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Hastings Law Journal

Authors

Gia B. Lee

Abstract

Recent news reports indicate that federal, state, and local government entities and officials engage in pseudonymous or anonymous communications more often than we might imagine. Current trends, including advances in technology and the blurring of the public/private distinction, suggest that those types of communications will become only more frequent. Yet thus far there has been no sustained legal or constitutional analysis of such communications. This Article addresses that omission. It examines the issue of veiled government communications by drawing upon not only constitutional theory and case law but also social science research that explains how governments persuade and how citizens process information. Integrating those approaches, the Article argues that the legitimacy of government communications depends on the public's ability to identify what the government says and how it does so. It maintains that the constitutional commitment to political accountability counsels the government, unlike private speakers, to ensure the transparency of its communications-to make clear, in other words, the governmental origins of its messages. Otherwise, a government not only could conceal its role in promoting particular messages, but could make its views appear to be held by more esteemed or authoritative sources than they necessarily are, and to be more widely accepted than they really are.

The Article also contends that courts have a role to play in ensuring transparency. Although there is no judicially enforceable right to transparent government communications, courts should nonetheless take transparency into account in cases involving what the Article refers to as the "government speech" defense cases in which litigants assert First Amendment claims, and the government justifies its actions by arguing that it is merely exercising its broad latitude to speak. Courts should not accept that defense, the Article argues, unless, at a minimum, the reasonable recipient of the speech would understand that speech to originate from the government.

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