The government speech doctrine and its effect on the democratic process.

• Author: Graham, Alyssa

"When the government speaks ... to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position." (1)

1. INTRODUCTION

   Technological advances in an ever-increasing age of communication enable the dissemination of information and opinions by individuals and groups, including the government. (2) The ease of modern communication assists the government in reaching people, which is important because for a republican democracy to function, the government must be allowed to communicate its position. (3) The government relies on words to "explain, persuade, coerce, deplore, congratulate, implore, teach, inspire, and defend." (4) United States courts have formalized and protected the federal government's right to speak through the government speech doctrine. (5) This protection allows the government to freely communicate with the public, while also posing potential problems of undue government interference in the political process. (6)

   The government speech doctrine allows the government to promote government policies, or advance particular ideas, without subjecting the government's speech to First Amendment scrutiny. (7) Without the protection of the government speech doctrine, the government would run the risk of being continually accused of violating the First Amendment rights of other private speakers. (8) The doctrine is relatively new, and thus imprecise, with few Supreme Court decisions to guide its use. (9) Courts, however, have used the doctrine with increasing frequency in a wide array of circumstances, often arriving at different outcomes. (10)

   One of the major justifications for protecting government speech is the idea that the democratic process serves as a check on the messages of government. (11) If the government can interfere with the political process, however, it will no longer serve as a valid protection from a government-dominated marketplace of ideas. (12) The Republic, our system of government, was designed to protect the minority from the "tyranny of the majority," and the founders did not intend for the elected majority to easily circumvent the protections the Republic affords. (13) The protection afforded by the government speech doctrine may insulate government's interference with the political process from challenges in court. (14) While the government cannot contribute funds to an individual candidate's election campaign, it is less clear whether the government can expend funds in furtherance of a particular position on another election issue, thus directly intervening in the democratic process. (15)

   This Note will first analyze the origins and evolution of the government speech doctrine, and the distinctions between government speech doctrine, compelled speech, and public forum analysis. (16) Next, this Note will explore several states' responses to government speech in the electoral process, and will discuss laws restricting the use of public funds to advocate in elections. (17) Following an examination of state responses, this Note will explore differing approaches courts have taken in examining government's role and behavior in terms of advocacy in elections, and will then examine in detail several recent appellate court decisions discussing these issues. (18) Finally, in the Analysis section, this Note will address the need for a consistent, well-defined approach to government speech in the electoral process, and the need for limits on government advocacy regarding contested issues. (19) The Analysis section will look at the application of alternative approaches while arguing that the government should not be allowed to "campaign" in an election. (20) Finally, this Note will argue that the government, when funding speech on contested issues, should be required to open a public forum allowing equal access to opposing sides. (21)

2. HISTORY

   1. What is Government Speech: Origins and Evolution of the Government Speech Doctrine

      "Democratic governments must speak, for democracy is a two-way affair." (22) While the formal government speech doctrine is relatively new, the notion of speech by the government, and the problems associated with it, are not. (23) The courts of the United States continue to struggle with the appropriate place for government speech, and, especially in recent years, the Supreme Court has considered the relationship between government speech and the First Amendment in several cases. (24) Unfortunately, the Supreme Court has provided little concrete guidance in defining the limits of the government speech doctrine. (25)

      The origin of the doctrine dates back to the second half of the twentieth century, when the Supreme Court first examined government speech in cases dealing with the Establishment Clause and considered the government as a speaker in the marketplace of ideas. (26) In a pivotal case for the doctrine's creation, FCC v. League of Women Voters of California, (27) the Court examined a particular section of the Public Broadcasting Act prohibiting noncommercial educational broadcasting stations from receiving federal funds for public broadcasting that engaged in editorializing. (28) The majority held the ban invalid because it failed to limit anything beyond outright editorial speech, and because there were other regulations in place intended to maintain balance in the marketplace. (29)

      The doctrine itself, however, only gained independent prominence in the 1990s, beginning with the Rust v. Sullivan (30) decision, which held government speech exempt from First Amendment scrutiny. (31) In Rust, the Court examined the validity of prohibiting the use of Title X funds for abortion related activities. (32) The Court upheld the provision as a valid exercise of governmental power, reasoning that the government was not discriminating on the basis of viewpoint and is afforded the freedom to selectively fund programs. (33)

      Still, fourteen years after the Court's decision in Rust, Justice Souter, in his dissenting opinion in Johanns v. Livestock Marketing Ass'n, (34) discussed the relative newness of the doctrine and its imprecise nature, noting that the few times the Court has addressed the doctrine, it has "not gone much beyond such broad observations as '[t]he government as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties.'" (35) A gain, in 2009, several justices commented on the unrefined nature of the government speech doctrine in Pleasant Grove City v. Summum. (36) In his concurring opinion, Justice Stevens stated, "our decisions relying on the recently minted government speech doctrine to uphold government action have been few and, in my view, of doubtful merit." (37) Additionally, Justice Souter stated in his concurring opinion that, due to the doctrine's newness, "it would do well for us to go slow in setting its bounds." (38)

      The government speech doctrine essentially gives the State, as a speaker, "broad latitude" in content. (39) The doctrine affords the government a greater ability to express itself, and therefore identifying who is speaking becomes a difficult but key issue. (40) It is not always easy to determine when the government is speaking. (41) Because viewpoint neutrality is not required for government speech, or for private speech that expresses a governmental message, but is required in other instances, determining who is speaking makes a significant difference. (42)

      Whether speech qualifies as government speech turns on government's explicit or implicit approval of the message. (43) Lower courts have attempted to create more settled guidelines by establishing a four-factor test for determining whether the speech at issue is governmental. (44) The Supreme Court has yet to endorse the test. (45) A lower court must initially examine the "central 'purpose' of the program in which the speech in question occurs." (46) The court must then look at "the degree of 'editorial control' exercised by the government or private entities over the content of the speech." (47) The court must also determine the identity of the actual speaker. (48) Finally, the court must determine who "bears the 'ultimate responsibility' for the content of the speech." (49)

   2. Justification for Protecting Government Speech

      The government speech doctrine is justified, in large part, because the electoral process serves as a check on governmental expression. (50) "Democracy ... ensures that government is not untouchable when its speech rubs against the First Amendment interests of those who object to supporting it; if enough voters disagree with what government says, the next election will cancel the message." (51) Yet, there is potential for abuse. (52) Protecting the government's freedom to express opinions and convey information inherently limits individual freedom. (53) Government neutrality is an important constitutional principle dating back to the time of the framers, who feared incumbents using the privileges of their offices to maintain power. (54) In United States Civil Service Commission v. National Ass'n of Letter Carriers, (55) the Supreme Court spoke directly to the importance of a "government neutral" election process. (56) Potential abuses, such as government taking advantage of its ability to have its speech protected, could come from domination in the marketplace of ideas and the potential skewing of information to perpetuate control, making it difficult or impossible for citizens to change leadership if they become dissatisfied with the government's statements. (57)

   3. Alternative Approaches: The Distinction Between Government Speech, Compelled Speech, and Public Forum

      Compelled speech, another constitutional doctrine, also deals with government-conveyed messages. (58) In contrast to government speech...