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.

Derek E. Bambauer, Brooklyn Law School, is publishing  Consider the Censor in a forthcoming issue of the Wake Forest Journal of Law & Public Policy. Here is the abstract.

WikiLeaks is frequently celebrated as the whistleblowing heir of the Pentagon Papers case. This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data.

Money Talks but It Isn’t Speech

by Deborah Hellman

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The Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech, and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the ground that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, the Article calls attention to the fact that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus, the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The Article argues that we ought to broaden the lens through which we view campaign finance cases. Rather than asking whether a restriction on campaign giving or spending violates the First Amendment, we should ask instead, when do constitutional rights generate a penumbral right to spend money?