Lesson 42 - Free Speech 3:

In What Capacity is the Government Acting?

The next step in analyzing a government-imposed speech restriction is to ask in what capacity the government is acting:

- As SOVEREIGN: If the government is acting in its capacity as lawmaker, controlling private people using private property, it has the least power to regulate speech. Examples: If the government bans nude pictures on all Web pages, or bans rudeness on all newsgroups, it's acting as sovereign (and, in this case, acting unconstitutionally).
- As EMPLOYER: If the government is constraining only what its employees say -- whether on or off the job -- it has much more discretion. (We'll explain just how much discretion it has several messages from now.) Example: If a government agency fires an employee for sending rude e-mail to a coworker, it's almost certainly acting constitutionally.
- As PROPRIETOR: If the government is constraining what people say on its property -- for instance, on its computers -- it also has more discretion, though how much depends on the kind of property. (Again, more on this later.) Example: If a government agency says it'll let anyone set up Web pages on its computer, but only if the pages are specifically related to issues in the upcoming election, it's almost certainly acting constitutionally.
- As K-12 EDUCATOR: If the government is constraining what primary and secondary school students say at school, it has very broad discretion indeed, though not unlimited discretion. Example: If a public school bans all profanity in student-to-student e- mail at school, it's acting constitutionally.
- As UNIVERSITY EDUCATOR: As a general rule, the government doesn't have the same extra discretion with regard to college or university students. In public spaces -- quads, sidewalks, cafeterias -- at the college, and generally in dorms, the rule is the same as for the government acting as sovereign. On university computers, though, the rule is the one for the government acting as proprietor, and for university employees, the rule is the one for the government acting as employer.
- As SUBSIDIZER: He who pays the piper calls the tune; if the government decides to spend money on a particular kind of speech, it can demand that the money be spent on that speech and not on other speech. Example: If the government wants to spend money on a "Say No to Drugs" e-mail campaign, it can require that none of that money be spent on, say, organizing support for a "Legalize Marijuana" initiative.
- As SPEAKER: When the government is itself speaking, directly or indirectly, it has complete control over what goes into this speech. Example: If the Wyoming Attorney General's office sets up a Web page, it can decide what goes on that page and what that page links to. It doesn't have to offer room for opposite views, and it can make the Webmaster put up whatever messages the Attorney General wants, whether or not the Webmaster agrees with them.

authors:

Larry Lessig David Post Eugene Volokh

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