Government Speech in Transition

Abstract

This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own expressive choices from free speech clause challenges by private speakers seeking to prevent or alter the delivery of the government’s own message. On the other hand, the Court’s failure to clarify that the government speech defense is a shield and not a sword -- much less to define and limit the scope of the defense (and thus the size of the shield) -- has emboldened some governments and courts to misappropriate the doctrine to punish individuals for speech that does not encroach on the government’s expressive interests.