Why Should the First Amendment Protect Government Speech When the Government Has Nothing To Say?

• Author: Steven G. Gey
• Pages: 04

Steven G. Gey. David and Deborah Fonvielle and Donald and Janet Hinkle Professor of Law, Florida State University.

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I Introduction

In several recent decisions, the United States Supreme Court has greatly enhanced the concept of government speech. Indeed, the concept of government speech seems to have become a First Amendment category unto itself, in the sense that it is used to fend off other First Amendment claims by private speakers and government employees. The concept has cropped up in several different contexts, including the regulation of speech by government employees,¹ the regulation of speech by individuals or private entities receiving government subsidies,² compulsory speech connected to mandatory student-fee regimes at public universities,³ government-coordinated cooperative advertising regimes,⁴ and, most recently, government-sponsored religious speech.⁵ The concept of government speech has also become the focus of several recent lower-court cases, including a spate of cases involving government-issued license plates bearing the antiabortion inscription “Choose Life.”⁶ The same premise underlies all these decisions: A majority of the Court seems to believe that in some situations the government has a legitimate interest in contributing its views on a particular subject to the marketplace of ideas, and in those situations private speakers should have no First Amendment claim that would inhibit the government in expressing its views.

It is unclear how the government’s interest in expressing itself fits into the Court’s constitutional doctrine, however. The Court resists calling See Garcetti v. Ceballos, 547 U.S. 410, 424 (2006) (holding that a government lawyer could be sanctioned for refusing to carry out his supervisor’s instructions in presenting a case to the court). See Rust v. Sullivan, 500 U.S. 173, 178 (1991) (holding that the government can dictate the speech of those hired to speak on the government’s behalf). See Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 232–33 (2000) (discussing government speech in the context of holding that a public university does not have to allow students to opt out of a mandatory student fee that is used to finance expression by various student groups); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 845–46 (1995) (discussing government speech in the context of holding that a public university must distribute student-activity fees on a content- and viewpoint-neutral basis to all student groups). See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 559 (2005) (holding that a mandatory fee to subsidize speech is not a compelled subsidy in violation of the First Amendment if the speech being subsidized is the government’s own). See Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1138 (2009) (holding that a city could place in its park a monument bearing the religious inscriptions of one faith, while denying the members of another faith the ability to place in the park their own monument with its own religious inscriptions). See Roach v. Stouffer, 560 F.3d 860, 871 (8th Cir. 2009) (holding that the State of Missouri was obligated to issue a “Choose Life” tag); Choose Life Ill., Inc. v. White, 547 F.3d 853, 855–56 (7th Cir. 2008) (holding that the Constitution does not prohibit the State of Illinois from refusing to issue a “Choose Life” tag), cert. denied, 130 S. Ct. 59 (2009); Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 973 (9th Cir. 2008) (holding that the State of Arizona was obligated to issue a “Choose Life” tag); infra Part III.F (discussing these three cases).Page 1262 government speech a First Amendment right of the government. In its most recent government speech opinion, the Court concluded that a government action that can be viewed as a form of government speech “is not subject to the Free Speech Clause.”⁷ There are dissenting voices on the Court who doubt whether “the recently minted government speech doctrine” exists at all—and if it does exist, whether it is a worthwhile development.⁸ These dissenting voices are, however, in a distinct minority on a Court whose majority is willing to apply the government speech doctrine in a growing range of different circumstances.

As a doctrinal matter, despite the Court’s protestations to the contrary, it is plausible to view the Court’s perspective on the government speech doctrine as a First Amendment right belonging to the government. Government speech claims always arise in the context of First Amendment disputes with private speakers, and in these cases the private speakers lose their First Amendment claim not because the Court views the private speakers’ expressive claims as weak, but rather because the Court views the government’s competing expressive interests as stronger.⁹ Hence, while the Court has not phrased the government speech doctrine in this way, the Court implicitly seems to view the government as having a First Amendment “right” to speak.

Regardless of how the Court ultimately decides to fit the government speech doctrine into its doctrinal matrix, there are several problems with the way in which the Court has implemented the doctrine. For example, it is not clear that squelching the speech of government employees or government-subsidized workers is necessary to protect the government’s right to speak on its own behalf about particular issues.¹⁰ Also, it is not at all clear that one can logically construe a government subsidy as “speech.”¹¹ The larger problem with the Court’s theory of governmentPage 1263 speech, the government is not really saying anything.¹² Even more problematic is the Court’s most recent government speech case, Pleasant Grove City, Utah v. Summum, in which the government asserts that it is indeed saying something but will not reveal the precise details of the message.¹³ In Summum, the Court enhances the government speech category of First Amendment law to the point that the government can evade other First Amendment restrictions on its behavior without engaging in the communicative behavior that supposedly justified the evasion in the first place.¹⁴

This Article casts a skeptical eye across the entire category of government speech. Although the Court’s initial premise—that, at times, the government has clear authority to speak on matters of public concern—is unexceptionable, it is not at all clear why this has anything to do with the First Amendment. It is unclear, for example, why the government should have the affirmative First Amendment right to speak, since the structural function of the First Amendment is to limit government power.¹⁵ Nor is it clear why the government should have a “government speech” First Amendment defense against private speech with which the government does not agree, since the Court has denied the government a defense against First Amendment violations in a range of other instances—including cases of potential incitement—where the government seems to have had a much more compelling case to silence its opponents.¹⁶

In short, the Court has not yet made the case for why the periodic need for the government to speak should justify the government in silencing private speakers who seek to express contrary views on the same subject. More importantly, it makes little sense to give the government a First Amendment right to speak if the government has nothing to say or refuses to announce its message. If one requires that the government communicate an actual message before having a First Amendment right to speak, then the category of government speech should have a significantly smaller impact on First Amendment law than it has had in the Court’s recent cases.

This Article will review the Court’s government speech cases, starting in Part II with the early cases that provided the framework for the category. These cases mostly deal with government efforts to squelch the speech of government employees or private persons who receive governmentPage 1264 subsidies. The problem in these cases is not so much that the government has nothing to say, but rather that there is no real reason why the government needs to stifle the speech of private persons to get an official government message across. Part III will turn to government speech cases in which it is substantially less clear that the government is actually saying anything. These cases mostly deal with government programs to collect money from citizens to operate some expressive program or forum. This Part will also address Summum, the Court’s most recent effort to explain the government speech model.

The root of the critique below is that the Court’s creation and expansion of a government speech category involves the creation of a new First Amendment analysis that allows the government to suppress political speech—the Court’s primary First Amendment category and the one that normally provides speakers with virtually absolute protection against government regulation of unsanctioned expression. The real point of these...