December 19, 2003

Governmental Speech

In a fairly interesting review of a case, Eugene Volokh includes this final line:

The Free Speech Clause does not, I think, prevents the government from using a variety of techniques -- speaking through its employees, speaking through people whom it invites because of their views, or speaking through people whom it tells what to say and what not to say -- to express its views (subject to the Establishment Clause constraint that the government can't take stands on religious questions). [SIC]

I disagree with this. I think that the First Amendment was specifically put in place to do two things: (1) Prevent the government from censoring viewpoints it disagrees with; and (2) Prevent the government blatantly supporting given viewpoints (if only because by supporting one viewpoint alternate viewpoints are specifically suppressed.
It is clear to me that under current law in the U.S., government is permitted to subsidize speech however it wishes. Government often is a speaker and it is permitted to say whatever it likes. And if government desires to use taxpayers funds to direct attention to certain topics, there is no basis for constitutional complaint. The exception to this is if government is allocating funds to private speakers in a way that discriminates on the basis of viewpoint (discrimination by either inclusion or exclusion).
Clearly, to me, in the case discussed by Prof. Volokh, there is viewpoint discrimination and that is wrong. It may be considered okay to talk about diversity and homosexuality (this is drawing attention to an issue and well within the free speech right of the government), but it should not be considered acceptable, under the 1st Amendment, to specifically include and exclude certain viewpoints of speech.

This, of course, should be annotated to say that I don't believe that groups such as neo-nazis should have a place at a talk on diversity. But this argument is more on practical grounds - we cannot include all viewpoints, so fringe elements (elements that are ridiculous to the vast majority of society) have to be discluded from the public forums. Now, one might argue that those in favor of homosexuality (and who claim that it is acceptable according the Bible) use to be a fringe element and maybe it did and maybe it didn't. But I would argue that before it could gain a seat a a public, government funded forum it had to claw its way out of obscurity. Such is the burden of the minority in a democratic system.

Posted by DFMoore at December 19, 2003 08:46 AM


I think the better distinction is that the government can have an opinion and express it. It cannot, however, get someone up on the stage and espouse an opinion as if it were there own, if that person is not expressly speaking as an agent of the government.

For this reason, I think Prof. Volokh was half right. They could censor the girl's expression if it was her job to get up infront of the class to express the school's opinion, but they can't make her say that the opinion is her own if it isn't.
See my discussion:
"Expression" that waskily Wibutty

Posted by: Bronson at December 19, 2003 03:02 PM

The judge got it right. By the Prof's theory, the principal could just as well have clergy come and preach the opposite view only.
Law is a blunt instrument. Some common sense should prevail. Many schools teach virtues such as honesty, tolerance, etc., because most people agree having honesty is a public good. But when addressing such a divisive issue, esp. under the rubric of 'diversity', some balance is required. Sad that the homosexual students voted to silence debate, but that's increasingly typical.

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