cearta.ie

the Irish for rights

SSRN-Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites by David Ardia

Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites

David S. Ardia, Berkman Center for Internet & Society

Brigham Young University Law Review, Forthcoming

Over the past decade, governments at all levels have moved with alacrity to engage with their citizens online, launching thousands of government websites, including blogs, discussion boards, and other online platforms that solicit public participation. When government engages with the public online, however, it raises difficult questions about the limits of the government’s ability to control its own message, to subsidize the speech of others, and to restrict private parties from speaking.

Courts typically apply the First Amendment’s public forum doctrine to answer these questions, but that doctrine is ill-suited to deal with online forums because it has not kept pace with the changes in public discourse in our increasingly networked world. To overcome the public forum doctrine’s shortcomings, courts are looking to the recently minted government speech doctrine to deal with conflicts over speech on government websites. Unlike the public forum doctrine, which is premised on the idea that all citizens have an equal right to speak in the public forum and a right to equal treatment from the government, the government speech doctrine is based on the assumption that government not only can, but must, privilege some viewpoints over others.

The government speech doctrine, however, suffers from a disturbing circularity. The Supreme Court’s current test, which turns on whether the government “effectively controlled” the message being conveyed, simply requires that the government be effective in doing the very things that are the subject of a plaintiff’s First Amendment challenge. Indeed, the more aggressive the government is in controlling speech, the greater will be its entitlement to claim special treatment under the government speech doctrine.

Echoing Justice Souter’s concurrence in Pleasant Grove City v. Summum, I argue that the government speech doctrine should be grounded in meaningful governmental accountability. That is to say, the doctrine should ensure that recipients of government speech have enough information about the government’s expressive activities that they will be capable of holding the government accountable when it overreaches. Fortunately, the government already has access to the tools it needs to be transparent about its expressive activities online. The real question is whether the government has the will to do so and whether the law provides sufficient incentives when that will is lacking.

Related Tags: [ ]

Leave a Reply

 

Welcome

Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

Academic links
Academia.edu
ORCID

Subscribe

  • RSS Feed
  • RSS Feed
  • Subscribe via Email
  • Twitter
  • LinkedIn

Archives by month

Categories by topic

My recent tweets

Blogroll (or, really, a non-blogroll)

What I'd like for here is a simple widget that takes the list of feeds from my existing RSS reader and displays it here as a blogroll. Nothing fancy. I'd love a recommendation, if you have one.

I had built a blogroll here on my Google Reader RSS subscriptions. Google Reader produced a line of html for each RSS subscription category, each of which I pasted here. So I had a list of my subscriptions as my blogroll, organised by category, which updated whenever I edited Google Reader. Easy peasy. However, with the sad and unnecessary demise of that product, so also went this blogroll. Please take a moment to mourn Google Reader. If there's an RSS reader which provides a line of html for the list of subscriptions, or for each RSS subscription category as Google Reader did, I'd happily use that. So, as I've already begged, I'd love a recommendation, if you have one.

Meanwhile, please bear with me until I find a new RSS+Blogroll solution

Thanks,

Eoin.

Licence

Creative Commons License

This blog is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. I am happy for you to reuse and adapt my content, provided that you attribute it to me, and do not use it commercially. Thanks. Eoin

Credit where it’s due

The image in the banner above is a detail from a photograph of the front of Trinity College Dublin night taken by Melanie May.

Others whose technical advice and help have proven invaluable in keeping this show on the road include Dermot Frost, Karlin Lillington, Daithí Mac Síthigh, and Antoin Ó Lachtnáin.

Thanks to Blacknight for hosting.