Constitutional law tends to focus on the rules that apply to what the government does鈥攍ike the rules that apply to the laws that the government enacts to the government鈥檚 taxes and the government鈥檚 decisions to arrest and imprison. What鈥檚 less clear are the constitutional rules that apply to what the government says. In her new book, (Cambridge University Press), constitutional law scholar and Professor Helen Norton investigates the variety and abundance of government speech, from early proclamations and pamphlets to the electronic media of radio and television and to today鈥檚 digital age.
"At its core, constitutional law addresses the uses and abuses of government power. This includes the uses and abuses of the government鈥檚 expressive powers," Norton said. "When we see or hear the terms 'government' and 'speech' in close proximity, we often think of the constitutional issues triggered when the government regulates our expression. In this book I focus on the constitutional issues raised when the government itself is doing the talking."
"When we see or hear the terms 'government' and 'speech' in close proximity, we often think of the constitutional issues triggered when the government regulates our expression. In this book I focus on the constitutional issues raised when the government itself is doing the talking."
Professor Helen Norton
Norton, who holds the Rothgerber Chair in Constitutional Law at Colorado Law, focuses her teaching and scholarship on constitutional and civil rights law. Before entering academia, she served as deputy assistant attorney general for civil rights at the U.S. Department of Justice during the Clinton administration. Her constitutional law scholarship has appeared in the Duke Law Journal, Northwestern University Law Review, Stanford Law Review Online, and the Supreme Court Review, among other journals.
When I talk about the government鈥檚 speech, I鈥檓 referring to the speech of a governmental body like an agency or congressional committee (think of the surgeon general鈥檚 report on the dangers of tobacco) as well as the speech of an individual who speaks when backed by the government鈥檚 power (like the attorney general announcing official policy or a police officer interrogating a suspect).
The government is unique among speakers because of its coercive power, its enormous resources, its often privileged access to key information, and its wide variety of expressive roles. The government speaks not only as sovereign, but also as employer, as educator, as property owner, as commander-in-chief, and in many other roles. For all these reasons, the government鈥檚 speech has unusual potential for great value as well as great harm.
The government鈥檚 speech can serve, or instead threaten, democracy. We need to empower our government to operate effectively to serve and protect us, even while we need to limit its power to harm us. Think of governmental threats that silence dissenters as effectively as jailing them, or governmental lies that pressure their targets into abandoning their constitutional rights as effectively as denying those rights outright. These concerns are as important now as they鈥檝e ever been.
The government鈥檚 lies, like our own, can be complicated. Sometimes the government tells lies in hopes of achieving important public objectives: think of undercover police officers鈥� falsehoods about their identities, which are told to discover and stop wrongdoing. But of course, the government鈥檚 lies sometimes inflict devastating injuries鈥攆or example, when the government lies to the public to avoid legal or political accountability or to justify certain military actions. This requires us to wrestle with hard questions about when we can effectively challenge those lies through constitutional litigation and when we must instead rely solely on political action like protesting and voting.
I鈥檝e worked for the government myself when I helped lead the Department of Justice鈥檚 Civil Rights Division during the Clinton administration, so I have some experience with the challenges and benefits that come with speaking for the government. After I entered academia, my early work in this area focused on the value and importance of the government鈥檚 speech so long as its governmental source is made clear to the public. As the years passed, I also became interested in the dark side of the government鈥檚 speech鈥攊n other words, the government鈥檚 destructive expressive choices. This led me to wonder whether and when the Constitution limits the government鈥檚 speech. This book represents my efforts to describe and analyze the tensions between these two sides of the government speech coin.
Thinking about the constitutional rules that apply, or should apply, to the government鈥檚 speech invites lots of important and challenging questions both about the nature of speech and the nature of government. It requires us to expose our views about how government does and should work, and our views about how speech does and should work. What value does the government鈥檚 speech offer, what dangers does the government鈥檚 speech threaten鈥攁nd does the Constitution protect us from those dangers? These are questions that I鈥檒l continue to explore.
This story originally appeared in the fall 2019 issue of Amicus. Constitutional law tends to focus on the rules that apply to what the government does鈥攍ike the rules that apply to the laws that the government enacts to the government鈥檚 taxes and the government鈥檚 decisions to arrest and imprison. What鈥檚 less clear are the constitutional rules that apply to what the government says. In her new book, The Government鈥檚 Speech and the Constitution, constitutional law scholar and Professor Helen Norton investigates the variety and abundance of government speech.