The State & Human Rights
Government Speech in a Neutral State
Andras Sajo
Professor of Law, Central European University, Legal Studies, Budapest, Hungary and Global Law Faculty, New York University School of Law

Modern governments participate in the public discourse in a number of ways. Government officials speak: they have to inform and convince the public about future state actions. Still, in the United States, government speech intended to perpetuate power has been held unconstitutional from the Founding days. Governments regulate the sphere of communication to shield the public discourse from private monopolists. Activities funded by public money send cultural messages, limit or promote the distribution of certain views. Unless carefully proscribed, such interventions may result in further skewing of the public debate.

Government speech is protected speech like any other speech. However, given the enormous resources at its disposal, unlimited government speech may drive out all other speech. Hence the need to consider the possibilities of its restriction.

Legitimate restrictions to free speech originate from the ideal of the neutral state. The neutrality requirement can be related to a liberal expectation regarding the nature of the state or it may originate from constitutionalized concerns. Although neutrality in the speech domain has never reached the absolutes of state neutrality in religious matters, certain elements of belief neutrality do exist with regard to speech.

Neutrality considerations are dictated by the requirements of the democratic process, equality, political credibility and special institutional needs. As these concerns are different, neutrality may have different connotations while it does not offer a justiciable standard. The strictest scrutiny of government speech restriction protects democratic governance against self-perpetuation. In other areas substantive criteria, institutional and procedural solutions help to avoid governmental indoctrination in the sphere of speech. The most important examples of neutralized spheres are education (higher education in particular), arts (funding) and the press. Institutional immunity from governmental intervention shall be accompanied by judicial review of internal speech practices in order to allow a level of neutrality which should respect the function of the institution.

The paper contrasts the above normative concerns with the prevailing tendencies of neutralization of government action in the sphere of speech. In the age of the Internet government is only one of the many competing centers of power in the communication sphere. Also, modern forms of democracy and corporativism encourage the transfer of decisions to non-governmental entities. In a decentralized state politicians try to avoid accountability and delegate decisions to a neutral and professional public bureaucracy.

Neutrality becomes highly suspect when a state undertakes to rectify imperfections of the marketplace of ideas. Some courts, like the US Supreme Court, are basically non-interventionist, allowing considerable cultural shaping by the administration in the spirit of 'winner-takes-all'. In welfare states like Germany, the state is expected to guard the sphere of public discourse including education and broadcasting. An interventionist attitude is present in transition-to-democracy countries. This approach is particularly dangerous to free speech due to the dominant position of the state in society and in discourse. The emerging solutions depend on the nature of the state, the level of state domination over society, the constitutional stature of speech and the architecture of the actual discourse space.