The ‘Competition of the Market’: “Enter the Elephant!” [A Restatement of a Most Perplexing First Amendment Conundrum]

Authors

William W. Van Alstyne, Duke Law SchoolFollow

Document Type

Working Paper

Publication Date

2014

Keywords

First Amendment, government speech, propaganda

Abstract

This short essay revisits the enduring problem of “government propaganda” in the domestic marketplace of “competing ideas.” Drawing his argument from the suggestions and from strongly worded dicta by several famous twentieth century justices (most notably Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson and Hugo Black), Van Alstyne suggests that the First Amendment invests every ordinary citizen with suitable standing (akin to that of a corporate shareholder) to call upon any judge bound by oath of office, as set forth in Article VI, and whose aid is thus appropriately invoked, to enjoin the government from acting as an ideological partisan).

The essay provides examples of left and right-wing use of government propaganda to provoke the reader to share the author’s concern. Does it make any sense to say that the First Amendment may forbid the government to silence unpopular views but freely allow the government itself to weigh in through its own partisan propaganda? What happened in Germany when the courts of that sophisticated nation sedulously adopted that view?

Citation

William W. Van Alstyne, The ‘Competition of The Market’: “Enter the Elephant!” [A Restatement of a Most Perplexing First Amendment Conundrum] (May 19, 2014)