "no basis for qualifying the level of First Amendment scrutiny that should be applied" to the Internet) ;
23. Jerry Berman & Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 YALE L. J. 1619, 1633-34 (1995) (calling for fundamental change in First Amendment doctrine in response to the "revolutionary" nature of emerging expressive technologies) ;
24. Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 YALE L. J. 1639, 1647 (1995) ("The critical question is whether 'new wine can be poured successfully into an old bottle,' or whether new legal norms must be devised for the governance of the Networld.")
25. (citation omitted) ; Thomas G. Krattenmaker & L. A. Powe, Jr., Converging First Amendment Principles for Converging Communications Media, 104 YALE L. J. 1719, 1720 (1995) (urging courts to discard the notion of special rules for broadcasters and instead realize "that traditional First Amendment principles-not yet another set of unique rules-are quite well suited to guide and constrain public regulation of these new technologies") ;
26. Lawrence Lessig, The Path of Cyberlaw, 104 YALE L. J. 1743, 1743 (1995) (discussing the debate over whether "this new space, cyberspace, [should] be regulated by analogy to the regulation of other space, not quite cyber, or should we give up analogy and start anew") ;
27. Timothy Wu, Application-Centered Internet Analysis, 85 VA. L. REV. 1163, 1167 (1999) ("Reno's one rule for the entire Internet may begin to lose its luster and perhaps feel ridiculous. The great variation among Internet applications is hard to fit into one First Amendment box.").
28. See 2 ZECHARIAH CHAFEE, JR., GOVERNMENT AND MASS COMMUNICATIONS 723 (1947) ("Now it is evident that government must itself talk and write and even listen. ") ;
29. THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 698 (1970) ("Participation by the government in the system of freedom of expression is an essential feature of any democratic society. It enables the government to inform, explain, and persuade-measures especially crucial in a society that attempts to govern itself with a minimum use of force. Government participation also greatly enriches the system; it provides the facts, ideas, and expertise not available from other sources.") ;
30. Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1825 (1987) ("[I]t is probably not too outlandish an exaggeration to conclude that government organizations would grind to a halt were the Court seriously to prohibit viewpoint discrimination in the internal management of speech.").
31. See generally JOSEPH TUSSMAN, GOVERNMENT AND THE MIND (1977) ;
32. MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983).
33. 500 U. S. 173 (1991).
34. See Johanns v. Livestock Mktg. Ass'n, 544 U. S. 550, 553 (2005) (explaining that the government's own speech is "exempt" from free speech clause scrutiny) ;
35. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1131 (2009) ("The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. A government entity has the right to 'speak for itself.' Indeed it is not easy to imagine how government could function if it lacked this freedom.") (citations omitted).
36. See Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U. S. 217, 235 (2000) ("When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position. ") ;
37. Nat'l Endowment for the Arts v. Finley, 524 U. S. 569, 598 (1998) (Scalia, J., concurring) ("It is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects-which is the main reason we have decided to elect those who run the government, rather than save money by making their posts hereditary."). Note, however, that constitutional constraints other than the free speech clause may also apply to government's own expression.
38. See Summum, 129 S. Ct. at 1139 (Stevens, J., concurring) ("For even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution's other proscriptions, including those supplied by the Establishment and Equal Protection Clauses.").
39. See Legal Services Corp. v. Velazquez, 531 U. S. 533, 541 (2001) ("The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding."). Some Justices earlier signaled their growing recognition of the doctrine's possibility.
40. See, e.g., Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U. S. 94, 140 n. 7 (1973) (Stewart, J., concurring) ("Government is not restrained by the First Amendment from controlling its own expression. ") ;
41. Keller v. State Bar of Cal., 496 U. S. 1, 12-13 (1990) (noting that "[i]f every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed").
42. Rust, 500 U. S. at 194.
43. Id. at 204 (Blackmun, J., dissenting).
44. 515 U. S. 819 (1995).
45. Id. at 833;
46. see also id. ("When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message.").
47. 529 U. S. 217 (2000).
48. Id. at 234-35 (citations omitted). Justice Souter further explained this distinction in his dissenting opinion in Nat'l Endowment for the Arts v. Finley, where he distinguished government as patron of private art from government as speaker and buyer: [T]he government is of course entitled to engage in viewpoint discrimination: if the Food and Drug Administration launches an advertising campaign on the subject of smoking, it may condemn the habit without also having to show a cowboy taking a puff on the opposite page; and if the Secretary of Defense wishes to buy a portrait to decorate the Pentagon, he is free to prefer George Washington over George the Third.
49. Nat'l Endowment for the Arts v. Finley, 524 U. S. 569, 610-11 (1998) (Souter, J., dissenting) ;
50. see also id. at 611 ("The Government freely admits, however, that it neither speaks through the expression subsidized by the NEA, nor buys anything for itself with its NEA grants."). Although the Finley majority did not characterize the NEA grants program as the government's own speech, it concluded that different and more deferential rules may apply to arts funding decisions that require government to assess quality in allocating scarce resources from those that apply to government programs that "indiscriminately" encourage a diversity of views from private speakers.
51. See id. at 586 ("In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately 'encourage a diversity of views from private speakers.' The NEA's mandate is to make esthetic judgments, and the inherently content-based 'excellence' threshold for NEA support sets it apart from the subsidy at issue in Rosenberger....") (citation omitted).
52. 531 U. S. 533 (2001).
53. Id. at 541
54. (quoting Rosenberger, 515 U. S. at 833) (citation omitted).
55. Id. at 542-43.
56. See Southworth, 529 U. S. at 235 ("In the instant case, the speech is not that of the University or its agents. It is not, furthermore, speech by an instructor or a professor in the academic context, where principles applicable to government speech would have to be considered.").
57. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U. S. 47, 61 n. 4 (2006) ("The military recruiters' speech is clearly Government speech.").
58. See Velazquez, 531 U. S. at 542 ("The attorney defending the decision to deny benefits will deliver the government's message in the litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client."). The Court's characterization of government editors' and public libraries' selection decisions has been more opaque, emphasizing such decisions' expressive character, but falling short of characterizing them as government speech entirely exempt from speech clause scrutiny.
59. See Ark. Educ. Television Comm'n v. Forbes, 523 U. S. 666, 674 (1998) ("When a public broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity. Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts.") (citations omitted) ;
60. United States v. Am. Library Ass'n, 539 U. S. 194, 209 n. 4 (2003) ("A library's decision to use filtering software is a collection decision, not a restraint on private speech.").
61. 544 U. S. 550 (2005).
62. Id. at 562.
63. Id. at 556.
64. Id. at 555.
65. Compare id. at 566 ("We have only the funding tagline itself, a trademarked term that, standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad.")
66. with id. at 577-78 (Souter, J., dissenting) ("[R]eaders would most naturally think that ads urging people to have beef for dinner were placed and paid for by the beef producers who stand to profit when beef is on the table. No one hearing a commercial for Pepsi or Levi's thinks Uncle Sam is the man talking behind the curtain. Why would a person reading a beef ad think Uncle Sam was trying to make him eat more steak?").
67. See id. at 562 (majority opinion) ;
68. id. at 574 (Souter, J., dissenting) ("The first point of certainty is the need to recognize the legitimacy of government's power to speak despite objections by dissenters whose taxes or other exactions necessarily go in some measure to putting the offensive message forward to be heard. To govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the 'marketplace of ideas' would be out of the question. ").
69. Id. at 562 (majority opinion).
70. Id. at 563-64.
71. Id. at 578-79 (Souter, J., dissenting).
72. Id. at 579 n. 8;
73. see also id. ("The Court merely observes that no precedent requires the Government to show its hand when it seeks to defend a targeted assessment by claiming government speech. That is of course to be expected, since the government-speech doctrine is so new....") (citation omitted).
74. See Randall P. Bezanson, The Manner of Government Speech, 87 DENV. U. L. REV. 809, 816 (2010) ("[G]overnment is a speaker that enjoys no individual liberty or free will, and whose need to express itself is limited by a different constitutional role and duty."). In contrast, the Court has recognized the First Amendment value of anonymous speech by private actors.
75. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 336, 357 (1995) (striking down state ban on the distribution of unsigned political leaflets).
76. Rust v. Sullivan, 500 U. S. 173, 180 (1991) (explaining that employees of clinics receiving federal funding were "expressly prohibited from referring a pregnant woman to an abortion provider, even upon specific request.").
77. Id. (citation omitted). Although the regulations did not require that the government be identified as the message's source, the majority observed that "[n]othing in [the Title X regulations] requires a doctor to represent as his own any opinion that he does not in fact hold."
78. Id. at 200.
79. See, e.g., Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1394-96 (2001) (arguing that patients could mistakenly attribute the government's views to their doctors) ;
80. Robert C. Post, Subsidized Speech, 106 YALE L. J. 151, 174 (1996) (same).
81. See Rust, 500 U. S. at 200.
82. 547 U. S. 410 (2006).
83. Id. at 413-14.
84. Id. at 421-22
85. (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U. S. 819, 833 (1995) ("[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.")).
86. See Garcetti, 547 U. S. at 421-22. The Garcetti majority left open the possibility that public educators' speech that raises issues of academic freedom might be subject to a different standard.
87. Id. at 425 ("We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.").
88. Id. at 438 (Souter, J., dissenting).
89. Helen Norton, Constraining Public Employee Speech: Government's Control of Its Workers' Speech to Protect Its Own Expression, 59 DUKE L. J. 1 (2009) (arguing that the First Amendment should be understood to permit government to claim as its own-and thus control as government speech free from First Amendment scrutiny-only the speech of public employees that it has specifically hired to deliver a particular viewpoint that is transparently governmental in origin and thus open to the public's meaningful credibility and accountability check).
90. See id. at 14-15 (canvassing examples).
91. 574 F.3d 696 (9th Cir. 2009).
92. Id. at 708-09. The circuits are currently split on this issue. The Third Circuit held that the First Amendment still protects police officers' truthful testimony even after Garcetti on the grounds that such testimony is their duty as citizens as well as police officers. Reilly v. City of Atlantic City, 532 F.3d 216, 231 (3d Cir. 2008) ("[T]he act of offering truthful testimony is the responsibility of every citizen, and the First Amendment protection associated with fulfilling that duty of citizenship is not vitiated by one's status as a public employee.").
93. 578 F.3d 518 (7th Cir. 2009).
94. Id. at 520-21.
95. Id. at 522.
96. Id. at 523 (citations omitted).
97. 129 S. Ct. 1125 (2009).
98. Id. at 1129.
99. Id. at 1129-30.
100. Id. at 1130.
101. See id. at 1131.
102. Id. Summum also alleged that the City violated the Free Speech and Establishment Clauses of the Utah Constitution. Complaint ¶¶ 31-39, Summum v. Pleasant Grove City, No. 2:05CV00638 DB, 2005 WL 2918243, (D. Utah July 29, 2005).
103. However, neither of these claims were raised on appeal. Summum v. Pleasant Grove City, 483 F.3d 1044, 1048 n. 3 (10th Cir. 2007). Although the plaintiff had a number of strategic motivations, this decision can be explained in large part by the fact that prevailing on an establishment clause claim would result in the removal of the Ten Commandments monument, rather than requiring the inclusion of Summum's monument.
104. See Bernadette Meyler, Summum and the Establishment Clause, 104 NW. U. L. REV. COLLOQUY 95, 95 (2009), http://www.law.northwestern.edu/lawreview/ colloquy/2009/32/LRColl2009n32Meyler.pdf;
105. Nelson Tebbe, Privatizing and Publicizing Speech, 104 NW. U. L. REV. COLLOQUY 70, 73 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/ 30/LRColl2009n30Tebbe.pdf. Although the Court thus considered only the free speech clause claim, the potential establishment clause issues proved distracting to many. Indeed, Justice Scalia concurred separately to emphasize his view that the city's display of the Ten Commandments did not violate the Establishment Clause.
106. Summum, 129 S. Ct. at 1139-40 (Scalia, J., concurring).
107. Summum, 129 S. Ct. at 1132.
108. Id. at 1134
109. (quoting Johanns v. Livestock Mktg. Assn., 544 U. S. 550, 560-61 (2005)) (citation omitted).
110. Summum, 129 S. Ct. at 1134 ("[T]he City took ownership of that monument and put it on permanent display in a park that it owns and manages and that is linked to the City's identity. All rights previously possessed by the monument's donor have been relinquished. The City's actions provided a more dramatic form of adoption than the sort of formal endorsement that respondent would demand, unmistakably signifying to all Park visitors that the City intends the monument to speak on its behalf.").
111. See id. at 1142 (Souter, J., concurring) ("[T]he best approach that occurs to me is to ask whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land.").
112. See id. at 1132-33 (majority opinion) ("Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance.").
113. See id. at 1133 ("We think it is fair to say that throughout our Nation's history, the general government practice with respect to donated monuments has been one of selective receptivity.").
114. See id. ("Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land. It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely-and reasonably-interpret them as conveying some message on the property owner's behalf. In this context, there is little chance that observers will fail to appreciate the identity of the speaker.").
115. See Helen Norton, The Measure of Government Speech: Identifying Expression's Source, 88 B. U. L. REV. 587, 607-09 (2008) (describing how onlookers use a variety of "source cues" to determine a message's origins).
116. Although concurring Justices Stevens, Souter, Ginsburg, and Breyer made clear their resistance to a bright-line rule that public monuments always constitute government speech, they agreed that, under these particular circumstances, reasonable observers would understand the monuments to reflect the city's own expression. See Summum, 129 S. Ct. at 1139 (Stevens, J., concurring) ("Nor is it likely, given the near certainty that observers will associate permanent displays with the governmental property owner, that the government will be able to avoid political accountability for the views that it endorses or expresses through this means.") ;
117. id. at 1141 (Souter, J., concurring) ("And although the government should lose when the character of the speech is at issue and its governmental nature has not been made clear, I also agree with the Court that the city need not satisfy the particular formality urged by Summum....") (citation omitted).
118. Id. at 1134 (majority opinion) ;
119. see also Erwin Chemerinsky, Moving to the Right, Perhaps Sharply to the Right, 12 GREEN BAG 2d 413, 426-27 (2009) (expressing concern that Summum will permit governments to adopt demonstrations as their own on the basis of viewpoint and thus engage in "blatantly unconstitutional form[s] of viewpoint discrimination.... Perhaps a distinction could be drawn between permanent monuments, as in Summum, and transitory speech, such as demonstrations. It is impossible to explain, though, why this is a distinction that would matter under the First Amendment.").
120. See Summum, 129 S. Ct. at 1134 ("Requiring all of these jurisdictions [that have accepted monuments without such formal declarations] to go back and proclaim formally that they adopt all of these monuments as their own expressive vehicles would be a pointless exercise that the Constitution does not mandate.") ;
121. id. at 1138 (describing how government entities required to maintain viewpoint neutrality in their selection of donated monuments must either "'brace themselves for an influx of clutter' or face the pressure to remove longstanding and cherished monuments") (citation omitted).
122. See id. at 1137-38. For a powerful example of the pragmatic effects of a ruling to the contrary
123. see Mary Jean Dolan, Why Monuments are Government Speech: The Hard Case of Pleasant Grove City v. Summum, 58 CATH. U. L. REV. 7, 10 & n. 18 (2008) (detailing efforts by opponents of gay rights to donate a monument to hate crime victim Matthew Shepard to the city of Laramie, proclaiming that Matthew "[e]ntered hell October 12, 1998, in defiance of God's Warning").
124. See Edward J. Eberle, Practical Reason: The Commercial Speech Paradigm, 42 CASE W. RES. L. REV. 411, 415 (1992) ("Pragmatism further advocates solutions to First Amendment problems through careful, contextual, pragmatic reasoning.") ;
125. Richard A. Posner, Pragmatism Versus Purposivism in First Amendment Analysis, 54 STAN. L. REV. 737, 739 (2002) ("[T]he constitutional law of free speech seems on the whole, though certainly not in every respect, to be a product of the judges' (mainly they are United States Supreme Court Justices) trying to reach results that are reasonable in light of their consequences.") ;
126. Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech 10 (Chapman Univ. Sch. of Law Legal Studies Research Paper Series, Paper No. 09-36, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1481478## ("[I]n First Amendment jurisprudence, pragmatic balancing is inescapable.").
127. But see Eugene Volokh, Pragmatism v. Ideology in Free Speech Cases, 99 NW. U. L. REV. 33, 34 (2004) (discussing "the weakness of the turn from principle to pragmatism") ;
128. R. George Wright, Pragmatism and Freedom of Speech, 80 N. D. L. REV. 103, 104 (2004) (stating that pragmatic approaches "ultimately tend to drain the life from our most adequate and circumstantially appropriate moral vocabularies and cannot properly account for virtually all the class free speech values, aims, and purposes").
129. See Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative, 77 FORDHAM L. REV. 33, 38 (2008).
130. See Norton, supra note 58, at 14-15, 30-34.
131. In the four decisions characterized to date by the Court as involving competing governmental and private claims to the same speech-Rust, Johanns, Garcetti, and Summum-the Court characterized contested speech as the government's own speech so that government could control its content free from First Amendment scrutiny.
132. See Norton, supra note 79, at 599;
133. see also id. ("[G]overnment can establish its entitlement to the government speech defense only when it establishes itself as the source of that expression both as a formal and as a functional matter. In other words, government must expressly claim the speech as its own when it authorizes or creates a communication and onlookers must understand the message to be the government's at the time of its delivery.") (emphasis added). For other commentators' thoughtful discussion of these and related issues
134. see, e.g., Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377 (2001) ;
135. Caroline Mala Corbin, Mixed Speech: When Speech is Both Private and Governmental, 83 N. Y. U. L. REV. 605 (2008) ;
136. Leslie Gielow Jacobs, Who's Talking? Disentangling Government and Private Speech, 36 U. MICH. J. L. REFORM 35 (2002) ;
137. Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L. J. 983 (2005).
138. See Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 337 (1st Cir. 2009) (Torruella, J., dissenting) ("The majority's position has the potential of permitting a governmental entity to engage in viewpoint discrimination in its own governmentally-owned channels so long as the governmental entity can cast its actions as its own speech after the fact. What is to stop a governmental entity from applying the doctrine to a parade? Or official events? It is nearly impossible to concoct examples of viewpoint discrimination on government channels that cannot otherwise be repackaged ex post as 'government speech.'") (citations omitted).
139. See Planned Parenthood of S. C. Inc. v. Rose, 361 F.3d 786, 792-800 (4th Cir. 2004) (applying a four-factor test to conclude that specialty license plates were better characterized as private, rather than governmental speech; thus, the First Amendment did not permit government to exclude messages based on viewpoint) ;
140. see also Wells v. City and County of Denver, 257 F.3d 1132, 1141-44 (10th Cir. 2001) (applying a four-factor test to conclude that a specific holiday display on public property constituted government speech; thus, Plaintiff had no First Amendment right to add to the display).
141. See Norton, supra note 79, at 597-99.
142. Adam Liptak, Is That Plate Speaking For the Driver Or the State?, N. Y. TIMES, April 28, 2009, at A12, available at http://www.nytimes.com/2009/04/28/ us/28bar.html ("[T]he volume of litigation on this question and the doctrinal free-for-all it has given rise to in the lower courts have convinced many legal scholars that the court must soon step in. ").
143. See Scott W. Gaylord, Licensing Facially Religious Government Speech: Summum's Impact on the Free Speech and Establishment Clauses, 8 FIRST AMEND. L. REV. 315 (discussing lower courts' resistance to the Supreme Court's emphasis on establishment and control in Summum and Johanns).
144. See Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1142 (Souter, J., concurring) ("[T]he best approach that occurs to me is to ask whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land.").
145. Choose Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008)
146. cert. denied, 130 S. Ct. 59 (2009).
147. Id. at 863-64.
148. Roach v. Stouffer, 560 F.3d 860, 868 n. 3 (8th Cir. 2009) ("We deal here with a much different issue [than that in Summum]: whether specialty license plates on privately-owned vehicles communicate government speech. Unlike monuments displayed in public parks, specialty license plates that advertise the name or motto of a private organization facilitate expressive conduct on the part of the organization and its supporters, not the government.").
149. Id. at 867.
150. Id.
151. See White, 547 F.3d at 863;
152. Ariz. Life Coalition Inc. v. Stanton, 515 F.3d 956, 964-65 (9th Cir. 2008)
153. cert. denied, 129 S. Ct. 56 (2008) ;
154. Planned Parenthood of S. C. Inc. v. Rose, 361 F.3d 786, 795-96 (4th Cir. 2004) ("The government speech doctrine was not intended to authorize cloaked advocacy that allows the State to promote an idea without being accountable to the political process.").
155. Am. Civil Liberties Union of Tenn. v. Bredesen, 441 F.3d 370, 380 (6th Cir. 2006)
156. cert. denied, 548 U. S. 906 (2006). For a discussion of circumstances under which specialty license plates might accurately be characterized as the government's own speech
157. see Helen Norton, Shining a Light on Democracy's Dark Lagoon, 61 S. CAR. L. REV. 535, 537-42 (2010).
158. Similar disputes involve determinations of whether the government's decision to accept and recognize services from some private entities and not others reflects the government's own expressive act, or whether such discretionary recognition is better understood as viewpoint-based discrimination against private speakers.
159. See, e.g., Michael Cooper, In Missouri, a Free Speech Fight Over a Highway Adoption, N. Y. TIMES, June 21, 2009, at A14, available at http://www.nytimes.com/2009/06/21/us/21highway.html (describing controversy over neo-Nazi groups' efforts to adopt a stretch of state highway with recognition in a state adopt-a-highway sign) ;
160. Posting of Robert Mackey & Ashley Southall to The Lede Blog, http://thelede.blogs.nytimes.com/2009/03/31/kfc-and-peta-vie-to-fix-potholes/ (March 31, 2009, 4:58 EST) (describing Louisville's willingness to accept pothole paving funded by and featuring advertising of Kentucky Fried Chicken but rejecting similar offer by People for the Ethical Treatment of Animals).
161. As discussed more extensively infra, at least one circuit court judge has resisted the application of the Court's current approach to disputes involving government's use of networked technologies.
162. See Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 337-38 (1st Cir. 2009) (Torruella, J., dissenting) ("What is lacking in this 'recently minted' area of the law are any limiting principles. The majority extends the discrimination-as-government-speech doctrine to links on a government website.... [I]n the present case the majority extends the doctrine to a situation where, in my view, it was not clear that the government was engaging in speech at the time it was acting, and only justified its actions after the fact.") (citations omitted).
163. That the Court has now recognized the great instrumental value of requiring the disclosure of a message's author in the campaign finance context further suggests the possibility that it may be open to the possibility of such a requirement in the government speech context as well.
164. See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 916 (2010) ("The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.").
165. For a thoughtful discussion of the value of such speech, see Mary Jean Dolan, The Special Public Purpose Forum and Endorsement Relationships: New Extensions of Government Speech, 31 HASTINGS CONST. L. Q. 71, 132-34 (2004).
166. Pew Internet & American Life Project recently reported that "37% of social network site users expect... updates" from the Obama Administration via social network sites and 34% expect to hear from the Administration via email. AARON SMITH, PEW INTERNET & AMERICAN LIFE PROJECT MEMO, POST-ELECTION VOTER ENGAGEMENT 1 (2008), http://www.pewinternet.org/~/ media//Files/Reports/2008/PIP-Voter-Engagement-2008.pdf.pdf;
167. see also AARON SMITH, THE INTERNET'S ROLE IN CAMPAIGN 2008 (2009), http://www.pewinternet.org/~/media//Files/Reports/2009/The-Internets-Role-in- Campaign-2008.pdf (documenting the public's avid involvement in the 2008 campaign).
168. See, e.g., Tim O'Reilly, Web 2.0: A Compact Definition, http://radar.oreilly.com/2005/10/web-20-compact-definition.html (Oct. 1, 2005) ("Web 2.0 is the network as platform, spanning all connected devices; Web 2.0 applications are those that make the most of the intrinsic advantages of that platform: delivering software as a continually-updated service that gets better the more people use it, consuming and remixing data from multiple sources, including individual users, while providing their own data and services in a form that allows remixing by others, creating network effects through an 'architecture of participation,' and going beyond the page metaphor of Web 1.0 to deliver rich use experiences.").
169. As Timothy Wu observes, Internet "applications can and do vary dramatically. To the user, the Internet comes in many incarnations-email, the World Wide Web, ICQ, and more. A singular model of Internet usage has become too small to capture the dramatic diversity of today's Internet." Wu, supra note 19, at 1163.
170. Steve Towns, Four Questions for Beth Noveck, GOVERNMENT TECHNOLOGY, July 2009, at 12, available at http://digitalmag.govtech.com/GT/GT-Mag-Jul09.pdf.
171. Interview by Scott Simon with Justin Cohen, U. S. State Dep't (Oct. 17, 2009) (transcript available at http://www.npr.org/templates/transcript/ transcript.php?storyId=113876776). Twitter "[u]sers... can create... account[s] to send messages of up to 140 characters to other Twitter subscribers." Helle C. Dale, Public Diplomacy 2.0: Where the U. S. Government Meets "New Media," BACKGROUNDER (The Heritage Found.), Dec. 8, 2009, at 9. "Tweets are usually received as text messages on cell phones, often directing followers to lengthier content viewable on the sender's Twitter Web page."
172. Id.
173. See Dale, supra note 110, at 4 (explaining that State Department sent out text messages of President Obama's speech in Cairo to U. S. and non-U. S. citizens) ;
174. id. at 9 ("The Food and Drug Administration, for instance, issues food recalls via Twitter.").
175. See Department of Homeland Security, About the Department, http://www.dhs.gov/xabout/index.shtm (last visited June 1, 2010).
176. A hyperlink is a "reference to a document that the reader can directly follow" via the World Wide Web. Wikipedia, Hyperlink, http://en. wikipedia.org/wiki/Hyperlink (last visited June 1, 2010).
177. Department of Homeland Security, Preparedness, Response & Recovery, http://www.dhs.gov/files/prepresprecovery.shtm (last visited June 1, 2010).
178. The White House, http://www.whitehouse.gov (last visited June 1, 2010).
179. Dale, supra note 110, at 4.
180. See, e.g., The White House Blog, http://www.whitehouse.gov/blog (last visited June 1, 2010).
181. The White House-sponsored Office of Science and Technology policy has a blog that has comments, thus falling in the moderately interactive/highly transparent category.
182. Wikipedia,.gov, http://en. wikipedia.org/wiki/.gov (last visited June 1, 2010) (explaining that the domain name "[.]gov is a sponsored top-level domain (sTLD) in the Domain Name System of the Internet. The name is derived from government, indicating its restricted use by government entities in the United States"). The General Services Administration (GSA), an independent agency of the United States federal government, administers the.gov domain name. Id.
183. For instance, Governor Schwarzenegger's Twitter account includes his picture and explains that it is a verified account, which links to the Governor's official.gov website. Gov. Schwarzenegger (Schwarzenegger) on Twitter, http://twitter.com/Schwarzenegger?utm-medium=email& utm-source=follow&utm-campaign=twitter20080331162631 (last visited June 1, 2010). This is not to suggest that Twitter accounts can never be spoofed, but instead that the public can have some assurance that the government is indeed speaking.
184. Dale, supra note 110, at 7 (explaining that the top five government Facebook pages frequented by the public are The White House, U. S. Marine Corps, U. S. Army, U. S. Centers for Disease Control, and the State Department).
185. Citron, supra note 11, at 6.
186. As defined by Wikipedia: A blog... is a type of website or part of a website. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order.... The ability of readers to leave comments in an interactive format is an important part of many blogs. Wikipedia, Blog, http://en. wikipedia.org/wiki/Blog (last visited June 1, 2010).
187. U. S. Department of Commerce, Earth System Research Laboratory, Outreach at ESRL, http://www.esrl.noaa.gov/outreach/(last visited June 1, 2010) (explaining that National Oceanic and Atmospheric Administration officials interact with the public on a virtual island in Second Life).
188. Facebook permits government officials, agencies, and corporations to set up fan sites, which permit "fans" to see the content on a government speaker's page but prevents government subscribers from seeing its fans' profiles. In contrast, other social network sites, such as MySpace, allow government users to generate "friends," which permits them to see everything included on a friend's profile. Although this capacity has profound implications for privacy, it does not affect the government speech issues that we address here. See Citron, supra note 11, at 5-7.
189. In using the term "name" here, we refer to the name or identity provided by the person writing the comment. The name may reflect their true identity or may be a pseudonym.
190. Similarly, government agencies using video-sharing sites, such as YouTube, employ channels that make clear that the videos have been posted by the government agency as host. Much like Facebook and MySpace, a government user's video channel is its virtual room with videos posted under its profile. If subscribers comment on the government user's videos or post videos of their own, their name and image appear alongside those expressions. To be sure, the identity of those subscribers typically cannot be verified as many write anonymously or under pseudonyms. But discussion of the potential need for and value of verifying the identity of subscribers is beyond the scope of this Article, which focuses on whether the governmental host's identity is clear and verifiable, and that appears to be the case.
191. We use the term "verify" to mean that the social network user, blogger, or video-sharing site holds itself out as governmental in ways that third party services suggest is true. We, of course, acknowledge that an impersonator could set up a video-sharing site or social network site in the government's name. Our discussion focuses on government's actual use of Web 2.0 platforms and its significance for free speech doctrine and theory. We leave the broader concerns about impersonation for another day.
192. Facebook, Create a Page, http://www.facebook.com/pages/create.php (last visited June 1, 2010). Fan Pages created on behalf of government agencies list their "Type" of Fan Page as "Governmental" or "Politician. "
193. This is not necessarily true of a blog's commentators or a social network site's friends, whose identities have not been authenticated in some manner.
194. Posting of Saul Hansell to Bits Blog, http://bits.blogs.nytimes.com/2009/ 03/05/thenations-new-chief-information-officer-speaks/(Mar. 5, 2009, 2:57 PM).
195. Facebook, The White House, http://www.facebook.com/WhiteHouse (Oct. 7, 2009, 11:19 EST).
196. Facebook, The White House, The White House's Videos, http://www.facebook. com/WhiteHouse#!/WhiteHouse?v=app-2392950137 (last visited June 1, 2010) ;
197. see also Facebook, The White House, The White House's Albums, http://www.facebook.com/WhiteHouse#!/WhiteHouse?v=photos (last visited June 1, 2010).
198. Facebook, The White House, http://www.facebook.com/WhiteHouse (last visited June 1, 2010).
199. The TSA Blog, http://blog.tsa.gov (last visited June 1, 2010).
200. The TSA Blog, Meet Our Bloggers, http://blog.tsa.gov/2008/01/meet- ourbloggers-29.html (Jan. 30, 2008).
201. See, e.g., Posting of Blogger Bob to the TSA Blog, http://blog.tsa.gov/ 2010/02/four-yearold-boy-in-philly-told-to.html (Feb. 22, 2010).
202. See, e.g., The TSA Blog, Meet Our Bloggers, http://blog.tsa.gov/2008/01/ meet-ourbloggers-29.html (Jan. 30, 2008).
203. See, e.g., Posting of John Daly to The TSA Blog, http://blog.tsa.gov/ 2010/02/tsa-haitievacuation-effort-federal.html (Feb. 4, 2010).
204. The TSA Blog moderates comments under the following policy: The purpose of this blog is to facilitate an ongoing dialogue on innovations in security, technology and the checkpoint screening process. We encourage your comments; your ideas and concerns are important to ensure that a broad range of travelers are active and informed participants in the discussion. TSA reserves the right to modify this policy at any time. This is a moderated blog. That means all comments will be reviewed before posting. In addition, we expect that participants will treat each other, as well as our agency and our employees, with respect. We will not post comments that contain vulgar or abusive language; personal attacks of any kind; or offensive terms that target specific ethnic or racial groups. We will not post comments that are spam, are clearly "off topic" or that promote services or products. Comments that make unsupported accusations will also not be posted. The TSA Blog, Comment Policy, http://blog.tsa.gov/2008/01/comment-policy.html (Jan. 30, 2008).
205. The blog does not verify the identity of its commentators as non-governmental actors. Because the commentators typically write anonymously or via pseudonyms, the identities of those commentators are neither clear nor verified.
206. Wikipedia, Wikipedia:About, http://en. wikipedia.org/wiki/Wikipedia:About (last visited June 1, 2010).
207. Id.
208. The emerging Googlewave platform shares some similarities with wiki technology. On the one hand, Gmail users need only pick an email account name and password and Google does not authenticate their identity in any way. On the other, when Googlewave participants collaborate on a document, they own their work. When someone is editing something, the reader sees their edits shaded in a bright color; their names are affixed next to their edits. Readers may thus perhaps more easily identify the speaker on Googlewave than on Wikipedia's history page.
209. PugetSoundMashup, Main Page, http://pugetsound.epageo.org/index.php5? title=Main-Page (last visited June 1, 2010).
210. See id.
211. Id.
212. Joab Jackson, Molly O'Neill: EPA the Web 2.0 Way, GOV'T COMPUTER NEWS, Jan. 29, 2008, http://gcn.com/articles/2008/01/29/molly-oneill-epa-the-web-20- way.aspx?sc-lang=en.
213. Id.
214. Id.
215. BETH SIMONE NOVECK, WIKI GOVERNMENT: HOW TECHNOLOGY CAN MAKE GOVERNMENT BETTER, DEMOCRACY STRONGER, AND CITIZENS MORE POWERFUL 73 (2009).
216. Id. at 74.
217. Id. at 83.
218. Id. at 78.
219. Id. at 73.
220. Id.
221. For a more detailed discussion of how speakers can expressly identify themselves as the source of a message, see Norton, supra note 79, at 604-06.
222. 531 F.3d 275 (4th Cir. 2008).
223. Id. at 278-79.
224. Id. at 277.
225. Id. at 277-78.
226. Id. at 285 ("The School District included every link to other websites on its own initiative, and it did so only insofar as the link would buttress its own message. It thus retained sole control over its message.").
227. In so holding, the Fourth Circuit relied primarily on the school board's "establishment" and "control" of the message. See id. at 281-85. But the court also attended to the government's transparent claim to the expression as its own.
228. See id. at 284 ("[T]he School District continuously and unambiguously communicated a consistent message-its opposition to the Put Parents in Charge Act-and its providing references to others who shared that position was consistent with and supported the message, much as would a bibliography, a citation, or a footnote.").
229. 228 F.3d 1003 (9th Cir. 2000).
230. Id. at 1005-06.
231. See id. at 1013.
232. See id.
233. See Page, 531 F.3d at 284-85;
234. see also Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 334-35 (1st Cir. 2009) ("It is possible there may be cases in which a government entity might open its website to private speech in such a way that its decisions on which links to allow on its website would be more aptly analyzed as government regulation of private speech.").
235. Aden Fine, ACLU, Presentation at the U. S. Dep't of Homeland Security: Government 2.0: Privacy and Best Practices (June 23, 2009).
236. For an example of the latter, see R. Johan Conrod, Linking Public Websites to the Public Forum, 87 VA. L. REV. 1007, 1007 (2001) (describing a Virginia city as "remov[ing] an online newspaper's link to its official city website because it was unhappy with critical coverage it had received in the newspaper" while links to other newspapers and other media were allowed to remain).
237. 584 F.3d 314 (1st Cir. 2009).
238. Id. at 318 (first alteration in original).
239. See id. at 324.
240. Id. at 331. These included hyperlinks to the websites of '"governmental agencies and certain civic organizations,' such as the New Hampshire Municipal Association, the Epping Middle High School, and the Exeter Area Chamber of Commerce" as well as to the website for "Speak Up, Epping!," an event endorsed and supported by the town.
241. Id. at 322.
242. See id. at 322.
243. Id. (alteration in original).
244. Id.
245. Id. at 331.
246. Id.
247. See id. at 340 n. 20 (Torruella, J., dissenting) (noting that counsel for the town at oral argument "struggled to justify the Town's inclusion of a Chamber of Commerce link on the Town's website, but not the plaintiffs' website").
248. See id. at 337.
249. Id.
250. Id. at 338 n. 16 ("In my view, the better course is to adopt the test proposed by Justice Souter in his concurrence to Summum.... Justice Souter's test has the benefit of preventing ex post rationalization of viewpoint discrimination as government speech to avoid First Amendment scrutiny. Rather, the actions of the government would be evaluated from the perspective of a reasonable observer, and, as I note below, it is an open question whether a reasonable observer would construe the Town's actions as government speech, as opposed to the designation of a public forum or simple run-of-the-mill viewpoint discrimination. ").
251. (Putnam I), 221 F.3d 834 (6th Cir. 2000).
252. Id. at 838;
253. see also Putnam Pit, Inc. v. City of Cookeville (Putnam II), 76 F. App'x 607, 610-11 (6th Cir. 2003).
254. Putnam II, 76 F. App'x at 610.
255. Putnam I, 221 F.3d at 841;
256. see also Putnam II, 76 F. App'x at 610-11.
257. Putnam II, 76 F. App'x at 610-11.
258. Putnam I, 221 F.3d at 845.
259. Id. at 846.
260. See Putnam II, 76 F. App'x at 609 (declining to overturn the jury's verdict that the plaintiff did not meet the defendant's eligibility requirements for receiving a hyperlink).
261. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1134 (2009).
262. USA.gov, Showing U. S. Sponsorship, http://www.usa.gov/webcontent/ getting-started/naming/sponsorship.shtml (last visited June 1, 2010) ;
263. see also Department of Energy, Non-Government Domains, http://cio.energy.gov/services/682.htm (last visited June 1, 2010) ("This requirement recognizes the proper performance of agency functions includes an obligation for clear and unambiguous public notification of the agency's involvement in or sponsorship of its information dissemination products including public websites.").
264. USA.gov, Linking Policy, http://www.usa.gov/About/Linking-Policy.shtml (last visited June 1, 2010).
265. If the government is not itself speaking, recall that traditional First Amendment principles then apply. For a discussion of how government might sell its choice of hyperlinks as a form of advertising, thus producing a revenue stream, see Pearson Liddell, Jr. et al., Government-Owned Web Sites and Free Enterprise: First Amendment Implications, 10 No. 4 J. INTERNET L. 1 (2006). Government's sale of advertising space in brick-and-mortar facilities has been variously characterized as a designated public forum, a limited public forum, or a nonpublic forum.
266. See Irene Segal Ayers, What Rudy Hasn't Taken Credit For: First Amendment Limits on Regulation of Advertising on Government Property, 42 ARIZ. L. REV. 607, 608 (2000) (discussing split in authority addressing government efforts to regulate transit advertising) ;
267. Marc Rohr, The Ongoing Mystery of the Limited Public Forum, 33 NOVA L. REV. 299, 338-43 (2009) (discussing mixed results in transit-advertising cases).
268. USA.gov, Establishing a Linking Policy, http://www.usa.gov/webcontent/ managing-content/organizing/links/policy.shtml (last visited June 1, 2010) (emphasis added).
269. The TSA Blog, http://blog.tsa.gov/(last visited June 1, 2010).
270. Some courts and commentators have urged that public forum doctrine additionally be understood to permit government to regulate private speech in various forums that is vulgar, odious, or otherwise particularly obnoxious. See, e.g., Abner S. Greene, (Mis) Attribution, 87 DENV. U. L. REV. 833 (2010) ;
271. Paul D. Wilson & Jennifer K. Alcarez, But it's My Turn to Speak! When Can Unruly Speakers at Public Hearings Be Forced to Leave or Be Quiet?, 41 URB. LAW. 579, 585-87 (2009) (discussing decisions in which courts did or did not permit regulation on such grounds).
272. The TSA Blog, Comment Policy, http://blog.tsa.gov/2008/01/comment-policy. html (last visited June 1, 2010). It also "expect[s] that all participants will treat each other, as well as our agency and employees, with respect" and will "not post comments that contain vulgar or abusive language; personal attacks of any kind; or offensive terms that target specific ethnic or racial groups." Id.
273. Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 PEPP. L. REV. 427, 443-44 (2009) ("In the digital age, judicial protection of First Amendment rights will remain quite important; but if I am correct about the trajectory of future policy debates, our attention will increasingly shift to questions of design-both of institutions and technology-that are largely beyond judicial competence. The key players in ensuring free speech values in the digital age will be legislatures, administrative agencies, and technologists.").
274. Although the rules for assessing government's permissible regulation of private speech vary with the forum designation, in none of them may government discriminate on the basis of viewpoint. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U. S. 788, 800 (1985) ;
275. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U. S. 37, 45-46 (1983).
276. See Business 3.0, Obama's Transparent and Connected Government, http://mybusinessnetwork.blogspot.com/2009/01/transparent-and-connected- government.html (Jan. 6, 2009, 6:16 AM). Indeed, similar parallels have emerged in the field of journalism, where previously faceless and often unreachable columnists and reporters are now readily accessible via e-mail, frequent blogging, etc. See Lili Levi, A New Model for Media Criticism: Lessons from the Schiavo Coverage, 61 U. MIAMI L. REV. 665, 690 (2007) ("[B]logs sponsored by daily newspapers... serve as fora for interactive discussions between journalists, editors, and the public.").
277. See supra notes 145-57 and accompanying text.
278. To be sure, many other transparency-forcing mechanisms remain available that we also support. See, e.g., Consolidated Appropriations Resolution, Pub. L. No. 108-7, tit. VI, § 626, 117 Stat. 11, 470 (2003) (prohibiting expenditure of federal funds to pay third parties to engage in government propaganda efforts without disclosing the messages' governmental source) ;
279. Leslie Gielow Jacobs, Bush, Obama and Beyond-Observations on the Prospect for Fact Checking Executive Department Threat Claims Before the Use of Force (Mar. 2010) (unpublished manuscript, on file with the Denver University Law Review) (discussing possible means for encouraging greater accountability by Article II speakers on national security issues).
280. The National Institute for Health (NIH), for example, is "encouraging its scientists and science writers to edit and even initiate Wikipedia articles in their fields" in response to the reality that many individuals turn to the web for health-related information. Ibby Caputo, NIH Staffers Get Into the Wiki World, WASH. POST, July 28, 2009, available at http://www.washingtonpost.com/wpdyn/content/article/2009/07/27/AR2009072701912. html.
281. Jason C. Miller & Hannah B. Murray, Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate, 84 ST. JOHN'S L. REV. (forthcoming 2010).
282. Yochai Benkler, Freedom in the Commons: Towards a Political Economy of Information, 52 DUKE L. J. 1245, 1256 (2003).
283. See YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 232 (2006).
284. See CLAY SHIRKY, HERE COMES EVERYBODY: THE POWER OF ORGANIZING WITHOUT ORGANIZATIONS 141 (2008).
285. Id. at 139. To be sure, diverse groups may sometimes produce better information and decisions than even experts. Nonetheless, Wikipedia shows that anonymous crowds can also be destructive. Consider journalist John Seigenthaler, Sr.'s struggles. In 2005, Seigenthaler discovered that one or more persons had created a Wikipedia biography for him that included false accusations of his involvement in the Kennedy assassination.
286. Id. at 138. The entry was edited to strike out the false material, but by that time the false material had circulated for over half a year and thus "much of the damage had been done." Id. Wikipedia now invokes editorial control to combat vandalism, often locking pages and editing. Id.
287. Although in this Article we focus on the dangers of anonymous government speech, private parties' use of emerging technologies to engage in anonymous cyber harassment and similar behavior may inflict substantial harms of a very different type. See Danielle Keats Citron, Cyber Civil Rights, 89 B. U. L. REV. 61, 61 (2009) (describing use of internet technologies to threaten, defame, and harass women and other members of subordinated groups).
288. See Norton, supra note 79, at 592 (recounting evidence from cognitive psychology and related fields indicating that onlookers often use a message's source as a heuristic for evaluating its quality) ;
289. see also Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 946 n. 47 (2010) (Stevens, J., concurring in part and dissenting in part)
290. (quoting ARISTOTLE, POETICS 43-44 (M. Heath trans., Penguin Books 1996) ("In evaluating any utterance or action, one must take into account not just the moral qualities of what is actually done or said, but also the identity of the agent or speaker, the addressee, the occasion, the means, and the motive.").
291. Brad Stone & Matt Richtel, The Hand that Controls the Sock Puppet Could Get Slapped, N. Y. TIMES, July 16, 2007, available at http://www.nytimes. com/2007/07/16/technology/16blog.html?-r=1&oref=slogin.
292. Id. Mr. Mackey used the online handle "Rahodeb" (an anagram of his wife's name, Deborah). Id.
293. See Lee, supra note 88, at 990.
294. See Johanns v. Livestock Mktg. Ass'n, 544 U. S. 550, 577-78 (Souter, J., dissenting) ("[R]eaders would most naturally think that ads urging people to have beef for dinner were placed and paid for by the beef producers who stand to profit when beef is on the table. No one hearing a commercial for Pepsi or Levi's thinks Uncle Sam is the man talking behind the curtain. Why would a person reading a beef ad think Uncle Sam was trying to make him eat more steak?"). Although unwilling to require government affirmatively to identify itself as the author of the message as a condition of claiming the government speech defense, the Supreme Court noted in Johanns the possibility of a different outcome if there were evidence that viewers actually misunderstood the message to be attributed to private parties-although it seemed quite unwilling to find such evidence: Whether the individual respondents who are beef producers would be associated with speech labeled as coming from 'America's Beef Producers' is a question on which the trial record is altogether silent. We have only the funding tagline itself, a trademarked term that, standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad.
295. Id. at 566 (majority opinion) ;
296. see also Greene, supra note 198, at 834-836.
297. For thoughtful discussion of the possibility that government may sometimes act as "ventriloquist," deliberately masking its role as a message's source in order to enhance the message's credibility, see Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 49-52 (2000).
298. See supra notes 145-148 and accompanying text (describing EPA's Puget Sound project).
299. Representing EPA Online Using Social Media, Web Guide, Jan. 26, 2010, http://yosemite.epa.gov/OEI/webguide.nsf/socialmedia/representing-epa-online.
300. Id.
301. Id.
302. Id.
303. Id.
304. Id.
305. For a discussion of the primary values to be served by the First Amendment, see Thomas I. Emerson, First Amendment Doctrine and the Burger Court, 68 Cal. L. Rev. 422, 423 (1980) ("Over the years, we have come to view freedom of expression as essential to: (1) individual selffulfillment; (2) the advance of knowledge and the discovery of truth; (3) participation in decisionmaking by all members of society; and (4) maintenance of the proper balance between stability and change.").
306. For a different view, see Bezanson, supra note 48 (characterizing government speech as constitutionally valuable only when it is cognitive and reasoned, rather than aesthetic or emotional).
307. See Lee, supra note 88, at 983-88 (describing exposure of several instances of government's covert efforts to disseminate its policy agenda through nontransparent means) ;
308. William E. Lee, Deep Background: Journalists, Sources, and the Perils of Leaking, 57 AM. U. L. REV. 1453, 1461 (2008) (describing "the importance of leaks in the democratic dialogue") ;
309. Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 IND. L. J. 233, 233 (2008) (describing the government's communication of information to the public through leaks) ;
310. Letter from Anthony H. Gamboa, General Counsel, U. S. Government Accountability Office, to Senators Frank R. Lautenberg & Edward M. Kennedy (Sept. 30, 2005) (on file with Denver University Law Review) (describing Bush Administration Department of Education's violation of the covert propaganda ban by contracting with columnist Armstrong Williams "to comment regularly on the No Child Left Behind Act without assuring that the Department's role was disclosed to the targeted audiences.").
311. Deborah Hellman, The Expressive Dimension of Equal Protection, 85 MINN. L. REV. 1, 3 & n. 10 (2000) ; (Pubitemid 33629890)
312. see generally Danielle Keats Citron, Law's Expressive Value in Combating Cyber Gender Harassment, 108 MICH. L. REV. 373, 407-414 (2009) (exploring law's expressive value in addressing cyber gender harassment).
313. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1571 (2000).
314. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2022 (1996). (Pubitemid 126408773)
315. Citron, supra note 228, at 407.
316. For a thoughtful discussion of how the controversy over government speech reflects a controversy over the appropriate role of government more generally, see Steven D. Smith, Why is Government Speech Problematic? The Unnecessary Problem, the Unnoticed Problem, and the Big Problem, 87 DENV. U. L. REV. 945 (2010). For an equally thoughtful response
317. 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 (2010), http://denverlawreview.org/storage/Chen-Right Labels.pdf.
318. David Robinson, Harlan Yu, William P. Zeller, & Edward W. Felten, Government Data and the Invisible Hand, 11 YALE J. L. & TECH. 160, 160 (2009) ("If President Barack Obama's new administration really wants to embrace the potential of Internet-enabled government transparency, it should follow a counter-intuitive but ultimately compelling strategy: reduce the federal role in presenting important government information to citizens. Today, government bodies consider their own Web sites to be a higher priority than technical infrastructures that open up their data for others to use. We argue that this understanding is a mistake. It would be preferable for government to understand providing reusable data, rather than providing Web sites, as the core of its online publishing responsibility.").
319. Jerry Brito, Hack, Mash, & Peer: Crowdsourcing Government Transparency, 9 COLUM. SCI. & TECH. L. REV. 119 (2008) ("In order to hold government accountable for its actions, citizens must know what those actions are. To that end, they must insist that government act openly and transparently to the greatest extent possible. In the twenty-first century, this entails making its data available online and easy to access.").
320. See generally Danielle Keats Citron, Open Code Governance, 2008 U. CHI. LEGAL F. 355 (2008) ;
321. Danielle Keats Citron, Technological Due Process, 85 WASH. U. L. R. 1249, 1250 (2008) (urging that such government systems ought to be transparent to the public to promote accuracy, security, and privacy, among other values).
322. See Lisa P. Ramsey, Brandjacking on Social Networks: Trademark Infringement by Impersonation of Markholders, 58 BUFF. L. REV. (forthcoming 2010) (describing fake posts and other techniques by imposters seeking to create confusion about the source of information about particular corporate brands).
323. Note, for example, that some individuals with no governmental affiliation may create official-looking platforms, such as social network profiles, that purport to convey governmental messages-perhaps to besmirch governmental actors whose election (or re-election) efforts they want to undermine.
324. Paul M. Schwartz, From Victorian Secrets to Cyberspace Shaming, 76 U. CHI. L. REV. 1407, 1446 (2009).