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Chen on Smith on Government Speech

By Lawrence Solum

Alan K. Chen (University of Denver Sturm College of Law) has posted Right Labels, Wrong Categories: Some Comments on Steven D. Smith?s, Why Is Government Speech Problematic? (Denver University Law Review Online, Vol. 87, No. 78, 2010) on SSRN. Here is the abstract:

This essay is a response to a paper presented by the noted First Amendment scholar, Steven D. Smith, at the 17th Ira C. Rothgerber, Jr. Constitutional Law Conference, ?Government Speech in Transition.? In his thoughtful paper, Professor Smith addresses the theoretical underpinnings of free speech analysis as applied to the confounding problem of government speech. He argues that much of the confusion surrounding government speech can be addressed by reaching a clearer understanding of three problems ? the unnecessary problem (a misguided commitment to government neutrality), an unnoticed problem (the issue of institutional capture), and the ?big? problem (the lack of a working consensus about the proper role of government). The essay agrees that these labels are useful, but asserts that Professor Smith attaches each of them to the wrong problem. Rather, it argues, neutrality has been, and remains, the big problem; institutional capture is a non-problem; and the working consensus about the function of government is the unnoticed problem (perhaps because it is also an impossible one).

Full post as published by Legal Theory Blog on September 20, 2010 (boomark / email).