Government Speech

• Author: Steven Shiffrin
• Pages: 1215-1217

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FIRST AMENDMENT commentary has emphasized the danger of government as censor; thus lavish attention has been given to whether government can prevent Nazis from marching in Skokie, Illinois, Communists from advocating revolution, pornographers from selling their wares, or eccentrics from yelling fire in crowded theaters. Much less attention has been paid to the role of government as speaker; yet, one need only notice the ready access of government officials to the mass media, the constant stream of legislative and executive reports and publications, and the massive system of direct grants and indirect subsidies to the communications process (including federal financing of elections) to recognize that speech financed or controlled by government plays an enormous role in the marketplace of ideas. Sometimes the government speaks as government; sometimes it subsidizes speech without purporting to claim that the resulting message is its own. The term "government speech," therefore, includes all forms of state-supported communications: official government messages; statements of public officials at publicly subsidized press conferences; artistic, scientific, or political subsidies; even the classroom communications of public school teachers.

Basic assumptions of First Amendment law are sharply modified when governments speak. A basic canon of First Amendment law is that content distinctions are suspect. Indeed, in POLICE DEPARTMENT OF CHICAGO V. MOSLEY (1972) the Court insisted that government could not deviate " 'from the neutrality of time, place and circumstances into a concern about content.' This is never permitted." When governments speak, however, content distinctions are the norm. Government does not speak at random; it makes editorial judgments; it decides that some content is appropriate for the occasion and other content

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is not. The public museum curator makes content distinctions in selecting exhibits; the librarian, in selecting books; the public official, in composing press releases. If government could not make content distinctions, it could not speak effectively.

The government speech problem is to determine the constitutional limits, if any, on the editorial decisions of government. BUCKLEY V. VALEO (1976) squarely presented the issue. Certain minor party candidates argued that their exclusion from the system of public financing of presidential elections violated the First Amendment and...