“Executing the Powers With Which it is Intrusted”: Justifications, Definitions and Limitations of Government Speech

Abstract

Federal, state and local governments have realized that an effective way to counter an undesirable private message is to swallow it up within the government's own speech. So far, the Supreme Court of the United States has acquiesced, including its February 2009 opinion in Pleasant Grove City v. Summum. This article explores the roots, definition and limits of government speech through a close examination of not only Summum but two other recent Supreme Court opinions granting the government a right to communicate even when others contend that the speech conflicts with their own messages. The article concludes that the government speech doctrine needs further explanation with regard to its justification and contours. The rational basis test and political process may not be sufficient to contain government speech within desirable bounds; instead, government speech should be subjected to judicial scrutiny to ensure it remains germane and proportional.