Daniel Jacob Hemel

Public Perceptions of Government Speech

The Supreme Court accords starkly different treatment to private expression and government speech for First Amendment purposes. While regulation of private speech generally must be viewpoint neutral, the government is subject to no such requirement when it engages in speech of its own. But the line between private expression and government speech is often fuzzy. To draw this distinction, the Supreme Court has placed increasing emphasis on whether members of the public reasonably perceive the relevant expression to be private or government speech. We think this turn toward public perception is a welcome development: government intervention in the marketplace of ideas is especially dangerous when it is nontransparent, so before allowing government officials to escape the viewpoint-neutrality requirement, courts should verify that the public actually perceives the speech in question to emanate from the government. But the Court has so far failed to develop a reliable method for determining how ordinary citizens distinguish between private and government messages, relying instead on armchair speculation. Meanwhile, scholars have not yet mustered any evidence as to when and why individuals understand messages to be private expression or government speech. To begin to fill this empirical void, we presented a variety of speech scenarios to a nationally representative sample of more than 1200 respondents and asked the respondents to assess whether the speech in question was the government’s. Some of the speculative claims made by the justices in recent government speech cases are borne out by our survey, but others prove less accurate. We further find that respondents are somewhat more likely to attribute messages to the government if they agree with those messages themselves; in this respect, lay people may be little different from judges, whose decisions in government speech cases sometimes seem to be influenced by ideology. We end by considering whether courts should consult survey evidence in resolving cases that involve government speech claims. An advantage of survey experiments is that they can be used to disentangle the effects of medium from the effects of message, reducing the risk that government speech doctrine will systematically favor some messages over others. To be sure, the use of survey evidence raises a number of implementation issues that require careful thought, but we ultimately conclude that an empirically informed government speech doctrine would protect First Amendment values more successfully than a doctrine dependent upon judicial guesswork.

The False Promise of Presidential Indexation

The Trump Administration faces mounting pressure from conservative thinkers and activists — including calls from its own National Economic Council director — to promulgate a U.S. Treasury Department regulation that indexes capital gains for inflation. Proponents of such a move — which is sometimes called “presidential indexation” — make three principal arguments in favor of the proposal: (1) that inflation indexing would be an economic boon; (2) that the President and his Treasury Department have legal authority to implement inflation indexing without further congressional authorization; and (3) that in any event, it is unlikely that anyone would have standing to challenge such an action in court. This Article evaluates the proponents’ three arguments and concludes that all are faulty. First, whatever the merits of comprehensive legislation that adjusts the taxation of capital gains and various other elements of the Internal Revenue Code for inflation, rifle-shot regulatory action that targets only the capital gains tax would be costly and regressive, would open a number of large loopholes that allow for rampant tax arbitrage, and would be unlikely to significantly enhance growth. Second, the legal authority for presidential indexation simply does not exist. The Justice Department under the first President Bush reached the conclusion in 1992 that the Executive Branch cannot implement inflation indexing unilaterally, and doctrinal developments in the last quarter century have — if anything — strengthened that conclusion. Third, a number of potential plaintiffs — including a Democrat-controlled House of Representatives, certain states, brokers subject to statutory basis reporting requirements, and investment funds whose tax liability could rise as a result of the regulation — would likely have standing to challenge presidential indexation in federal court. In sum, the promise of presidential indexation turns out too hollow, and calls for unilateral action should be spurned.

Atlas Nods: The Libertarian Case for a Basic Income

Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in California, Canada, Finland, Italy, Kenya, and Uganda. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians — even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals? This Article seeks to answer that question. We first show that a basic safety net is not only consistent with, but likely required by, several strands of libertarian thought. We then explain why libertarians committed to limited redistribution and limited government might support a system of unconditional cash transfers paid periodically. Delivering benefits in cash, rather than in-kind, furthers autonomy by recognizing that all citizens — even poor ones — are the best judges of their needs. Decoupling such transfers from a work requirement acknowledges that the state lacks the ability to distinguish between work-capable and work-incapable individuals. Providing payments periodically, rather than through a once-in-a-lifetime lump sum grant, ensures that all individuals can receive a minimum level of support over lifespans of variable lengths, while also allowing individuals to adjust payment flows through financial market transactions. Although our main objective is to assess the fit between libertarian theory and a universal basic income, we also address various design choices inherent in any basic income scheme: who should receive it?; how large should it be?; which programs might it replace?; and should it phase out as market income rises? Lastly, we consider the relationship between a basic income and the political economy of redistribution. We find that the case for a basic income as a libertarian “second-best” is surprisingly shaky: libertarians who oppose all redistribution but grudgingly accept a basic income as the least-worst form of redistribution should reconsider both aspects of their position. We conclude by drawing out lessons from our analysis for non-libertarians, regardless of whether they are supportive or skeptical of basic income arguments.