The Fight over Government “Propaganda”
Earlier I blogged about controversies over government speech on contested issue campaigns. Critics of such government speech express concern that government’s voice threatens to coerce voters’ behavior and to drown out or otherwise unfairly disadvantage dissenting speakers.
Although most of these debates have centered on government expression that opposes or endorses ballot measures pending before the public, some critics also object to the government’s speech to the public that urges a position on contested policy issues to be decided by a legislature. As just one example, the Fourth Circuit recently considered a constitutional challenge to a local school board’s advocacy on proposed school voucher legislation pending before the state legislature. Among other things, the plaintiff there objected to the school board’s voter-directed speech opposing the bill, arguing for First Amendment limits on a government body’s advocacy to voters on a matter to be decided by the state legislature. The Fourth Circuit rejected his constitutional claim (appropriately, in my opinion, for reasons I describe in a recent paper).
Congress has similarly debated the propriety of executive branch officials’ and agencies’ advocacy to the public on matters to be decided by the national legislature. There too controversy swirls not only over the appropriate role of government – and when, if ever, that role demands neutrality or silence – but also over whether and when government speech poses dangers of coercion and unfairness. One often-articulated, but very broad view, characterizes government “propaganda” as any effort by the government to persuade its public listeners. Others are instead troubled only when the government’s persuasive efforts are covert, misleading, or monopolistic.
In response to various concerns about the potential dangers of such expression, Congress has regulated government “propaganda” on a number of occasions. As one example, since 1951 each Congress has enacted an appropriations rider that entirely bars federal agencies from unauthorized expenditures to engage in “publicity or propaganda.” Never, however, has Congress defined this statutory term.
This proposal was initially spurred by members of Congress unhappy with the Eisenhower Administration’s efforts to generate public support for its proposed health care legislation. In particular, the prohibition’s sponsors objected strenuously to, and characterized as potentially totalitarian, public speeches and other materials in support of the Administration’s bill by Oscar Ewing, the head of the U.S. Federal Security Administration (the federal agency that served as the precursor to today’s Department of Health and Human Services). Ewing’s advocacy triggered a debate over the value and danger of executive branch speech that remains unresolved today.
More specifically, congressional supporters of the propaganda ban objected to executive branch officials’ advocacy to the public on an issue pending before the legislative branch as not only potentially coercive of public opinion but also offensive to the appropriate separation of powers. The original congressional debate over the proposed rider thus centered on whether a prohibition on undefined propaganda would interfere with the government’s responsibility to inform the public about its programs, or whether it instead would simply prevent the government from adopting what some characterized as coercive “Soviet-style” governance tactics. The latter view prevailed, and the propaganda ban passed without any definition of the prohibited speech. The ban has remained in place as an appropriations rider throughout the 60 years since its initial adoption.
Despite this longstanding ban, executive branch agencies and officials of course regularly continue to speak to the public about a wide variety of matters, legislative and otherwise. Indeed, the office charged with monitoring the ban’s enforcement – the Government Accountability Office (GAO) – has emphasized government expression’s great instrumental value to the public, and has thus interpreted the ban narrowly and identified violations very rarely.
Later developments, however, renewed attention to the propaganda ban, its definitional deficiencies, and its lack of enforcement. Examples include the Department of Education’s contract with newspaper columnists to produce op-eds supporting the Bush Administration’s “No Child Left Behind” initiative without disclosing the Department’s sponsorship, as well as that Administration’s briefing of and other close involvement with retired military personnel, who then appeared on television as private military analysts offering their view of the war in Iraq and Afghanistan. Those controversies triggered new (but to date unsuccessful) congressional efforts not only to define prohibited government propaganda for the first time, but to define it very broadly.
My paper argues that broad prohibitions on government speech are as unwise as they are unrealistic, concluding that transparently governmental speech – i.e., speech that the public can identify as governmental in origin and thus for which the government can be held politically accountable – generally furthers, rather than frustrates, free speech clause values (and I would put Ewing’s speeches and materials in this category). More appropriate, in my opinion, are targeted restrictions to curb specific abuses. Along these lines, Congress could – and, in my opinion, should — encourage greater executive branch transparency by amending the longstanding propaganda ban specifically to prohibit advocacy in which the government fails to identify itself as the speaker and to provide meaningful enforcement mechanisms to punish and deter such covert governmental speech.