The government's right to express its message

[Robert Sheridan]

Hmmm...

Government has powers, granted.

Government has duties, also.

But government doesn't have rights?  That's a new one.  Don't both  
sides in a criminal prosecution have the right to a jury trial, to so  
many peremptory challenges, etc?

Government has the right to exercise its powers, that is, to regulate  
within its enumerated powers.

Government has the right, power, and perhaps duty to manage its  
property, operate its programs within their limits, etc., when wearing  
those other "hats."

I'm not sure it's erroneous to think of government as having rights as  
well as duties and powers, and that it may be useful in some contexts  
to parse them out as what they most closely resemble, or are.

rs
sfls


On Feb 7, 2008, at 2:21 PM, guayiya wrote:

> Category error: government has powers, not rights.  The spending  
> power can of course be used to fund speech, if necessary and proper  
> to a legitimate function, and if the speech does not violate  
> anyone's personal rights.  But a case holding that government has  
> free speech rights would be nonsense.
> Daniel Hoffman
>
> Malla Pollack wrote:
>>     JOHANNS v. LIVESTOCK MARKETING ASSN., 544 U.S. 550 (2005)...
>>
>> ----- Original Message ----
>> From: Robert Sheridan <rs at robertsheridan.com>
>> To: CONLAWPROF Prof list <CONLAWPROF at lists.ucla.edu>
>> Sent: Monday, February 4, 2008 6:37:56 PM
>> Subject: The government's right to express its message
>>
>> The United States has a message that it issues to the world.
>>
>> It favors democratic self-government that respects individual rights
>> including the right to property, due process, and equal protection of
>> law, not necessarily in that order but that's the idea.
>>
>> To promote our image in the world the State Department has long  
>> funded
>> entertainment, athletic, educational, medical, rescue and relief
>> programs all over the world at considerable cost to the taxpayer  
>> using
>> gov't facilities; including, for one example, the Navy to deliver
>> equipment and supplies after the tsunami in the Indian Ocean a few
>> Christmases ago.
>>
>> We also promote and distribute foreign aid and food aid including
>> packaging labeled as coming from the U.S.
>>
>> We support the Voice of America, but only for messages aimed off-
>> shore; it is forbidden for VOA to broadcast for the domestic  
>> audience.
>>
>> The armed services provide fly-overs at SuperBowl and honor guards  
>> for
>> civilian functions.
>>
>> The military also cooperates with Hollywood movie productions, but
>> only those which portray the service branch and by extension America
>> in a favorable light.
>>
>> You may be able to provide many more examples.
>>
>> My question is whether there is a case which sets forth clearly and
>> directly that government has a constitutional right to speak for
>> itself, to promote a message, or "its" message, and not to be  
>> required
>> to support a competing message.  I assume that the parade cases
>> (Hurley) and the Boy Scout case  (Dale) support the view that the
>> organizer of an outfit is not required to admit competing messages  
>> and
>> that this result favors gov't-as-speaker.
>>
>> I also understand, now that I've read, or reread them, thanks to
>> Howard for calling them to attention as more than relevant, that the
>> Rust and NEA cases treat of this as well.
>>
>> But I was wondering whether the question had come up:  Does  
>> government
>> have a constitutional right either to (your choice) promote its
>> message (or propagandize).
>>
>> Suppose one of the two main political parties, seeing that the other
>> had a death-grip on the levers of government, including the
>> loudspeaker, hypothetically, of course, were to sue to restrict the
>> flow of rivers of money to one side of a disputed cause:  assuming
>> standing (don't laugh), what leading case supports one side or the
>> other?
>>
>> Do we have a directly-in-point case or is the government's right to
>> free expression either presumed, undecided, or a hodge-podge of
>> decided cases pointing in that direction?
>>
>> As a kid I'd assumed that we had the right to freely criticize
>> government officials and was surprised later to learn that it wasn't
>> until NYT v. Sullivan came along around 1964 that the court  
>> officially
>> and ringingly recognized the right, essentially with impunity, in a
>> single decided case.
>>
>>
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> <guayiya.vcf>

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