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57 Tex. L. Rev. 863 (1978-1979)
When Governments Speak: Toward a Theory of Government Expression and the First Amendment

handle is hein.journals/tlr57 and id is 897 raw text is: When Governments Speak: Toward a Theory of Government Expression and the First Amendment Mark G. Yudof* Despite the immense practical importance of government ex- pression in modern communications networks, legal scholarship has only begun to address the role of government speech within the framework of thefirst amendment. Governments at all levels pos- sess considerable power to inform and lead the polity and thus to contribute to the development of a democratic consensus. But that samepower is potentially destructive of the citizenry's independence ofjudgment and may threaten theprocesses of democratic consent. Professor Yudof examines this dual nature of government speech and suggests theproper rolefor legitimate concerns about excessive government expression within the context offjirst amendment anal- sis. TABLE OF CONTENTS I. Government Speech and the First Amendment Framework A. First Amendment Rights for Governments .............. 865 B. Government Speech.- Direct and Indirect Limitations in the First Amendment Framework ...................... 871 II. The Traditional Vindication of Individual First Amendment Rights: An Indirect Limitation on Government Speech... 873 A. The First Amendment and Captive Audiences in Public Schools ............................................... 874 1. The School Prayer Cases .......................... 875 * John S. Redditt Professor of Law and Associate Dean for Academic Affairs, The Uni- versity of Texas. B.A. 1965, LL.B. 1968, University of Pennsylvania. The research for this Article was funded through grants from the Spencer Foundation, the Ford Foundation, and the Univer- sity of Texas Law School Foundation. The author wishes to thank the following persons for their many helpful criticisms and suggestions: Professors David Anderson, Philip Bobbitt, David Kirp, Sanford Levinson, Robert Means, Robert Mnookin, Scot Powe, William Powers, George Schatzki, and Laurence Tribe. I am particularly grateful to Professor David Filvaroff for his close reading of this paper and his countless suggestions for improvement. Professor Roy Mersky and his staff at the Tarlton Law Library at the University of Texas School of Law were immensely helpful in obtaining research materials. My research assistants, Danna Fischer, Douglas Gordon, David Jameson, and Olin McGill did yeoman's service in assisting my efforts. This Article is excerpted from the manuscript of a forthcoming book, M. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (manuscript at the University of Texas School of Law). 863

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