This chapter explores longstanding debates over the government’s speech to influence the public’s views about ballot initiatives, referenda, and other political contests subject to vote by the people themselves or by their elected representatives. The chapter starts by explaining the constitutional objections to the government’s persuasive speech in candidate campaigns, and then considers whether those objections still hold as applied to the government’s persuasive speech in issue campaigns. One constitutional objection to the government’s political advocacy focus on the consequences of the government’s speech, positing that the government’s voice—with its advantages of resources and power—inevitably and unfairly distorts public discourse. Another focuses on the government’s objectives when speaking, maintaining that the government’s role as sovereign requires it to remain neutral in these contests. The chapter concludes that the government’s issue advocacy valuably adds to the marketplace of ideas so long as its governmental source is transparent, so long as the government does not hold a monopoly over the relevant information, and so long as counterspeech remains unfettered.

This chapter examines the Court’s government speech docket to date, which has focused on disputes that require it to determine when the government itself is speaking and when it is instead regulating others’ speech. It explains how the constitutional rules for the government as regulator of others’ speech differ from those that apply to the government as speaker: when the government itself is speaking, then the Free Speech Clause constraints on the government as regulator do not apply. It then offers a framework for approaching these problems that emphasizes the value of transparency—that is, an insistence that the governmental source of a message be transparent to the public as a condition of claiming the government speech defense to a Free Speech Clause challenge. It then applies the transparency principle to difficult first-stage problems to come that will require courts to unravel competing governmental and nongovernmental claims to the same speech, to determine when an individual government official speaks as the government or instead as a private citizen, and to ascertain when an individual public employee’s speech is the actually the government’s to control.

This chapter considers when the government’s speech about others’ speech violates the First Amendment’s Free Speech or Free Press Clauses. It starts by exploring how the government’s speech can change, deter, or punish its targets’ speech: think of the government’s threats, disclosures, and designations that silence its targets’ speech, or its expressive attacks that incite or encourage third parties to punish its targets for their speech. It then examines the expressive harms inflicted by the government’s speech that disparages disfavored speakers, and whether that speech infringes Free Speech or Free Press Clause protections apart from any adverse effect on its targets’ choices and opportunities. Finally, turning from the consequences of the government’s speech about speech to its motives, it considers whether the Constitution prohibits the government’s expressive choices motivated by its intent to silence or punish speech to which it objects or its intent to interfere with the press's constitutionally protected functions. To illuminate the three approaches’ various strengths and limitations, the chapter closes by applying them to a range of problems both real and hypothetical.