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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