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Date: Spring 2021
From: Constitutional Commentary(Vol. 36, Issue 1)
Publisher: Constitutional Commentary, Inc.
Document Type: Book review
Length: 9,337 words
Lexile Measure: 1700L

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THE GOVERNMENT'S SPEECH AND THE CONSTITUTION. By Helen Norton (*) Cambridge, Mass.: Cambridge University Press. 2019. Pp. i + 242. $29.99 (paperback).


"[M]uch, perhaps most, human behavior takes place through speech...." (2) Justice Breyer's observation occurred amidst his dissent from the Court's choice to pay greater attention and direct heightened constitutional concern to government regulation of the ordinary exchange activities of private citizens, which occur by means of speech. In The Government's Speech and the Constitution, Helen Norton, too, seeks to expose and acknowledge the ubiquity and daily impact of speech. As the title indicates, however, she flips her focus from the more usual emphasis on the government as regulator of private speech to the acts and impacts of the government as speaker. It is the government's speech that, in her view, deserves greater popular and judicial attention than it has yet received... and heightened constitutional concern.

Norton's book follows Mark Yudof's When Government Speaks. (3) Legal scholars and courts, Yudof worried, had "failed to grapple with the realities of communication in the twentieth century," specifically the massive power of the government to "dominate[] the flow of ideas and information" and thereby falsify consent. (4) His book aimed to evaluate the extent of the problem the government's speech poses to democracy, expose the failure of classic First Amendment theory to identify and address it, and assess the abilities of various actors, by various means, to counteract the government's power in the speech market. The danger Yudof identified was structural. The salient injury was "to us all." (5) And the aspiration was "the creation of a structure for government and nongovernment communication that enhances autonomy, choice, and respect for the person" to correct the communication loop between government and citizens to put citizens in control. (6) Constitutional doctrine, and the role of courts in implementing the changes he suggested, appeared as but one part of a survey of democratic and communications theory and research and recommendations aimed at broad, systemic change. (7) Yudof hoped the book would "spark scholarly debate of long-neglected issues," and it did. (8)

Fast forward to the twenty-first century and the realities of communication, the government's power to communicate relative to its constituents and others seeking influence over them, and constitutional doctrine have changed. The rise of the internet and social media has augmented the government's power to communicate more widely and in new ways. But private corporations own and operate these vast, wide-open spaces for public communication and control the gates, foreign governments vie to manipulate consent according to an agenda that may, or may not, align with the interests of the current American national government, algorithms available to the highest bidder shape citizen opinions and political behavior, and constitutional doctrine increasingly privileges corporate power to communicate free from government restraint. "Government speech" has become a recognized category within the subset of Free Speech Clause doctrine where the government facilitates private speech. And the internet and social media have compounded and made more visible the...

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Gale Document Number: GALE|A671390262