Journal of Free Speech Law: "Government Counterspeech," by Prof. Jamal Greene

The third of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

The article is here; the Introduction:

We are awash in lies. Misinformation has always been with us, but the endemicity of social media and the depth of political polarization in the United States and elsewhere has enabled falsehoods to be amplified, monetized, microtargeted, and spread around the world at unprecedented speed and scale. The consequences for democracy, public health, and social harmony are emergent and grave.

Misinformation presents one of the most vexing challenges for content moderation on social media (and off it, such as on cable news) for myriad reasons. Because misinformation can be difficult or controversial to define, policing it risks chilling core political speech, and because misinformation often resists automated enforcement, it cannot be removed or countered nearly as quickly or as cleanly as it spreads. Government regulation of misinformation raises special concerns, both because public officials may be particularly susceptible to political bias and because even outright lies enjoy a measure of constitutional protection.

The orthodox U.S. constitutional response to harmful speech, including false speech, is counterspeech. As Justice Brandeis wrote in his canonical concurring opinion in Whitney v. California, "[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." The view that corrective speech is preferable to censorship resonates with Justice Holmes' famous intimation that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." The digital age has revealed Holmes' aphorism to be as absurd as ever, but he was prescient in saying "[t]hat at any rate is the theory of our Constitution." So it has become.

And yet, there are reasons to think U.S. constitutional law might not leave as much room for counterspeech as the misinformation problem demands. Prior to 2011, Arizona had a public campaign financing law under which candidates for state office who opted into the system could receive additional state matching funds beyond the default amount in proportion to money spent above that amount by a privately financed opponent or the opponent's independent supporters. The law was challenged successfully as a violation of the First Amendment. Rather than treat the additional spending as a form of government speech—and, in this case, counterspeech—that the government could direct as it pleased, the Supreme Court treated the government as impermissibly punishing the speech of the privately financed candidate.

Taken seriously, the Arizona case, Arizona Free Enterprise Fund's Freedom Club PAC v. Bennett, seems to imply that the government may not deploy its resources to counter or dispel the speech of identified private speakers. The idea that the government must adopt a neutral posture toward competing ideas may reside somewhere within Justice Jackson's famous identification of the notion that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or matters of opinion" as the most fixed of stars in the American constitutional constellation. At the same time, the Supreme Court has said outright that "government speech is not restricted by the Free Speech Clause" of the First Amendment. In other words, one line of Supreme Court doctrine sees government counterspeech as impermissible propaganda or punishment of speakers, and another sees it as unconstrained government expression.

Resolving the apparent tension between these two doctrinal lines is important to assessing the range of possible responses to the misinformation crisis. Some of the most promising possibilities in addressing misinformation involve the use of public resources. For example, Ethan Zuckerman has proposed that the government levy taxes on digital advertising to support independent and public service digital media. Others have advocated for application of the now-defunct fairness doctrine to counter low-value, false, or one-sided speech on internet platforms. Does the First Amendment permit the government to use its own speech to say a private person's speech is wrong, or to direct others to do the same? If so, subject to what conditions and constraints may it do so?

Any satisfactory answer to these questions requires an assessment of the constitutional status of government propaganda. Propaganda gets a bad rap, but governments engage in it pervasively, from routine press conferences to public school curricula to campaigns to promote policy positions or industry. It cannot be illegal per se for governments to push the political views of public officials, even if they spend resources to do so. At the same time, it is easy to imagine purely partisan or self-regarding instances of government speech—propaganda, that is—that would be so abusive as to exceed reasonable limits on state power.

As I elaborate below, distinguishing impermissible from permissible instances of government propaganda requires a functional analysis that relies on several factors: the purpose of the government speech; its degree of separation from the "private" speech of public officials; its transparency as to its source; the availability of alternative information channels; its electoral implications; and what I call the "generality" of the speech, or the degree to which it is directed at particular individuals or identity groups. Government speech does not need to be neutral—how could it be?—but it ideally should not be personal.

It would be fair to object that a "totality of the circumstances" inquiry of this sort is unmanageable by judges. That may be so, but there are nonetheless ways in which intentional thinking around these principles is useful. Judges might be able, for example, to use these factors as part of a kind of constitutional avoidance inquiry that helps shape existing First Amendment categories. And of course, judges need not be the audience. Building out principles of public morality that both constrain and motivate the behavior of government officials is important even in the absence of judicial review. Indeed, even when judicial review is appropriate, political development of those principles ordinarily should precede judicial involvement and shape the exercise of judicial power.

More broadly, tailoring the inquiry to questions of justiciability tends to reinforce the pernicious idea that the appropriateness of government speech turns on whether it infringes the rights of an objecting listener or competitor. As the Arizona public finance case demonstrates, we have come to understand free speech rights through the "pathological perspective" that Vince Blasi memorably identified, where the measure of a right is the dystopian world that would result from its wanton abuse by government officials. This is a mistake. Pathologies of governance can run in both directions. We should devote at least as much attention to the sorts of constitutional norms that are needed to make government effective as we do to the norms that are needed to avert tyranny.