Government Speech Doctrine Research Articles

The Government Speech Doctrine Ate My Class: First Amendment Capture and Curriculum Bans

The Government Speech Doctrine Ate My Class: First Amendment Capture and Curriculum Bans

A Proposal for A Canadian Government Speech Doctrine

How does section 2(b) law deal with factual scenarios entailing a close connection between government and expression, such that the public reasonably believes the speech in issue emanates from the government and not from a private individual? Foundational principles suggest section 2(b) has internal limits that prevent private speakers from co-opting the government’s voice. This paper reviews section 2(b) doctrine and reveals that existing law does not adequately facilitate consideration of this government nexus, resulting in confusion in lower courts on how to approach these factual scenarios. Drawing on American sources, this article proposes a solution: introduction of a “government speech doctrine.” Such a doctrine, properly modified to take into account the unique Canadian context, could bring conceptual clarity to this area of law.

Law in the Shadows of Confederate Monuments

Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws. When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim. The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.

Trump's Lies: The Unconstitutionality of Government Propaganda

Government propaganda—the government’s deliberate dissemination of false claims on matters of public interest—has increasingly become a source of concern in the United States. Not only does the current presidential administration disseminate propaganda at a rate unprecedented in the modern era, so that Americans now live in an age of government-created “alternative facts,” but the internet and social media have made it possible to find receptive audiences with alarming speed and accuracy. This surge of government propaganda poses troubling questions for the health of our democracy, which requires political accountability and the valid consent of the governed to thrive. Although the crucial role that speech plays in our democratic self-rule is a major reason it merits First Amendment protection, the Free Speech Clause as currently interpreted has no part to play in combating government propaganda. Under the government speech doctrine, the Free Speech Clause does not apply to government speech, including government propaganda. It is time to revisit that conclusion. This Article argues that government propaganda, although government speech, ought to be regarded as covered by, and in violation of, the Free Speech Clause. Admittedly, this proposal is radical for two reasons. First, with few exceptions, the free speech tradition in the United States is averse to regulating harmful speech. Such regulations are believed to invite government abuse and to chill private speech. However, neither of these concerns are triggered when the government is the object rather than the enforcer of speech regulations. The second radical aspect of this proposal is bringing government speech into the purview of the Free Speech Clause. Nevertheless, government propaganda sufficiently undermines the core goals of free speech such that the Free Speech Clause ought to address it.

Universities' Speech and the First Amendment

Increasingly, scholars and students alike suggest that university leaders should engage in speech to oppose racism and other systemic discrimination—and in May and June 2020, countless university leaders across the country did exactly that, expressing solidarity with the Black Lives Matter movement. That speech also contained implied answers to two questions: normatively, should a public university speak in this way, and legally, can it do so? Developing a robust answer to the second question is the focus of this Article, which brings together political scientist Corey Brettschneider’s conceptualization of government speech as persuasive or coercive; federal constitutional law (forum analysis doctrine and government speech doctrine); and recent changes in state law regarding free speech and public colleges and universities.

From Town Square to Twittersphere: The Public Forum Doctrine Goes Digital

Government officials like President Donald J. Trump and Maryland Governor Larry Hogan are increasingly using popular social media sites like Twitter and Facebook to connect and interact with their constituents and to solicit public comment on matters of public importance – whether on officially-designated government platforms (like https://www.facebook.com/GovLarryHogan/) or on unofficial platforms used for the same purposes. In recent years, government officials have increasingly turned to social media platforms like Twitter and Facebook in place of (and in addition to) actual town halls and other real-space forums to solicit public participation in policy formulation and to engage with their constituents. When such interactions between government officials and their constituents occur in real space like town halls, they fall comfortably within the scope of the First Amendment's public forum doctrine, which provides strong protections for freedom of speech and assembly, and prohibits government officials from discriminating against or silencing speakers based on their viewpoint. However, when such interactions take place in cyberspace -- on social media sites like Twitter and Facebook -- the application of the First Amendment's public forum is somewhat less clear. Social media sites like Twitter and Facebook are privately owned, which raises issues for the application of the First Amendment’s public forum doctrine. The public forum doctrine (which provides the greatest protection for free speech in general, as well as against content and viewpoint discrimination) traditionally applies to government-owned or government-controlled -- not privately-owned -- property. The private ownership of social media sites also raises issues for the application of the First Amendment's state action doctrine, which provides that the restriction of speech by and through private actors does not implicate the First Amendment except in narrow, limited circumstances. This Article examines whether and to what extent government officials' use of social media sites to interact with their constituents constitutes a public forum and what this forum analysis means for the ability of government officials to block or censor constituents on their social media sites. Such issues have recently arisen in the context of President Donald Trump’s blocking of constituents with whom he disagrees on his @realDonaldTrump/Twitter account. Similar issues have arisen in the context of Maryland Governor Larry Hogan’s and Virginia County Commissioner Phyllis Randall's blocking of constituents on their Facebook pages, in response to being asked challenging questions. The recent Supreme Court case of Packingham v. North Carolina sheds some light on the application of the public forum doctrine to social media sites and the use and misuse of such sites by government officials. In particular, Justice Kennedy’s opinion for the Court in Packingham extends his functional, expansive conception of the public forum doctrine to non-traditional forums that function as forums for public discourse. In Part I of this Article, I examine in detail the circumstances surrounding recent incidents in which government officials have blocked constituents from following them on Twitter and from commenting on their Facebook pages. Part II undertakes an analysis of the historical development of the public forum doctrine, its recent development in the digital age, as well as the government speech doctrine and the contrast between public forums and government speech. In Part III, I apply the forum analysis developed in Part II to the recent incidents of government officials' blocking constituents from accessing their social media sites, with an in-depth analysis of the Trump/Twitter lawsuit in particular, and conclude that such social media sites constitute public forums in which viewpoint discrimination is illegal. Part IV provides suggestions to government officials for developing policies governing social media accounts that comply with the dictates of the First Amendment, and a brief conclusion follows.

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.

Sticks & Stones May Break My Bones...But Symbols Hurt, Too: Government Speech & the First Amendment

This Article highlights a novel Mississippi case, Moore v. Bryant, where a Mississippi citizen filed suit against Mississippi’s Governor, Phil Bryant, alleging that the state’s flag that preserves the Confederate emblem caused him hypertension, irregular EKG reports, and insomnia. Moreover, this Article explores the Government Speech Doctrine and emphasizes the tension between rights of speech accorded to citizens and those delineated to the government. My argument expands upon Justice Stevens’ concurrence in Pleasant Grove City, Utah v. Summum, where he explained that the government did not have free license to communicate offensive or partisan messages. Moreover, the Court’s majority opinion emphasized that states must be cautious in selecting its symbols because state symbols are readily associated with its citizens, and states must be careful not to compel citizens to express views with which the citizens disagree. Currently, Mississippi is the only state in the country that preserves the Confederate emblem in its state flag. However, recent events have caused every public institution of higher learning in Mississippi to remove the state’s flag from its campuses. Because the legislature has refused to discontinue flying or remove the Confederate emblem from Mississippi’s state flag, this Article utilizes recent United States Supreme Court precedent to argue that the Confederate emblem is offensive and oppressive, and this Article presents a viable, first amendment argument government promotion of offensive symbols is a first amendment violation. Although Moore v. Bryant, was dismissed for lack of standing for failing to demonstrate a cognizable legal right to be free from government imposed stress that manifested hypertension, irregular EKG reports and insomnia, it inspired me to develop a novel first amendment argument that is legally cognizable because states cannot compel citizens to adopt offensive speech or any speech for that matter. This Article has the potential to permanently retire the Confederate emblem from government property and placed into a museum where it belongs.

The Impact of <i>Walker</i>>s Government Speech Extension on Public Transit Advertising

In its 2015 decision, Walker v. Tex. Div., Sons of Confederate Veterans, the Supreme Court held that a state specialty license plate program constituted government speech, even though a private entity created and submitted the plate for approval. The Court’s decision broadened the scope of the government speech doctrine and failed to remedy the constant clash between the public forum doctrine and the government speech doctrine in situations where a private individual or organization speaks while utilizing government property.Walker is directly at odds with the public forum jurisprudence, specifically Rosenberger v. Rector & Visitors of Univ. of Va. and Lehman v. Shaker Heights. Further, the Court has offered no guidance regarding the distinct similarities between the cases or the context at issue. Thus, the Walker extension reinforces the argument for a government speech analysis in the public transit-advertising context. The current instability that exits within the public transit cases suggests that the government speech argument will likely be reconceptualized and extended to cover private speech and transit advertisements.This Article argues that courts should adopt a concrete test to distinguish between private speech and government speech, in order to preserve the protections afforded private speech by the forum doctrines. Part I of this Article provides a concise overview of the government speech doctrine and the public forum doctrine, and addresses the Court’s most recent government speech doctrine extension in Walker v. SVC. Part II examines the dangers of extending government speech and analyzes the tension between Walker and the application of the public form analysis in Rosenberger and Lehman. To address the conflict between private speech and government speech, and the dangers of extending the government speech doctrine, Part III examines the current instability of the public forum analysis in the transit-advertising cases, including an evolving circuit-split, and pre-Walker government speech arguments. Finally, Part IV identifies and crafts a factor test that courts should consider when rectifying the conflict between private speech and government speech post-Walker.

'Kill the Sea Turtles' and Other Things You Can't Make the Government Say

In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that specialty plates are private speech, one that they are government speech, and another that specialty plates are hybrid speech. Yet another circuit has held that the issue is non-justifiable under the Tax Injunction Act. And the uncertainty continues as North Carolina, Texas, and Oklahoma currently confront litigation over their license plates — litigation that will determine whether States or third parties have the right to select the messages on specialty license plates. This paper explores the Court’s “recently minted” government speech doctrine in the context of specialty plates. In particular, it analyzes the circumstances under which a State can adopt one message (Save the Sea Turtles) while refusing to authorize opposing viewpoints (Kill the Sea Turtles). To date, the majority of circuits has applied a literal speaker test, which looks to see if a reasonable observer would view specialty plates as government or private speech. Under that test, specialty plates are private speech, and any restrictions on the content of such plates must be reasonable and viewpoint neutral, even if a State disagrees with that message. The paper contends that a careful review of Summum, which was decided after all but one of the circuit court decisions, shows that the majority interpretation is wrong. The literal speaker test is inconsistent with the “control” test set out in Summum and Johanns. Under the Court’s new test for government speech, many specialty license plate programs are government speech, and third parties cannot force States to promulgate messages with which they disagree. If a state has a “Save the Sea Turtles” plate to promote conservation and the protection of its wildlife, it cannot be forced to offer a “Kill the Sea Turtles.” And the same holds true for more controversial messages such as Choose Life in North Carolina as well as Texas’s ban on plates containing divisive images such as a Confederate flag. Thus, this paper concludes that Summum marks a significant development in the Court’s free speech jurisprudence, one that affirms the States’ ability to control the messages on their specialty license plates as well as their other expressive activity.

Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, a new version of the unconstitutional conditions doctrine has been increasingly used to rob public employees of their constitutional rights. Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the subsidy approach in the government as employer context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as its own and regulates it freely. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law. This article argues for the restoration of Pickering, its constitutional balancing standard, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to speak without fear of retribution, assume the role of the vanguard of the citizenry, and protect fellow citizens from government fraud, waste, and abuse.

Government Viewpoint and Government Speech

Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City, Utah v. Summum, the city’s disagreement with a private message was the heart of its successful government speech argument. Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another? This Article explores that question and why it matters, and suggests ways to reconcile these apparently incompatible principles.

Government Property and Government Speech

The relationship between property and speech is close but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have – physical things, bundles of rights, or something else entirely? In the context of government property and government speech, the ill-defined relationship between property and speech creates a massive but underappreciated theoretical and doctrinal problem, that threatens the very existence of the public forum. The arc of First Amendment jurisprudence, particularly as manifested in public forum doctrine, has been towards limiting the government’s right to exclude unwanted private speakers. Government speech doctrine, however, effectively reinvigorates the government’s right to exclude unwanted speakers by transforming speech regulations into governmental expressive conduct, which under current government speech doctrine is entirely exempt from constitutional review. The government can therefore invoke not only its property rights, but the expressive nature of their exercise. Something has to give. Either not all property is expressive, or else not all expressive uses of government property are government “speech” exempt from constitutional scrutiny. Part I of this Article explores the first of these propositions, arguing that the relationship between speech and property requires a more nuanced treatment than it has heretofore received, and that property – whether conceived of as a thing, a legal entitlement, or a social relationship – both enables and is expression. But, as Part II of the Article shows, that conclusion cannot easily be extended into the context of government property and government speech. In government property/government speech cases such as Town of Pleasant Grove v. Summum, the question should be whether the government has the right to exclude unwanted speakers, not whether the exercise of such a right (assuming the government has it) is expressive. And the best way to answer the correct question is by looking not to formal property rights, but to social understandings of property.

Pleasant Grove v. Summum: Is Ten Truly Greater than Seven? An Examination of the Government Speech Doctrine Regarding Privately Donated Monuments Displayed on Public Land

In Pleasant Grove v. Summum, the United States Supreme Court held that it is constitutional for the City of Pleasant Grove, Utah to deny a religious group’s request to place a monument in a park even though a donated monument of the Ten Commandments was already on display there. This case note examines the progression of the law before this decision, as well as the changes it made and the possible repercussions to come.

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

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.

Licensing Facially Religious Government Speech: Summum’s Impact on the Free Speech and Establishment Clauses

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment — that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause — the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision on the Free Speech and Establishment Clauses. This paper analyzes the interaction between Summum’s “recently minted” government speech doctrine and the Establishment Clause. In particular, with respect to the Free Speech Clause, I argue that Summum resolves an ongoing Circuit split regarding a common medium of expression — specialty license plates. Recently, six Circuits have reached at least three different conclusions with respect to the status of specialty license plates, and two other Circuits have addressed the First Amendment issue in passing. In addition, a petition for writ of certiorari has been submitted seeking Supreme Court review of a 2008 Seventh Circuit case dealing with this very issue. I maintain that Summum’s new test for government speech is inconsistent with the test that the majority of Circuits has applied to specialty plates. Whereas the majority considers whether a reasonable observer would identify the government as the speaker, Summum focuses on the level of control that the government has over the specialty plate program. Under Summum’s “control” test, many (and possibly all) specialty plate programs — as well as many other forms of speech that are subject to government control — are government speech and, therefore, are exempt from First Amendment scrutiny. Moreover, I contend that Summum’s control test necessarily alters the Court’s analysis of facially religious government speech under the Establishment Clause. Although the Establishment Clause still applies to government speech, the endorsement test does not. To understand why, the paper explores the effect of the government speech doctrine on an issue of first impression — a specialty license plate containing the phrase “I Believe” and a picture of a cross superimposed on a stained glass window. Although the lower court concluded that the plate violated the endorsement test, Summum changes the analysis. Under Summum, the government has the right to say what it wants even though the government’s intended message may differ significantly from the message that observers ascribe to the government. As a result, when dealing with government speech, Justice O’Connor’s “reasonable observer” test focuses on the wrong party — the reasonable observer instead of the government speaker. That is, when determining whether facially religious government speech violates the Establishment Clause post-Summum, the Court must determine whether the government actually has an improper religious motive, not whether a reasonable person interprets the message as impermissibly religious. I conclude that a majority of the current Court is apt to apply the control test and hold that the “I Believe” specialty plate is constitutional.

Defining Government Speech: Recent Approaches and the Germaneness Principle

In the last decade, the U.S. Supreme Court and lower federal courts have fashioned the -principle that the First Amendment does not limit the government's ability to determine the content of its own messages. Yet the Supreme Court has not defined what is meant by “government speech.” Defined broadly, it may encompass viewpoint-based messages on controversial social issues, privately funded advocacy on behalf of certain industries, and official endorsement of certain ideologies. In the face of this uncertainty, and confronted with numerous recent cases in which the government asserts its right to expression, the U.S. courts of appeal have devised three major approaches to distinguishing government speech from private speech. The Supreme Court touched on aspects of these approaches in an important 2005 opinion, yet significant questions remain about the definitional contours of the Court's developing government speech doctrine.