Smith on Government Speech: Neutrality vs. Institutional Capture

Rick mentioned this article by Steve Smith some time ago, but since I'm always behind in my reading, I only got to it yesterday.  I wanted in this post to note again that the piece is a worthwhile read and highlight some of Steve's interesting and (I think) elegant moves.

The doctrine of government speech recently has crept into cases whose facts implicate Establishment Clause issues.  Pleasant Grove v. Summum will be familiar to MOJ readers, and there has been a flurry of scholarly writing directed toward this development (for a good summary of the issues and a careful take on the question of government speech, see this paper by my friend, Mary Jean Dolan).  In a nutshell, here's the issue: if the "speech" of erecting a monument is private, then isn't it illegitimate for a municipality to discriminate for content-based reasons as to which monuments get public real estate?  If the same speech is public, then doesn't the municipality violate the Establishment Clause by putting up, say, a monument of the Ten Commandments and not putting up other religious monuments?

After the jump, some description of and thoughts on Steve's paper.

In the paper, Steve really only takes on the second inquiry, and he does so in a nifty way.  He steps back and asks -- why is government speech problematic?  Why do we care about government speech, so much so that we are prepared to strike down certain examples of this sort of speech as unconstitutional?

The usual answer to these questions -- and one which seems to be particularly influential in today's EC doctrine -- is that we want the government to be "neutral" in its speech.  And when the government erects some religious monuments but not others, it seems to be giving its imprimatur to the recognized religions and its deprimatur [sorry...] to the non-recognized religions.  Steve's arguments against neutrality as a guiding principle of the EC are well-known (starting in Foreordained Failure), and he rehearses some of them here (see particularly his discussion of whether "religious" speech is special for purposes of a neutrality analysis).

But once he has set neutrality aside, he makes a new move -- the deep reason for objecting to certain kinds of government speech actually has to do with the idea of "institutional capture": "associations can be captured by factions within them to express messages and promote positions extraneous to the associations' central purposes."  And Steve goes on to argue that the commandeering of an association -- including the government -- by powerful or particularly vocal interests to promote concerns that are not central to an association's purposes is both unfair to dissenters and injurious to free speech values.    

What follows from the move from neutrality to institutional capture, insofar as assessing the harms of government speech is concerned?  Here is the sharpest point.  What the move does is to liberate us from imagining (a delusion, for Steve, in any case) that there is some perfectly neutral point of view to which government should aspire, and to shift our focus instead to the issue of what messages are, in fact, extraneous to the association that is our government.  Unfortunately, the move doesn't solve the issue of when "government speech" is problematic (at least, it will be unfortunate for some...I tend to admire papers which create more problems than they solve).  That's because, as Steve says, people disagree about what government is for -- what its core or central functions are, and what its permissible -- even if not core -- roles may be.  The best that we can do in terms of consensus here is to recognize the difference between the government saying, on the one hand, that the Athanasian doctrine of the Trinity is true and the Arian doctrine heretical, and, on the other, the government affirming some much more generic support for "civil religion."  The point is not to offer a defense of civil religion.  It is only to acknowledge a range of legitimacy insofar as government speech (and therefore government's function) is concerned -- from the unquestionably inappropriately narrow, to the debatably broad(er). 

Consider Steve's analogy from another discipline: while we would achieve an overwhelming consensus that the government had acted inappropriately if it proclaimed that jazz music is the best form of music, and certainly much better than country western, it would be far less controversial (perhaps not controversial at all) for the government to proclaim that music was an important and valuable cultural form, and that we ought to promote music education and appreciation as widely as possible.  It is the narrowness of the former proposition -- and the widespread intuition that any government which stood behind it had been captured -- which distinguishes it from the latter.  That is, even those who might agree with the narrow proposition being propounded would recognize it as inappropriate. 

The difficulty, for me, is that the distinctions that Steve wants to draw seem to be more matters of degree than differences in kind.  But Steve might respond (he does not do so in the piece...I'm only speculating) that courts should use the rough instrument of constitutional invalidation only when the narrowness of the proclamation really elicits the widespread sense of institutional capture; failing that, invalidation would be inappropriate.

There is always much to chew over in Steve's work.  I hope readers will reflect on and enjoy the piece.