5 - The Government’s Speech, Free Speech, and a Free Press

Summary

This chapter considers when the government’s speech about others’ speech violates the First Amendment’s Free Speech or Free Press Clauses. It starts by exploring how the government’s speech can change, deter, or punish its targets’ speech: think of the government’s threats, disclosures, and designations that silence its targets’ speech, or its expressive attacks that incite or encourage third parties to punish its targets for their speech. It then examines the expressive harms inflicted by the government’s speech that disparages disfavored speakers, and whether that speech infringes Free Speech or Free Press Clause protections apart from any adverse effect on its targets’ choices and opportunities. Finally, turning from the consequences of the government’s speech about speech to its motives, it considers whether the Constitution prohibits the government’s expressive choices motivated by its intent to silence or punish speech to which it objects or its intent to interfere with the press's constitutionally protected functions. To illuminate the three approaches’ various strengths and limitations, the chapter closes by applying them to a range of problems both real and hypothetical.