Treating government speech as a unitary category has the appeal of simplicity. Disaggregating the state into a multiplicity of units and so of potential speakers, with a variety of quite different speech rights, considerably complicates matters. The problem is not just the multiplicity of categories from which we must choose in order to characterize any particular communication. The very contours of the speaking entity are often blurred and contested. Any attempt to ascribe a particular communication to a subdivision of the state is vulnerable to counterclaims based on a more unitary or a more fragmented view of the state. But the problem goes beyond complexity. Since people’s attitudes and understandings are constitutive of the nature and boundary of a social entity, the controversy may amount to an “ontological” disagreement. The disputants may not just disagree about fixing the most adequate unit of analysis, but their disagreement may reveal that no such single entity exists: the source of the disagreement may be conflicting clusters of beliefs and attitudes that are the constituents of differing collective units to which the disputing parties relate.
So, for example, a city council’s proposed resolution condemning the insensitivity of large corporations to the plight of laid-off workers can be for some the apt expression of a communal sentiment, provoked perhaps by a recent incident that occurred in the city. The city council’s speech directly expresses these supporters’ own frustrations and resentments. Others may perceive the council’s proposed resolution in more detached, organizational terms, approving of the communication or acquiescing in it because they view themselves as having delegated to the council expression as well as action on matters such as these. Still others would, in effect, deny the council both original (communal) and derivative (delegated) speech rights. They could do so, for example, by invoking their national identity, arguing that only those who can speak on behalf of the country as a whole—a branch of the federal government, perhaps—are qualified to make pronouncements in their name in matters of social justice.28 For these individuals, city council members are but low-level functionaries in the state’s hierarchy and should not presume to exercise any authority that is not derived from that inclusive structure.29 Now these conflicting views regarding the proposed communication can, in principle, all be valid. They express incommensurate but tenable social worlds. The social world inhabited by those who find an indispensable outlet of personal frustration in the council’s proclamation contains an entity, the local community, that is absent in the world inhabited by those whose primary identification in the present context is with the country as a whole and for whom the locality has purely instrumental significance. In contrast, the latter group lives in a social world in which the state is a viable community, absent from the world of those with the local identifications.
These reflections strike what at this point in the book should be a familiar note. They echo the constructivist theme broached in Chapter 1 and pursued throughout this book. And as on other occasions, this theme also has special relevance here for the role of judicial decisions. In deciding a First Amendment case, a court does more than settle the constitutional issue at hand; it also implicitly decides who the speaking subject is, thereby contributing to fixing, in an authoritative manner, the underlying social ontology and decreasing the indeterminacy just described. But, of course, a court can perform this (or any other) function only when a sufficiently pervasive and robust agreement prevails concerning the conditions under which someone’s pronouncements, such as on matters of collective speech rights, are made in one’s “judicial” capacity, thus on behalf of a “court,” so that when these pronouncements are made, all concerned rest assured that Government speaks!