Speech platforms.

• Author: Greene, Abner S.
• Position: Government Speech: The Government's Ability to Compel and Restrict Speech

The state plays different roles, and free speech doctrine should (and sometimes does) respect these roles. We properly insist (with some categorical exceptions) that the state not regulate private speech based on subject matter or point of view. If private speakers want to praise the Nazis or condemn homosexuality, the state has no place stopping them, even if firmly convinced these ideas are wrong. Why we have such firm protection for speech we abhor is a matter of much debate. To some extent, it's because we don't trust the state to make content-based judgments consistently as a matter of principle; we fear that too often it will be merely playing favorites, helping friends and harming enemies. One thing we know is that the state holds a monopoly over legitimate coercive force, and that when it jails or fines, it possesses the ability to squelch speech, and not merely channel it to another outlet.

We have similarly strict rules against the state's drawing content-based lines in public places where people have traditionally gathered. We may build streets primarily for ease of movement and parks primarily for recreation, but citizens also use both to meet and discuss matters of the day, to face ideas with which they may not be familiar (and sometimes find quite odd). We can always walk by or away from such speech, so we are never captive in these settings. Even if streets and parks are technically "owned" by the state and not by private capital, they are held as a kind of public trust. (That the state is really "we the people" acting via delegation can't get us very far; exploding the public/private line in this sense would raise difficulties in any area of free speech law, regarding whether the state is acting in a sovereign/regulatory or some other capacity.) We have made a collective decision--perhaps in part to ensure that not only the wealthy have adequate avenues for their ideas--to reserve some property as space where the state may not regulate speech based on content.

On the other end of the spectrum, the state sometimes speaks itself. Some examples are obvious and it is just as obvious that flee speech doctrine is out of place. So, when the President promotes his agenda or critiques his opponents, he may make whatever content-based statements he likes. Similarly, when the FDA announces warnings regarding a food or drug, it may say what it believes to be true, without giving equal time for the opposing point of view. The state, through these actors, may be advancing content-based, contested positions--even points of view--but we know there are ample opportunities in other fora for disagreement to be stated. Neither a regulatory monopoly nor state control over property held in trust for public gathering is involved here.

The state also speaks for itself in more disguised ways, and we generally are fine with it making content-based judgments there as well. Often this involves conditional funding, and the conditions often turn on speech content. If the state wants to promote childbirth (and possible adoption) over abortion, it may do so, whether it is speaking directly (say, through an official's speech to a group) or indirectly (say, through funding a clinic that agrees to follow these rules). Perhaps we should require that the state's role in such selective funding be transparent at every level, most importantly (in this example) to the women receiving the health services. But such selective funding neither coerces private choice nor dominates the market for the relevant speech. (I am assuming in this example that abortion-related information is otherwise available to the women who seek clinic help. In addition to improving accountability, the transparency concern helps ensure that the women seeking clinic help appreciate they may not be getting standard, purely professional, medical advice, but rather are getting the state's version; this will make it easier for them to appreciate that there may be other sources to which they must turn for other points of view.) Or consider if the state wants to fund the arts. It might not want to do so by lottery, but rather fund art it considers worthy of being backed by taxpayer money. This sort of judgment will inevitably involve attention to content. Perhaps the taxpayers want to fund only paintings of dogs or sunsets; or perhaps they don't want to fund art they find disgusting. Determining what counts as disgusting will involve attention to content. But we're talking about taxpayer dollars only; painters will still be able to produce, display, and sell disgusting art.

In these ways, we permit a great deal of content-based selectivity when the state acts via direct speech or conditional spending, rather than through regulating. And the selectivity may be based on subject matter or on viewpoint. The former is clear. The latter seems harder, but is also clear. When we permit state conditional funding for "we encourage you to carry your child to term" but refuse such funding for "here are abortion alternatives," we are permitting a viewpoint distinction. When we permit a government agency to award arts grants only to work that is not indecent, we are permitting a set of case by case viewpoint distinctions. Indecency as a category isn't obviously viewpoint-based, because it is in large part about taste and what seems disgusting or revolting. This kind of aesthetic judgment is hard to cubby-hole in our free speech doctrine. But if the underlying purpose of the limitation is to refuse taxpayer dollars for art that challenges mainstream sensibility via certain types of sexual images or images related to bodily functions, that desire to preserve mainstream values is similar to what happens when we fund a preferred viewpoint on a contested issue over another.

That we permit content-based selectivity when the state acts as funder has nothing to do with the limited amount of funds available. We could insist on a lottery. We permit it because we want the state, acting in our name, to endorse some speech as good and refuse to give its endorsement to other speech. We don't live in the type of liberal democracy that would be strictly neutral (if such a thing were possible) as to the good. Because we insist on strict rules for regulation of private speech and for certain types of state-owned property (streets and parks), we can preserve a robust, freewheeling speech marketplace in many arenas. The state as speaker and sponsor or patron of speech can act...