Governments, by the nature of their functions and purposes, communicate with people inside and outside of their jurisdictions. This process may be called “government speech.” The “law and policy of government speech” in different countries typically depends upon the nature and type of each government and how much that government controls its press systems. Globalization and related changes to governments more and more influence how those laws and policies are shaped. Whereas the press during the twentieth century, particularly in the United States, was a “primary conduit for information” about government to the people, governments now regularly use media in alternative conduits to exert control over that information, with negative implications for democracy, as Braman and Nerone (1995, 162 –176) have argued.
The law and policy of government speech for a particular nation may in fact be defined by the limits that nation puts on the government for communication. “Government speech” is viewed in the context of the transition to democracy by numerous countries around the world. Fundamentally, the issue revolves around the limits on expression a constituency can put upon its own government. Government speech can at times be propaganda, which has a more negative connotation than simple persuasion.
And some governments – including the US government – explicitly have had checks and balances to minimize the propagation of propaganda to its own people. Legal issues arise, including the extent to which a country’s government can propagandize to its own people; the ability of a ruling party to do this may keep minority parties and other voices from being heard, and thus undermine democracy. While the particular nuances of government speech in US law may provide a template for discussion, each country in the world has unique characteristics in how it handles legally the issue of whether and how to control government speech.
Government Speech in The United States
Historically, the United States has provided checks and balances on its own speech. The Smith-Mundt Act (1948), for instance, has forbidden domestic propagandizing, though such restrictions might undermine the free “flow of information.”
Recent decisions by the US Supreme Court have given the federal government more latitude to express itself to its own citizens. And common practice is for the US government to fund a multitude of expressions like art, music, and broadcasting. But the Court also has narrowed the expressive rights of government employees. Generally, government speech in the United States has been addressed in a series of cases since Rust v. Sullivan (1991), when the US Supreme Court held that the prohibition on government funding of communication about abortion does not violate the First Amendment rights of those communicating about abortion. The Court reasoned that the federal government can hold and communicate a particular viewpoint, if Congress has approved that viewpoint and its communication. In Johanns v. Livestock Marketing Association (2005), the US Supreme Court held that the funding of particular advertising by the federal government “was ‘government speech,’ not susceptible to First Amendment compelledsubsidy challenge.” The Court reasoned that, since Congress chose to fund the promotion of beef and related products as part of the political process and thus “subject to democratic accountability,” and since the government speech was not attributed to the respondents, the respondents’ First Amendment rights were not violated.
The United States now has narrowed the free expression rights of government employees in particular circumstances, placing upon them the government’s controls if they speak as part of that government, even while criticizing it. In 2006, the US Supreme Court in Garcetti v. Ceballos used a two-part test from earlier cases to hold that the government could restrict the speech of one of its employees – despite First Amendment’s general guarantees of freedom of expression for even government employees – if the employee did not speak “as a citizen on a matter of public concern” and if the government had “an adequate justification for treating the employee differently from any other member of the general public.” The Court also said, “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” This appears to mean that government employees, speaking as government employees, have slightly diminished First Amendment rights and thus can be punished by the government if they express themselves in a way that undermines certain government purposes.
Thus, the US Supreme Court has established a precedent that government speech – as long as Congress has decided through the political process to fund or express that speech – does not violate the First Amendment rights of US citizens who may disagree. This has caused concern among scholars, who argue that the overwhelming power of the government could subsume other parties and violate constitutional rights.
Government Speech by Indigenous Tribes in The United States
Indigenous tribes in the United States provide concrete examples of governments adopting policies of controlling the media to accomplish what they view as for the good of the tribes. This has raised concerns, though, about whether such controls violate the rights of freedom of expression for tribal citizens and for the tribal government employees who function as journalists, especially when those media outlets are owned and operated by those tribal governments.
Tribes in the United States are considered to be “domestic-dependent nations,” having at least some measure of sovereignty. The US Congress in 1968 guaranteed free expression rights for tribal members in the Indian Civil Rights Act, but the US Supreme Court in Santa Clara Pueblo v. Martinez (1978) held that tribes have the obligations to enforce those provisions. Thus, tribes may well decide to assert their own rights of government speech to control the expressions of others. This would be theoretically consistent with the US Supreme Court holdings that allow the federal government’s democratic decisions to fund certain speech, despite the claims by individuals and groups that such speech undermines their own expressive rights.
Government Speech in Australia
The High Court of Australia recently touched upon its law and policy of government speech in a case about whether the federal government had the necessary authority to pay for a nearly $4 million advertising campaign to push reforms of industrial relations in Australia. In Combet & Anor v. Commonwealth of Australia & Ors (2005), the High Court held that the expenditure was indeed appropriate under constitutional taxation and spending provisions, and did not reach the question of whether the Australian government had the authority to engage in such blatant propaganda to its own people.
The Combet Court instead considered issues of efficacy, or whether the particular advertising campaign achieved its intended effects, which were argued to be necessary to justify the public expenditure. Justice McHugh argued that the advertising should have a “rational outcome,” or some measure of efficacy. The plaintiffs in the case had argued that the expenditure should have been authorized by Parliament, rather than by the administration of Prime Minister John Howard.
Though the case focused upon the power of expenditure of Parliament, some have voiced a common concern that government speech needs to have checks and balances. A minority opinion by Justice Kirby cited the US Supreme Court’s opinion in Johanns and a quotation from President Thomas Jefferson, who had said that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical”.
Government Speech in China
In China, the state views itself as the nexus for speech. Article 35 of the Constitution of the People’s Republic of China (1982) guarantees freedom of press and speech, but Article 22 asserts the government as the primary impetus for “the development of literature and art, the press, broadcasting and television undertakings, publishing and distribution services, libraries, museums, cultural centres and other cultural undertakings, that serve the people and socialism, and sponsor mass cultural activities.” Chan and Qiu (2002, 36) note how this state control of expression has liberalized more and more because of “commercialization, improvisation, bureaucratization, internationalization, and technologicalization.” But this does not necessarily mean that China is adopting a libertarian model of the press.
In China, the state owns the media, but the media also are commercial. The Central Propaganda Department of the Communist Party controls the content and functions of all traditional media at all levels. Thus, there is no separation of press and state. Any speech is supposed to be government speech, under the Constitution and related statutes and cases. For instance, newspapers must “propagate the path and policies of the Chinese Communist Party and the People’s Republic of China,” according to one national statute.
The Case of Rwanda
An egregious example of government speech out of control is the role of a former Rwandan government’s use of the mass media to espouse hate speech and genocide. Former Rwandan radio and newspaper executives Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze – each with personal and professional connections to the former Rwandan government of President Juvenal Habyarimana – were appealing in 2006 their 2003 convictions of various crimes against humanity by a United Nations war crimes tribunal, the first such convictions of media personnel since Julius Streicher’s conviction and execution in 1946 for his role as a newspaper editor in promoting the genocide of Jews and others in Nazi Germany during the early twentieth century.
The International Criminal Tribunal for Rwanda noted that the president and the ruling party at the time primarily owned Radio-Television Libre des Mille Collines – the main tool of Nahimana, Barayagwiza, and Ngeze for promoting genocide.
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