Because the story landed on Saturday, the graveyard of high-profile news coverage, and only two days before the Miers announcement, readers may have missed this story noting a new report by the GAO concluding that the administration violated federal law by “buying favorable news coverage of President Bush’s education policies, by making payments to the conservative commentator Armstrong Williams and by hiring a public relations company to analyze media perceptions of the Republican Party.”
This was a statutory and not a constitutional issue. But readers who are interested in the complicated issues surrounding accountability for anonymous government speech may want to read a new article by Gia Lee, a professor at UCLA Law School, entitled “Persuasion, Transparency, and Government Speech.” See 56 Hastings LJ 983 (2005); it’s available on Westlaw and LEXIS. Lee — who will be speaking at my law school, Southwestern University School of Law, later this academic year — thoroughly explores the issue of transparency and government speech. She argues that government, for reasons of political accountability, may not be as free to speak as private speakers, and particularly that it may be subject to a higher standard of transparency and non-anonymity than private speakers. She explores the implications of this principle both for the courts and as “a hortatory constitutional ideal to which all government actors should adhere.”
This is an interesting and worthwhile read, which I am still absorbing. Given my own work and that of others, I think that the occasions for application of her transparency principle would depend in part on the institutional role played by government in a given instance — for instance, government may be subject to different obligations when acting as an editor than it might in other circumstances — and I am curious about how her argument would play out in the context of the Solomon Amendment litigation, in which much of the background debate is about what message students receive when the military recruits on campus. (Obviously, the government is speaking non-transparently here in certain respects — can’t get around those uniforms! — but the universities claim [wrongly, I think] that the presence of the recruiters on campus as a result of the government’s funding conditions also sends a mesage about the university’s views.) But these are friendly suggestions about a worthy paper. Finally, like Lee, I am troubled by the majority opinion in the Court’s recent Johanns decision, which in my view (and hers) did not give enough weight to the fact that the government was not clearly identified as the speaker in that compelled-association/government speech case. Given Johanns, her paper is very timely indeed.
Read the whole thing, as they say.
Posted by Paul Horwitz on October 4, 2005 at 04:22 PM
» Iran: Another Iraq in the making? (part 2 of 2) from Iran Affairs This is how system of censorship mainly works in the US: you don’t have to silence people by killing them or throwing them in jail, you simply drown out their voices and overwhelm their views by dominating the marketplace of ideas. And we saw the dange… [Read More]
Tracked on Nov 20, 2007 12:58:02 PM