When Government is the Loudest Voice in the Room

Garrett Epps of the Atlantic asks whether there should be limits to government speech, pointing to last week’s Supreme Court Texas license-plate case, Walker v. Texas Division, Sons of Confederate Veterans.

“Many people see Walker as a case about the Confederate Battle Flag; but Walker has little to do with the flag, and much to do with a recent invention of the Court, the doctrine of ‘government speech.’”

“It’s worth understanding that idea for two reasons. First, whatever the Court decides, we are going to hear more, perhaps a great deal more, about government speech again soon. And, second, the Court’s venture into this area seems to follow a long-established pattern of First Amendment growth. At first, the Court announces that a certain kind of speech—defamation, say, or obscenity—is outside the First Amendment; next, government bodies begin restricting that kind of speech; finally, the Court narrows the exception to Free Speech to manageable size.”

“Government is usually the loudest voice in the room; we need rules on how much attention it has to pay to citizens when it decides to shout. A workable rule will balance citizens’ speech rights against government necessity. A number of the justices don’t care much for balancing. But there’s really no escaping it in an area this delicate. The Texas case seems like a good chance for this Court to start settling this beef.”

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