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A Response to Professor Bezanson

Robert F. Nagel†


            Professor Bezanson proposes that courts enforce constitutional limitations on how government speaks when utilizing a forum in which the government has a monopoly on expression. As I understand him, the limitations would be, first, that the government must speak fairly in accordance with a duty fully to inform and, second, that the government must not appeal to passion or emotion (as opposed to cognition). A cynic might suggest that, if this rather high standard were widely enforced, a blessed silence would descend upon the land.

            The bases for Professor Bezanson’s rather bold proposal are that slanted or emotional appeals, while having certain uses, are not sufficiently related to the goal of self-government and that they are highly dangerous when the government is the only speaker. Presumably the proposal would give individual Americans an enforceable right and that courts could provide either equitable or monetary remedies for government speech that violates the standards.

            I agree that the sort of speech that Professor Bezanson is concerned about is dangerous; in fact, I would add that it is dangerous in non-monopolistic situations as well. I also agree that this sort of speech can be useful, as the Court has said many times—for example, in cases involving profanity,[1] flag desecration,[2] and vicious parodies.[3] I have, however, two points of disagreement, which I will struggle not to state in excessively emphatic terms.

I.          Desirable Emotional and Single-Sided Speech

            First, slanted and emotional appeals can be highly relevant to governing. For an illustration of useful one-sided speech, think of President Franklin Roosevelt’s call for a Declaration of War against Japan after the attack on Pearl Harbor. As everyone knows, he began by referring to December 7, 1941 as “a date which will live in infamy.”[4] He went on to proclaim, “I believe that I interpret the will of Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make it very certain that this form of treachery shall never again endanger us.”[5] And he ended with this: “With confidence in our armed forces—with the unbounding determination of our people—we will gain the inevitable triumph—so help us God.”[6] Nothing balanced there, and properly so.

            With regard to emotive speech, consider President Abraham Lincoln’s wonderfully passionate ending to his First Inaugural:

            We must not be enemies. Though passion may have strained it must

            not break our bonds of affection. The mystic chords of memory, stretching

            from every battlefield and patriot grave to every living heart and

hearthstone all over this broad land will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.[7]

This is not primarily cognitive, to say the least, but it was certainly appropriate and effective.

            The idea of attempting to drain important segments of public discourse of partiality, passion, and emotion seems to me to be something that only a law professor could imagine. And I do not mean to refer here only to high politics. It is established that the government can restrict speech about abortion in government-funded family planning clinics because it is permissible for the government to decide that public money should not be used to encourage or facilitate abortions.[8] If the government were to go further and, for example, require that patients who asked about abortion be shown photographs of actual abortions, this one-sided appeal to emotion would amount, I think, to a powerful and important moral argument.

II.        Judicial Regulation

            This leads directly to my second point of disagreement. It can be said, as I have already conceded, that permitting the government to use emotional appeals is dangerous. The use of a photograph of an abortion as a moral argument is certainly dangerous. But it is also dangerous to allow judges to regulate how the government may speak. Professor Bezanson is optimistic on this point because of the Court’s record in areas like campaign finance and obscenity. However this may be, the difference between an acceptable moral claim and an unacceptable appeal to passion can too easily reflect only substantive disagreement or disapproval. Thus, for example, Professor Bezanson asserts that the simple display of the Ten Commandments is a “declaration” and therefore too irrational a communication to be constitutionally justified. I can understand some reasons for the government to avoid such displays, but the idea that this list of moral precepts is irrational is not one of them. Professor Bezanson is using the word “declaration” as a pejorative for what is in fact simply a set of assertions. There is nothing inherently irrational about assertions. It is, however, entirely to be expected that people will tend to categorize assertions as irrational declarations if they disapprove of them.

            Traditionally, a basic responsibility of political participation is for each of us to evaluate the tenor of government speech and to distinguish demagoguery from inspiration, propaganda from fierce argumentation. To turn this responsibility over to the judiciary would be to abdicate one of the most fundamental aspects of citizenship, not to say, of adulthood.


† Rothgerber Professor of Constitutional Law, University of Colorado Law School. This piece was prepared in response to Professor Bezanson’s presentation at the Ira Rothgerber conference on Government Speech, held January 22, 2010 in Denver, Colorado.

[1] Cohen v. California, 403 U.S. 15 (1971).

[2] Texas v. Johnson, 491 U.S. 397 (1989).

[3] Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

[4] The Public Papers and Addresses of Franklin D. Roosevelt, no. 125 (1941) at 514–16.

[5] Id.

[6] Id.

[7] Inaugural Addresses of the Presidents of the United States from George Washington, 1789 to Richard Milhous Nixon, 1969 at 126.

[8] Rust v. Sullivan 500 U.S. 173 (1991).



Right Labels, Wrong Categories: Some Comments on Steven D. Smith’s, Why is Government Speech Problematic?

 Alan K. Chen†

       Professor Steven Smith’s thoughtful paper addresses the theoretical underpinnings of the government speech doctrine and examines why the doctrine, such as it is, seems to present such confounding First Amendment problems (as I think we all would agree it does). He modestly claims not to offer any solutions, but his insights surely will contribute to our understanding of this challenging doctrinal and theoretical area.

       He frames his analysis along three lines. First, he suggests that much of the difficulty in understanding government speech under the First Amendment stems from a broad constitutional commitment to government neutrality. He argues that this misguided focus on neutrality creates what he describes as the “unnecessary” (or non-existent) problem. Second, Professor Smith suggests the existence of a second, but “unnoticed,” problem of institutional capture – the concept that in some instances an institution’s speech may result in the wrongful attribution of its views to its members. After illustrating how this works with private associations, he examines government speech through this lens. He concludes that when the government expresses “inappropriately narrow affirmations” (sectarian or partisan messages), the unease created by the government’s speech may in part result from concerns that the message does not reflect the views of the people, but of an unrepresentative faction that controls the government. This then leads to what Professor Smith labels the “big” problem, which is the lack of a working consensus about the proper role of government. He suggests that many of the problems that modern scholars attribute to the government speech doctrine are really disputes about the scope of the government’s legitimate authority. As he puts it, “[w]hat a government can properly say depends on the defined proper and essential role or function of the government.”

       I like these labels very much and wholeheartedly agree that they are quite useful in advancing our understanding of the constitutional limits on governmental speech. Unfortunately, I believe that Professor Smith has attached each label to the wrong issue. Rather, I contend that neutrality has been, and remains, the big problem; institutional capture is the non-problem; and the function of government is the unnoticed problem.

I.  The Unnecessary Problem (actually, the Big Problem)

       The unnecessary or non-existent problem is the struggle to harmonize the many faces of government speech with what Professor Smith suggests is an exaggerated constitutional commitment to government neutrality. He is, of course, correct that in classic instances of unambiguously “governmental” speech, the concept of neutrality is not only inapplicable, but also unattainable (and probably undesirable as well). What is the difference, from a First Amendment perspective, between the following two scenarios?

A. The United States government pronounces that it is the moral responsibility of all Americans to make private donations for Haitian earthquake relief.                                  

B. The United States enacts a law increasing federal income taxes by a small percentage to generate revenue that is targeted for U.S. earthquake relief to Haiti.                                          

       Both laws represent official expressions of U.S. policy, a policy that may not be universally agreed upon by all citizens. Some Americans might be isolationists. Others might prefer that the money (theirs or the government’s) be spent to support the U.S. military forces in Afghanistan to hasten the resolution of that conflict. And so forth.

       Does the government’s speech that urges citizens to donate money to Haiti violate the First Amendment because it conflicts with the concept of neutrality? As Professor Smith points out, the answer must be no. If it did, then it is not clear why the government’s enactment of the tax law does not also violate the neutrality principle. Taken to its logical extreme, neutrality would forbid the government ever to adopt a policy, which is the function of government in the first instance.

        Of course, even if the government need not remain neutral in its own speech, contemporary First Amendment doctrine demands application of the neutrality principle to the government regulation of private speech.[1] If the First Amendment’s purpose is to protect a wide range of ideas available to the public and a robust exchange over those ideas, then at least the government must not censor or burden ideas or discussions with which it disagrees. State regulation of speech based on its content alters the overall composition of the public universe of such ideas. But, as Professor Smith observes, many of the most challenging government speech issues involve attempts to distinguish between what constitutes the government’s speech (where neutrality is not required) and what constitutes an impermissible, discriminatory regulation of private speech (particularly in the case of government funding of speech by non state actors). He argues that these problems might disappear if our understanding of First Amendment law abandoned its rigid adherence to the neutrality principle.[2]

       Professor Smith argues that one reason that the government speech/government regulation line is hard to draw is that the line “makes little sense in terms of the obligation of neutrality that inspires the ‘no viewpoint discrimination’ doctrine in the first place.” “If government is supposed to be neutral,” he writes, “then government violates that obligation as surely by speaking in favor of one view in a controversy as by regulating the expression of views by others.” Professor Smith goes on to argue, however, that the government skews the marketplace of ideas by sheer force of its position of authority. As he says, “government is likely to be the biggest, loudest, best-funded speaker on the block. . . . No other speaker comes close to enjoying [its] discursive advantages.”

       Here is where I part ways with him. While he is correct that as a matter of kind the government is not maintaining neutrality in either situation, surely there is an important difference in the degree that government speech affects the public discourse compared to the impact of government restrictions on private speech. I suggest that First Amendment doctrine appropriately distinguishes between these two scenarios because the government’s own speech can rarely influence the public debate in the same qualitative or quantitative way as when it excludes private speakers’ ideas from the marketplace.

       Does the government’s speech affect the marketplace of ideas? Of course. But in a manner that adds to the discourse, not in a way that subtracts other voices from that debate.[3] The correctness of the proposition that the government does not violate the neutrality principle by expressing its own positions on issues of public importance is not tantamount to the conclusion that government speech or regulation can under no circumstances violate that principle.

       Perhaps the best that we can aspire to under this regime is strict adherence to the principles that government speech will not actively suppress opposing views through its coercive power and that consumers of speech should be apprised of the source of the message whenever the government speaks, so that they can sort out for themselves the value, weight, and credibility of given expressions. In this sense, I think that scholars such as Helen Norton,[4] Danielle Citron, Gia Lee,[5] and to some degree Abner Greene, have it right that a foundational factor in a coherent government speech doctrine is the appropriate identification of the speaker. So long as we know that it is, in fact, the government’s voice that is dominating the discourse, disclosure of the source of that voice, however loud, provides a vehicle for transparency and, ultimately, accountability. So long as the only manner in which the government affects the marketplace of ideas is through the sheer volume and breadth of its messages, and not from directly interfering with or suppressing the messages of speakers who do not agree with the official government orthodoxy, attribution of the speech to the government will at least ameliorate some concerns about the skewing of public discourse.

       To be sure, the government will have a greater chance of persuading people to agree with its position than a grass roots political organization with few resources. But so will Microsoft. Or, after the past Supreme Court term, groups such as Citizens United.[6] Unless we start requiring something akin to the fairness doctrine[7] whenever the government engages in speech, which would be both impracticable and unpalatable, transparency is about the best we can hope for in an imperfect doctrinal world.

       But perhaps we can be even a little more optimistic than that. The government’s own speech presents a greater threat to neutrality if it controls all forums for a particular type of speech. Consider, for example, a variation on the case of Southeastern Promotions, Ltd. v. Conrad,[8] in which the government not only forbade a theater company from performing a play, but also owned all theaters in its jurisdiction. It may be that the problem of government speech crowding out private speech and unduly influencing public debate is best addressed not by law, but by technological change. With the proliferation of new technologies, private, inexpensive communication over the Internet can be both massive and instantaneous, and impossible to bottle up once disseminated. The major focus of free speech law may shift from First Amendment doctrine to constraints on governmental control of private communication in cyberspace.

II.  The Unnoticed Problem (actually, the Non-Problem)

       Professor Smith’s unnoticed problem is the notion, not limited to government speakers, that small, but controlling, factions can sometimes capture the voice of associations and pronounce a position that is neither germane to the association’s mission nor representative of the views of the bulk of its membership. Although this aspect of his paper focuses on private organizations, he suggests that there are broader speech implications to the institutional capture problem that are obscured by the typical focus on state action, and that the larger body of speech is affected in important ways by such capture.          

       While Professor Smith presents a good case for why institutional capture might be quite objectionable to those who are wrongly associated with the expressed views of their organizations, this is not really a government speech problem. To the degree that institutional capture is problematic, it goes unnoticed in the private association context because of the possibility of exit. The easiest way for a disgruntled member to disassociate herself with the association’s speech is to quit. Even though this might be a significant burden on or inconvenience to that member, who may continue to desire the other benefits of association, it is not a First Amendment problem, even if it is a speech problem. And it is certainly not a government speech problem. To the extent that institutional capture might be a problem when the government speaks, as I suggest below, it is also not a First Amendment problem because institutional capture, as Professor Smith characterizes it, is simply inherent to democracy.

III.  The Big Problem (actually, the Unnoticed Problem)

            Extrapolating this institutional capture scenario to the state, Professor Smith explains that the government, too, may engage in expression that is neither germane to its mission nor representative of the people’s views (although, of course, there are important differences, as members of volunteer associations have a relatively easier exit strategy than citizens of a polity). Governments routinely and necessarily speak out on behalf of the “public,” but can never represent the views of all members of that public. Said differently, democracy in a pluralistic society is institutional capture. I may agree with the government’s position on health care, but not the war on terror, or vice-versa. But that does not mean that the government has been captured. 

            The problem of institutional capture of government speech leads to what Professor Smith calls the big problem, which he describes as “the collapse of any working consensus about the proper domain and functions of government.” In his view, the government’s expression of an opinion that many might feel inappropriate or unrepresentative is problematic not because it violates the commitment to neutrality, but because it may exceed the boundaries of proper governmental functions. Our energy, he suggests, would be better directed at addressing these deeper disagreements about the nature and functions of government, than by focusing on questions about speech per se.

            My concern with the big problem is that it is not just big, but it is impossible. I am skeptical that, as Professor Smith surmises, a working consensus about the government’s proper functions ever existed. But if it once did, we now are unlikely to return to that point. If that is correct, then the identification of the big problem leads us to a debate that is even more unresolvable than the government speech problem, which at least can be addressed at the margins. The big problem offers an important insight, but not one that can be readily addressed by thinking about legal theory or doctrine. As imperfect and muddled as First Amendment doctrine has become, and as difficult as it may be to distinguish among government speech, government subsidization of private speech, and government regulation of private speech, the law is much better equipped to address those distinctions than the global conception of the meaning of government. Indeed, constitutional doctrine is no stranger to rules that turn on the judicial determination of the type of role the government is performing.[9]

* * *

            While I disagree with some of Professor’s Smith’s perspectives, particularly his view of neutrality as an unnecessary problem, I am intrigued at the prospect of reaching a clearer understanding of government speech. His express goal was to enhance our understanding of the conceptual underpinnings of government speech doctrine. On that metric, his paper certainly succeeds.

† Associate Dean for Faculty Scholarship and Professor of Law, University of Denver Sturm College of Law.  Thanks to Professor Richard Collins for inviting me to participate in the 2010 Ira C. Rothgerber, Jr. Conference and to Steven Smith for presenting such an engaging paper on which to comment. 

[1] I have defended the neutrality principle in other First Amendment contexts. See Alan K. Chen, Forced Patriot Acts, 81 Denv. U. L. Rev. 703, 707-08 (2004).

[2] It is not altogether clear from his paper whether Professor Smith would abandon the neutrality principle across all First Amendment doctrine, or only in the context of questions of government speech. 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, 952 (2010) (“Suppose we were to conclude (as we might or might not) that once the obligation of neutrality is lifted, the free speech doctrine prohibiting viewpoint discrimination should likewise be abandoned.”) (emphasis added).

[3] Professor Smith responds to my critique by observing that much viewpoint regulation affects only the time, place, or manner of expression and does not completely foreclose ideas from being aired at all. Id. at 950 n.22. I concede that in such cases the gap between the impact of government speech and government regulation of private speech is partially closed. However, I maintain that a qualitative distinction exists between government speech and government regulation. Also, it is important not to underestimate the significance of the distortion caused by government regulations of the manner of expression. See Heidi Kitrosser, From Marshall McLuhan to Anthropomorphic Cows: Communicative Manner and the First Amendment, 92 Nw. U. L. Rev. 1339 (2002); Alan K. Chen, Statutory Speech Bubbles, First Amendment Overbreadth, and Improper Legislative Purpose, 38 Harv. C.R.-C.L. L. Rev. 31, 60 n.171 (2003).

[4] Helen Norton, The Measure of Government Speech: Identifying Expression’s Source, 88 B.U. L. Rev. 587 (2009); Helen Norton & Danielle Keats Citron, Government Speech 2.0, 87 D.U. L. Rev. 899 (2010).

[5] Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 Hastings L.J. 983 (2005).

[6] Citizens United v. Fed’l Election Comm’n, 130 S. Ct. 876 (2010).

[7] The fairness doctrine was a policy adopted by the Federal Communications Commission that required federally-licensed radio and television broadcasters to present programming regarding public issues and ensure that each side of those issues receive fair coverage.  See Red Lion Broad. Co. v. Fed. Commc'n. Comm'n., 395 U.S. 367, 369 (1969).

[8] 420 U.S. 545, 561-62 (1975) (invalidating municipality’s denial of permit to use city-owned auditorium for performance of controversial theater performance on First Amendment prior restraint grounds).

[9] For example, under the dormant Commerce Clause doctrine, the Court has held that state and local governments violate the Constitution when they engage in overt regulatory discrimination against out of state businesses, but has permitted them to discriminate when they are acting as private market participants. See Reeves, Inc. v. Stake, 447 U.S. 429, 440 (1980). Likewise, the Court’s federalism precedents require invalidation of federal efforts to commandeer state government processes but permit federal regulations of general applicability that apply to states acting in a proprietary capacity. Reno v. Condon, 528 U.S. 141, 151 (2000).