A Response to Professor Bezanson
Thursday, August 12, 2010 at 10:13 AM Robert F. Nagel†
Introduction
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).
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