Kitrosser on Politics, Knowledge, and Government Speech

Heidi Kitrosser, Northwestern Pritzker School of Law, is publishing Politics, Knowledge, and Government Speech in Elgar Companion to Free Expression (eds. Alan Chen & Ashutash Bhagwat, forthcoming 2025). Here is the abstract.

Pursuant to the body of law known as government speech doctrine, the government is free to shape its own speech as it wishes; the First Amendment imposes no limits on its content-based, even viewpoint-based choices in so doing. If interpreted very broadly, government speech doctrine endangers important free speech values. Among the most troubling aspects of an expansive government speech doctrine is its tendency to collapse lines between politics and expertise in state-run and state-funded enterprises. Local, state, and federal governments contain multitudes. They include elected officials and political appointees who formulate and champion policy and routinely engage in political messaging. They also encompass scores of civil servants who are non-political by design, often because their roles entail the carrying out of technical, professional, or other disciplinary expertise. Publicly employed disciplinary experts also include the thousands of public college and university faculty members with expertise in their respective subjects and in pedagogy. An expansive government speech doctrine treats the production of knowledge by publicly funded experts no differently from political messaging by elected officials. Such treatment threatens to distort public knowledge production. Distortion occurs when government purports to employ or subsidize educators or other knowledge producers but conditions that employment or funding on speech restrictions that distort the very nature of the funded enterprise. In this chapter, I expand on the problem of distortion and on a counter-force – the anti-distortion principle – that can meaningfully limit government speech doctrine. Among other examples, I discuss the state of Florida’s attempts to wield government speech doctrine to defend legislative restrictions on classroom speech by public university professors.

Download the essay from SSRN at the link.